Archive for December, 2009

The Factors Considered in Awarding Spousal Support

Wednesday, December 30th, 2009

Alimony has been mentioned before in a post on this blog, but we have yet to discuss in detail the factors the state of Tennessee has set forth for consideration by the court in awarding alimony. For most situations, alimony is awarded to set the parties either as they would be had the marriage not occurred or as they would be had the divorce not occurred, depending on how long the marriage lasted.

Tennessee statutes set forth several factors the court may consider when determining alimony amounts:

- The needs, resources, and earning capacity of each party
- The education and training of each party, or the ability to undergo such education and training
- The duration of the marriage
- The age and mental condition of each party
- The physical condition of each party
- The custodianship of minor children (a parent with custody is more inconvenienced by working outside the home)
- Prenuptial agreements
- Standards of living established during the marriage
- Contributions to marital property and as a homemaker
- Contributions to the education, training, or increased earning power of the other party
- Relative fault of the parties
- Tax consequences
- Any other factor necessary for equity

Alimony is a volatile issue and the court has discretion to assign an amount that it determines is equitable. If you are in divorce proceedings, it’s important that you contact an attorney to ensure that your interests are protected. For more information on alimony and other family issues, click here.

Posted in Alimony, Income Tax, Marital Dissolution | No Comments »

Capacity to Marry

Monday, December 28th, 2009

Recently, we posted an article to this blog regarding the formal requirements for a marriage in Tennessee. There are several requirements that the parties themselves must meet, as well.

The parties must be at least eighteen years old in order to marry without permission from the court or a parent/guardian. Although normally a minor cannot be a party to an enforceable contract because minors lack legal capacity to enter the contract, for marriages the state of Tennessee does allow minors over the age of fifteen to validate a marriage contract so long as the parents or guardians of the party join in the license application. For parties fifteen and younger, a marriage may be annulled unless an authorized party (normally a judge) waives the age restriction for good cause.
In addition, the parties must meet the normal contract standards for capacity. Notably, the parties may not be drunk, insane, or imbeciles.

The state of Tennessee does not allow or recognize incestuous marriages. In Tennessee, a marriage is invalid if one party attempts to marry:

- A lineal ancestor or descendent (grandparent, parent, child, grandchild, etc.)
- A lineal ancestor or descendent of either parent (grandparent, brother, sister)
- The child of a grandparent (aunt, uncle)
- A lineal descendent of a spouse (stepchild)
- The spouse of a parent or descendent (stepparent, son/daughter-in-law)

The state of Tennessee also does not permit marriage between any couple not consisting of one (1) man and one (1) woman. The clerk who issues licenses is forbidden to issue a license to two men or two women, and if the clerk does so the marriage is still invalid.

Incest and homosexuality, along with bigamy, so offend the state of Tennessee that even if a marriage is valid elsewhere, it is not recognized in Tennessee if it would violate either of these code sections. If you have questions or concerns about the capacity to marry, you should consult an attorney. For more information on marriage and other family law issues, click here.

Posted in Marriage | No Comments »

Adoption in Tennessee

Saturday, December 26th, 2009

Adoption, in short, is the transfer of parental rights and obligations entirely from one party to another through the legal system. In Tennessee the process can be broken into two parts in order to better understand what is actually happening.

First, the state terminates the parental rights and obligations of the current parent(s) of the child. There must be ample grounds for this to the point that the court determines that it is in the best interests of the child not to remain with those parents. Specifically, the petition to terminate rights “shall have the effect of forever severing all of the rights, responsibilities, and obligations of the parent(s) or guardian(s) to the child who is the subject of the order, and of the child to those parent(s) or guardian(s).” As with most family law issues, the legislature has left the courts with sufficient leeway to ensure that the correct result is reached, but some factors sufficient to support termination of parental rights are set forth in the statutes:

- Abandonment by the parent(s)
- Substantial noncompliance with an ordered Permanent Parenting Agreement
- Abuse or neglect that are unlikely to be remedied at an early date, such that the child has been removed for a period of at least six months
- Severe child abuse
- The parent or guardian has been sentenced to at least two years in prison for conduct against the child in question
- The parent or guardian has been confined in a detention/correctional facility for at least 10 years, and the child will be 18 before the end of the sentence
- The parent or guardian has been found guilty or civilly liable for the wrongful death of the other parent or guardian

In addition, a finding that a parent is incompetent to care for the child is sufficient to terminate parental rights, if in the court’s discretion it is in the best interests of the child.

Once parental rights have been terminated, the state must grant parental rights to a new person or persons. To be eligible to adopt, a person must be over eighteen years old, and must have physical custody or demonstrate to the court a right to receive custody of the child, unless they are filing an intervening petition seeking to adopt. Non-relatives must be residents of the state of Tennessee.

From the time that parental rights are terminated until the adoption is finalized, the child is placed in a foster home. The foster parents are given first preference in adopting the child, if the child has been in foster care for at least twelve months. The foster parents must meet all the standard requirements imposed on prospective adopting parents otherwise.
The requirements for adoption as a prospective parent determine whether the potential parents are financially capable of caring for the child as well as determining if they are mentally and physically fit to be parents.

If you are interested in adopting a child or at risk of losing parental rights, you should consult an attorney. For more information on adoption and other family law issues, click here.

Posted in Adoption, Parental Obligations, Parental Rights | No Comments »

Orders of Protection

Wednesday, December 23rd, 2009

An order of protection in Tennessee is similar to a restraining order or temporary injunction in that it affords some measure of relief before a trial is held. All three are used when a person is reasonably in danger or personal injury or loss of something for which he or she cannot be compensated through a verdict in his or her favor. Orders of protection are specialized in that they are available only to victims subjected to, threatened with, or reasonably fearful of domestic abuse, stalking, or sexual assault by a current or former spouse, live-in acquaintance, dating or sexual partner, or relative (blood, marriage, or adoption). An order of protection is also available against the adult child of one of the aforementioned parties.

In order to obtain an order of protection against an eligible party, the person seeking the order must not be the primary aggressor in the conflict. The person seeking the order must file a sworn petition alleging the abuse or threat or fear of abuse in the county where the alleged aggressor resides, or the county in which the abuse occurred. If the aggressor does not reside in the state of Tennessee, the petition may be filed in the county where the person seeking the order resides. An order of protection may last as long as one year, but if the order is issued immediately for good cause, the person against whom it is issued must be personally served, and is entitled to a hearing within fifteen days of the service. At that hearing, the court may dissolve or set a time limit on the order.

An order of protection may order that the person against whom it is ordered:

- Refrain from committing or threatening abuse, stalking, or sexual assault against the person seeking the order or that person’s minor children;
- Refrain from contacting or communicating with the person seeking the order directly or indirectly;
- Refrain from entering the residence of the person seeking the order (essentially evicting the person against whom the order is directed);
- Provide suitable housing for the person seeking the order if the person against whom it is ordered is the sole owner or lessee of the shared residence;
- Attend counseling programs; and/or
- Pay attorney fees and court costs.

In addition, the order of protection may:

- Award temporary custody or visitation of minor children of the parties to the party seeking the order;
- Award financial support to the person seeking the order;
- Direct the care of any pets or animals to the person seeking the order or to an appropriate animal care facility other than the person against whom the order is issued.

If the person against whom the order was issued violates the order, the defendant may be held in contempt of court and face all applicable punishments, plus fined fifty dollars for violation of the order.

If you are threatened with or have been the victim of abuse, stalking, or sexual abuse and you think that an order of protection is appropriate, you should contact an attorney. For more information on orders of protection and other family law issues, click here.

Posted in Domestic Violence | 1 Comment »

Formal Requirements for Marriage

Monday, December 21st, 2009

As discussed in another post on this blog, the state of Tennessee does not recognize common law marriages. The state has set forth several specific formal requirements in order to validate a marriage. Those requirements are broadly split into licensure and solemnization.

The first requirement for marriage is a valid marriage license. The application must include basic information, such as names, ages, addresses, and social security numbers of the parties to be married, as well as the names of their parents or guardians. After a valid license has been issued, there must be at least three days before the marriage can be finalized, and notice must be given to the parents or guardians if either party is underage. The waiting period can be waived for good cause by a judge, county executive, or county clerk.

A clerk is prohibited from issuing a license for any marriage against the policy of the state (bigamous, incestuous, or homosexual) or to anyone who appears to be drunk, insane, or an imbecile. If the clerk does issue a license to a person who appears to be drunk, insane, or an imbecile, the marriage is voidable but is not automatically void.
After the marriage ceremony, discussed below, the license must be returned to the clerk for filing. There is no longer a requirement for medical testing before marriage in the state of Tennessee.

The second requirement for marriage is solemnization – the marriage must be solemnized by someone authorized to do so. Authorized parties include all ministers and rabbis over the age of 18, all county executives, judges, chancellors, former judges or chancellors, former executives, the state governor, the current or former speaker of the senate or house of representatives, the county clerks, and municipal mayors. Quaker marriages do not require an officiant.
There is no particular procedure for marriage solemnization outlined in the state laws, but the parties must directly declare each other as husband and wife.

If you have questions or concerns about the validity of a current or upcoming marriage, you should consult an attorney. For more information on marriage and other family law issues, click here.

Posted in Marriage | 1 Comment »

Termination of Parental Rights

Wednesday, December 16th, 2009

The married parents of a child have inherent rights and responsibilities that attach automatically upon the birth of the child. Unmarried parents have the same rights and responsibilities, so long as paternity (or maternity, rarely) can be and is proven. The state of Tennessee recognizes, however, that some parents are unfit or unable to raise children and therefore has created a mechanism by which the parental rights can be removed. Obviously, the rights of parenting must be vested in some party, whether through adoption or simply by placing the rights and custody solely with the other parent.

The termination of parental rights must be done by a court in the state of Tennessee. That Court must find “clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established;” and “that termination of the parent’s or guardian’s rights is in the best interests of the child.” The grounds for termination of parental or guardianship rights are generally based on a situation of abuse or neglect, although the statute makes it clear that the offense must be great in order to completely terminate parental rights. Severe child abuse, imprisonment for two years or more for conduct towards the child, cause of wrongful death for the other parent or a sibling, and things of that nature are the given standards.

The right to parent one’s children is a cornerstone of our legal system and in order to terminate that right, the courts in Tennessee must see no reasonable alternative. If you are in danger of losing your parental rights, or are the parent, extended family member, prospective adoptive parent, or the guardian ad litem of a child who is suffering neglect or abuse, you should consult an attorney about the situation and necessary defenses or possible action. For more information on parental rights and other family law issues, click here.

Posted in Child Custody, Parental Obligations, Parental Rights | No Comments »

Marriage by Estoppel (The Putative Spouse Doctrine)

Tuesday, December 15th, 2009

In Tennesee, as in all states, a marriage against the public policy is void ab initio, i.e., legally never exists. The most common void marriages are those that are bigamous, homosexual, or incestuous. Bigamous and incestuous marriages are the most interesting legally, since it is possible that one or both parties is unaware of the offensive nature of the relationship at the time of marriage.

A man or woman leading a secret life and maintaining multiple marriages sounds like a bad movie plot – and it usually is. Most bigamous marriages are the result of an ineffective divorce and remarriage thereafter. In those cases, the new spouse may not even be aware of the earlier marriage. The state of Tennessee recognizes that with marriage comes rights, responsibilities, and obligations that cannot fairly be pulled away from an innocent party to a bigamous relationship. Because of that, the state has created a purely legal construct called “the putative spouse.”

A putative spouse is the innocent spouse in an invalid marriage – the spouse that did not know, could not have known, and should not have known that the marriage was invalid. Under the doctrine, the marriage is still invalid. No matter how unfair the situation, the state of Tennessee will not recognize a bigamous, incestuous, or homosexual marriage. The innocent spouse in the relationship must have believed in good faith that he or she was in a valid marriage. If that is the case, the putative spouse is entitled to the property and civil rights of a valid spouse, although the marriage was invalid. A putative spouse may even be entitled to alimony, as well as distribution of “marital” assets and custody.

Because the marriage was invalid, there is no need for annulment or divorce. If you find yourself in an invalid marriage, you should consult an attorney for help understanding and enforcing your rights. For more information on marriage, divorce, and other family law issues, click here.

Posted in Marital Property, Marriage | No Comments »

Custodial Interference

Monday, December 14th, 2009

Adoption is an interesting mechanic – essentially, the legal system replaces the parents of a child. Most people are familiar with the basic concept, and probably know someone who has adopted or who has been adopted. There are a lot of legal issues associated with the process, of course, since it is a legal construction.

The first real problem that many adopting parents face is that of custodial interference by the biological parents of the child. Once a child has been adopted, the parental relationship is legally severed between the biological parents and the child. If the biological parents physically obtain custody of the child without a court order, they have essentially committed kidnapping. Recognizing the unique situation, the state of Tennessee has created statutory language to that effect:

36-1-123 Biological parents illegally obtaining custody of a child — Custodial interference.
Any biological or prior legal parents or guardian whose rights to a child have been terminated by order of any court under this part or any other title or by the laws of any other state or territory, or foreign country, or by a surrender, parental consent, or waiver of interest, and who shall, otherwise than by legal process, obtain custody of the child shall be in violation of and shall be subject to prosecution pursuant to the provisions of § 39-13-306.

If you have a child, either biologically or through adoption, it is important to respect and understand the legal boundaries and responsibilities that come with a child. If you have lost custody of your biological child, you should contact an attorney about obtaining legal custody through the court system. For more information on child custody and other family law issues, click here.

Posted in Adoption, Child Custody, Parental Obligations, Parental Rights | No Comments »

Child Support Obligations for Non-Married Parents

Thursday, December 10th, 2009

Child support payments are usually mentioned in the same breath as alimony and visitation, as part of a divorce settlement. In practice, even a person who has never been married can be ordered and obligated to pay child support to the other parent of his or her child. At its root, child support is money given to compensate one parent for the expenses necessary to raise a child, not as payment for the work involved. The amount of obligation should be comparable to the amount that the parent would have expended in raising the child had the parents done so together.

In order to ensure that there is no obligation to support a child other than your own, the State of Tennessee requires that parentage of a child be proven before attaching an obligation. A child born in wedlock is presumed to be the natural child of the married parents, although that presumption can be rebutted with evidence to the contrary; a child born out of wedlock has no presumed father. If paternity testing shows that an individual is the father of the child to a 99.9% probability and the father does not raise a valid defense, a court may order child support under Tenn. Code Ann. § 24-7-112(2)(D)(ii). The statutory defenses available to the father are as follows: (i) the putative father had undergone sterilization or was otherwise medically unable to father a child during the probable period of conception; (ii) the putative father had no access to the child’s mother during the probable period of conception; (iii) the putative father has or had an identical twin who had sexual relations with the child’s mother during the time of conception; (iv) the putative father presents evidence that another man had sexual relations with the child’s mother during the probable time of conception. If (iv) is raised, the court shall order a genetic test of that other man; if that test shows at least 95% chance of paternity, it is an effective defense to the presumption.

If you are a single parent to a child or children born out of wedlock, you may be entitled to support or obligated to pay support. Every situation is different, and the information contained in this article should be taken only as advisory. For more information about child support and other family issues, click here.

Posted in Child Support, Parental Obligations, Parental Rights | No Comments »

Common Law Marriages in Tennessee

Wednesday, December 9th, 2009

A common law marriage is a marriage entered into without ceremony or license – if a couple cohabitates, holds themselves out as husband and wife, and raises a family, a common law marriage may be recognized. The state of Tennessee does not permit common law marriages within its boundaries, but gives full faith and credit to valid common law marriages from other states, so long as the marriage is not “offensive” to the policies of the state.

Historically, common law marriages were recognized pretty much everywhere. The population of the United States was not always ready with access to a clerk’s office or a clergyman to license or perform the ceremony, and the states saw little harm in recognizing a marriage that the community and families of the participants clearly recognized.

In the early 1980s, Tennessee ceased recognition of common law marriages for simplicity’s sake. While it may seem counterintuitive to require more paperwork and ceremony in order to achieve simplicity, division of property upon death or divorce are already complicated and stressful enough without the added worry of determining whether or not the party were actually married. Since access to licensure and an official authorized to wed is now available to essentially everyone, and the fees associated are minimal, the State determined that it was not unduly burdensome to require that parties wishing to marry carry out certain tasks.

Although common law marriages can no longer occur in Tennessee, the state does recognize valid marriages from other states. If you are concerned as to the validity of a marriage in Tennessee or have other questions regarding family law issues, you should contact an attorney. For more information on family issues, click here.

Posted in Marriage | 1 Comment »

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