Archive for the ‘Divorce’ Category

Presumption of Divorce in Tennessee

Wednesday, May 12th, 2010

Normally, a divorce in Tennessee occurs when one or both parties decide to end the marriage and file appropriate papers. Occasionally, however, a divorce is presumed after a spouse disappears.

If the spouse is missing with no evidence that he or she is still alive being shown, a marriage entered into by the other party more than five years after the disappearance is presumed to be valid. This presumption can be rebutted by a showing that the other party is still alive, but there is no requirement that the abandoned or widowed party perform a full investigation. Courts in Tennessee are historically lenient with spouses left alone for more than five years, and are quick to establish a divorce when appropriate – especially if there are children who will be affected by the decision.

If there is a well-founded rumor that the missing party has died, Tennessee courts will presume that death and recognize a new marriage without the necessity of a divorce after two years have elapsed. The statute that allows this, called an “Enoch Arden” statute, is often seen applied in situation like the World Trade Center bombing on 9/11 or after a natural disaster – situations where it is likely that the specific person died, but no identifiable remains were recovered.
If the party presumed dead returns after his or her spouse has remarried, the spouse formerly presumed dead has the option of renewing the former marriage or dissolving it. If the marriage is renewed, the subsequent marriage is voided as a bigamous marriage.

Statutes like the ones mentioned above exist to save the expense and stress of divorce from a party missing and presumed dead. Obviously, a missing spouse is an emotional situation; unfortunately, it can also come bundled with complex legal issues. If you are involved in a divorce case, presumed or not, you should have an attorney to represent your interest. For more information on divorce or other family law issues, click here.

Breaking Developments in Child Custody

Wednesday, March 17th, 2010

As reported in The Tennessean, a bill in front of the Tennessee legislature proposes to require custody to be split equally unless there is a showing of “clear and convincing evidence that one parent is unfit.” A clear and convincing evidence standard is a hefty one, lying somewhere between “more likely than not” and “beyond a reasonable doubt.”

The repercussions of this bill, if it passes, will be interesting to see; obviously, there are benefits to presuming that custody should be split equally, but there are also detriments to requiring such a high standard of proof. First, it should be noted that this only applies to cases wherein an agreement for custody cannot be reached by the parties (5-10% of divorces, according to article from The Tennessean linked above; this amount is presumably excluding divorces with no children involved). In cases with no foreseeable agreement and no clear and convincing evidence that one or both parents are unfit to have custody, it seems reasonable to presume that both parents should split the custody evenly. In cases where both parents played a major, if not necessarily equal, role in raising the child(ren) before the divorce, it is hardly fair to deprive one of custody. In some cases, one parent has stayed at home to raise children while the other parent has maintained a career to support the family – in those cases, it is reasonable to say that both have played a role in raising the child and that neither is an unfit parent, even if the working parent was not present with the child the majority of the time.

The detriments if this bill were to pass are many, however. Splitting custody equally, even between two equally perfect parents, is stressful to a child. If the parents live in separate school districts, where should the child attend school? Which parent’s house is the child going to recognize as “home?” A common solution, historically, to both of these has been to declare a primary custodian and then allow ample visitation during school holidays. If custody is to be split equally, though, having a child for two days on the weekend is not the same as five days during the work/schoolweek. If the parents live in different states, the complexities of actually fulfilling the order grow to the absurd – should the child be transported back and forth every six months and have no physical contact with the other parent for half a year?

In addition, if this bill passes it will likely be rare to see a contested divorce without accusations of unfit parenting being thrown around. Not only does this impact judicial efficiency, this also has a detrimental effect on the children involved. A cornerstone of family law has long been that the best interests of the child trump almost every other consideration, and further that each parent must make an effort not to insult the other in the child’s presence. This bill essentially offers a reward for doing just that.

Child custody is a major issue in most divorces and it is important to understand the rights and obligations of parents during and after the divorce proceedings. If you are involved in a custody dispute or divorce, you should seek legal counsel. For more information on custody and other family law issues, click here.

Requirements for Annulment in Tennessee

Wednesday, March 3rd, 2010

We have touched briefly on the subject of annulment once before on this blog, but there is enough confusion about the topic that we feel it is worth another look. At least once each week our office gets a call for someone interested in a divorce or annulment. In Tennessee, we have to explain, an annulment is a highly specific form of marital dissolution.

In order to be eligible for an annulment in Tennessee, the marriage must have been void due to public policy or voidable at the discretion of the “victim” party. A marriage void due to public policy is generally one of three situations: a homosexual marriage, an incestuous marriage, or a bigamous marriage. A marriage voidable at the discretion of the “victim” party is usually voidable because consent to marriage was not properly available. This can arise due to an underage party, duress, mistake, or lack of capacity to contract. A marriage can also be voidable due to impotence in some situations, or if the woman becomes pregnant by a man other than her husband without her husband’s knowledge.

A void marriage is treated by the state of Tennessee as if it had never occurred, and is thus eligible for annulment. A voidable marriage is treated by the state of Tennessee as if it had occurred, but should not have and can be eliminated legally as if it had never occurred. Annulment is, then, not so much a form of ending a marriage but a method of giving official and legal recognition of a false marriage.

In most situations, parties to a divorce ask for an annulment because they regret the decision to marry. If that decision was made knowingly by two non-related single adults of opposite gender with the capacity to contract, an annulment is probably not available. A divorce is certainly available, however.

If you are in a marriage that is not valid or is not working out well, an annulment or divorce may be the correct answer. You should consult an attorney in your area to discuss your options. For more information on annulments, divorce, and other family law issues, click here.

Notice of Divorce Proceedings

Friday, November 20th, 2009

One complaint people make regarding divorces is that the proceedings can take too long – in a complex case, a divorce can take months or even years to complete. Imagine receiving word from the local court that your divorce was final several months ago; now imagine that you did not realize a divorce action was pending against you. A divorce is always life-changing – it is unfair to expect people to be surprised by the news.

Tennessee requires that a defendant in any suit, including divorce, be given adequate notice of the action in order to prepare a defense. Under Tennessee law, notice to a defendant should generally be given personally or by certified mailing; if the address of the defendant cannot be determined, publication in a major newspaper may be sufficient. In broad terms, the court will recognize notice having been given if it was done in a manner reasonably calculated to actually inform the defendant of the proceeding.

If a divorce proceeding is finalized with a divorce decree and there was no actual or constructive notice to the defendant, that defendant has opportunity to challenge the decision and potentially have the decree vacated. While the situation will vary and it seems likely that another divorce suit will be brought if the first is vacated, it is the policy of the State of Tennessee that both parties have opportunity to be heard. For more information about divorce and other family law issues, click here.

The Effects of Divorce on Income Tax

Monday, November 9th, 2009

The splitting of marital assets and the granting of custody each has an effect on taxation of the parties – if astutely planned, ceding assets to the spouse who will be in a lower tax bracket can increase the value of the overall marital estate. In the child custody agreement, the parents must decide which is permitted to claim each child as a dependant for tax purposes.

The modern Internal Revenue Code – the dreaded “TAX LAW” – provides specifically that a transfer of property incident to divorce is not subject to tax consequences. The recipient of the property takes it with a basis equal to the adjusted basis of the transferor. For the uninitiated, this basically means that property appraised at $50,000 is probably less valuable than $50,000 in cash; the property was purchased for some amount, which for our purposes can be considered the basis.* If the purchase price was $20,000, upon sale of the property the recipient will pay taxes on the difference – in this case, the recipient will pay taxes on a gain of $30,000. If the recipient had just taken the $50,000 cash instead, there would be no realized gain and no additional taxation.

Alimony is a special case under the IRC. Essentially, it is treated as income for the party receiving it – as you might expect. In order to avoid double taxation, however, it is deductible from the gross income of the party paying alimony. Since the party receiving alimony is normally going to be in a lower tax bracket, this once again has the benefit of saving a little money at tax time.

The IRC provides that the parent with custody more than 50% of the time can claim the child as a dependant unless the divorce decree specifically provides otherwise or if the custodian parent releases the dependency exemption to the other parent in a written decree. Child support, unlike alimony, is not includible in the recipient’s income and deductible in the transferor’s. The idea behind child support is not a replacement of expected income that was lost in the split, but is the amount of income that would have been spent on the child. Since income is taxed before you buy things for your kids, it is reasonable to require the paying parent to include the amount of child support in his or her gross taxable income.
This is, of course, a very broad and simplified explanation of the tax consequences of alimony and child custody/support and should not be relied upon to make major decisions. Speak to an attorney or tax professional if you are concerned with the effects of your divorce on your income taxes. More information about divorce and other family law issues can be found here.

* This is a very simplified explanation. The basis is not always just the purchase price.

Equitably Dividing Marital Property

Friday, November 6th, 2009

At its core, divorce is a simple idea – a married couple separates and become legally and financially independent of each other. Becoming “legally and financially independent” is not necessarily easy to do, however. After determining that a divorce is appropriate in light of the circumstances, the court must determine what property in the marriage is “marital property” and then determine how to most equitably divide that property between the parties.

The simplest method of identifying marital property is to take all property owned by the married couple and removing everything that is separate property. Any separate property is not divided by the court. Tennessee defines separate property as follows:

36-4-121. Distribution of marital property. –

(b) For purposes of this chapter:

(2) “Separate property” means:
(A) All real and personal property owned by a spouse before marriage, including, but not limited to, assets held in individual retirement accounts (IRAs) as that term is defined in the Internal Revenue Code of 1986, as amended;
(B) Property acquired in exchange for property acquired before the marriage;
(C) Income from and appreciation of property owned by a spouse before marriage except when characterized as marital property under subdivision (b)(1);
(D) Property acquired by a spouse at any time by gift, bequest, devise or descent;
(E) Pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
(F) Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.

In simpler terms, separate property is anything owned by one party before the marriage, anything directly purchased or acquired through the trade or sell of anything owned by one party before the marriage, and anything specifically given to one party during the marriage. Everything else is marital property.

In Tennessee, the court may assign to each party any marital property or order the sale of any marital property with the proceeds being disbursed as the court deems appropriate and equitable. “Equitable” does not mean “equal,” though – the legislature of Tennessee has set forth factors that should be followed.
36-4-121. Distribution of marital property. –

(c) In making equitable division of marital property, the court shall consider all relevant factors including:

(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and income;
(5) The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is to become effective;
(9) The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the parties.

(d) The court may award the family home and household effects, or the right to live therein and use the household effects for a reasonable period, to either party, but shall give special consideration to a spouse having physical custody of a child or children of the marriage.

Essentially, the court considers the situation that each party was in when the marriage began and the individual estates of each party after the marriage and attempts to be fair. If the marriage lasted only a year, the court will try to reset each party to the lifestyle that he or she enjoyed before the marriage; if the marriage lasted forty years, the court will attempt to ensure that the parties live as similarly as possible after the marriage as they did during the marriage.

Subsection (d), seen above, gives some interesting insight into the equitable distribution.  Child custody determinations are a separate issue from the equitable distribution of marital property, but the results of a custody dispute can factor into the equitable distribution.

The identification of marital property can be more complicated when degrees or professional licenses were earned, or when benefits or retirement accounts accrued, during the marriage. The identification and equitable distribution of property is necessarily unique to the circumstances surrounding the marriage. Further information about divorce and other family law issues can be found here.

Where Can I Get a Divorce?

Friday, November 6th, 2009

As a general rule, family law is subject to state jurisdiction and the federal courts cannot hear family law cases – even if the issue involves citizens of different states, which would normally grant jurisdiction to a federal court. In order to assert jurisdiction to hear a divorce, a court must find that at least one party in the action is domiciled in that state. Because of this, in some cases two states may each have jurisdiction to hear the divorce. In Tennessee, being a resident of Tennessee for six months prior to filing for divorce is almost always sufficient to create jurisdiction.

If the husband and wife live and are domiciled in different states, either of those states can hear the divorce proceedings. Once either state issues a final divorce decree, however, the other state immediately loses jurisdiction because there is no longer a valid marriage to sever. If concurrent divorce cases between the same parties are ongoing in different states, either state may elect to abate its own proceedings in deference to the other, but neither is required to do so nor does one state have “stronger” jurisdiction.

Normally, at least one party to the divorce must meet a state’s residency requirements in order for that state to have jurisdiction over the issue. If both husband and wife participate willingly (not necessarily agreeably) in divorce proceedings in a third state, that state can issue a valid divorce.

As is always true, every situation is different and none of this can be taken to apply without further consultation. While the above rules are generally true, it is best to consult an expert to determine whether a state has appropriate jurisdiction to hear your divorce. Further information about divorce and other family law issues can be found here.

Alimony in Tennessee

Friday, October 30th, 2009

In any action for divorce, legal separation, or separate maintenance, T.C.A. §36-5-121 provides that the court can award alimony to either party if it feels that such an award is necessary out of fairness to the parties. Alimony can be awarded in several different forms: rehabilitative alimony, alimony in futuro, transitional alimony, and alimony in solido.

Rehabilitative alimony will generally be awarded where one spouse is economically disadvantaged relative to the other spouse. Rehabilitative alimony is awarded to ensure that “the economically disadvantaged spouse’s standard of living after the divorce [is] to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.”

Alimony in futuro will generally be awarded where there is relative economic disadvantage to one spouse and rehabilitation is not feasible. It may also be awarded where rehabilitation is only partially feasible. It will either be awarded on a long-term basis or until remarriage or death of the recipient. The principle behind alimony in futuro is that rehabilitation is not feasible or necessary but the disadvantaged spouse needs some assistance in adjusting to the economic consequences of divorce or separation.

Transitional alimony is also awarded where the disadvantaged spouse needs assistance in adjusting to the economic consequences of divorce or separation and rehabilitation is not feasible. Transitional alimony is a lump sum of money paid by one party to the other for a determinate period of time. Unlike alimony in futuro, transitional alimony is nonmodifiable unless one of the conditions listed in T.C.A. §36-5-121(g)(2) is met.

Alimony in solido is a form of long-term alimony that is paid in a lump sum, “the total amount of which is calculable on the date the decree is entered, but which is not designated as transitional alimony.” Despite the name, alimony in solido can actually be paid in installments, provided that the payments are ordered over a definite period of time and the amount of alimony to be paid is ascertainable when awarded. Alimony in solido can also include attorney fees. The purpose of alimony in solido is to provide financial support to a spouse.

This is just a brief overview of the different types of alimony available in Tennessee. The type and amount of alimony to be awarded will depend on the facts and circumstances of the case. Further information about alimony and other family law issues can be found here.