Tennessee Divorce and Family Law

New Family Law Blog in Colorado

There is a new family law information source on the web in Colorado. Peter Mullison has created a blog called My Colorado Divorce Lawyer. Mr. Mullison has over a decade of legal experience and is sure to have some insightful information on family law. His blog already has a great deal of information that is specific to Colorado law and some general information that is relevant to all states. I would like to welcome Mr. Mullison to family law blogging and I look forward to his upcoming posts.

How is Child Custody Determined in Tennessee?

Tennessee courts use several factors to determine who gets custody of the children. The guiding factor in all TN custody decisions is the best interests of the child. Courts are prohibited from considering the gender of the parent in their child custody determinations. In making initial custody determinations the court will consider all relevant factors in the case including:

• The Willingness and ability of the parent to facilitate and encourage a close relationship between the child and the other parent.
• The ability of the parent to instruct, inspire, and encourage the child
• The strength, nature, and stability of the relationship between the child and the parent
• The parents refusal to attend a court ordered parent education class
• The disposition of the parent to provide the child with food, clothing, medical care, and education
• The degree to which a parent has been the primary caregiver
• The love, affection, and emotional ties existing between each parent and the child
• The emotional needs and developmental level of the child
• The character and physical and emotional fitness of the parent
• The importance of continuity in the child's life
• Evidence of abuse of the child or the other parent
• If the child is over 12, the preference of the child may be considered
• Any other factors that are relevant to the court

Automatic Injunctions in Divorce

In all divorces except those based only on irreconcilable differences, Tennessee law places automatic injunctions against the parties. Injunctions are things that the parties cannot do, such as transferring assets or hiding property. When a divorce is filed in Tennessee, T.C.A. § 36-4-106(d) requires the following notice of injunctions to be attached to the complaint:

Upon the filing of a petition for divorce or legal separation except on the sole ground of irreconcilable differences and upon personal service of the complaint and summons on the respondent or upon waiver and acceptance of service by the respondent, the following temporary injunctions shall be in effect against both parties until the final decree of divorce or order of legal separation is entered, the petition is dismissed, the parties reach agreement or until the court modifies or dissolves the injunction:

(1)(A) An injunction restraining and enjoining both parties from transferring, assigning, borrowing against, concealing or in any way dissipating or disposing, without the consent of the other party or an order of the court, of any marital property. Nothing herein is intended to preclude either of the parties from seeking broader injunctive relief from the court.

(B) Expenditures from current income to maintain the marital standard of living and the usual and ordinary costs of operating a business are not restricted by this injunction. Each party shall maintain records of all expenditures, copies of which shall be available to the other party upon request.

(2) An injunction restraining and enjoining both parties from voluntarily canceling, modifying, terminating, assigning or allowing to lapse for nonpayment of premiums, any insurance policy, including but not limited to life, health, disability, homeowners, renters and automobile, where such insurance policy provides coverage to either of the parties or the children, or that names either of the parties or the children as beneficiaries without the consent of the other party or an order of the court. “Modifying” includes any change in beneficiary status.

(3) An injunction restraining both parties from harassing, threatening, assaulting or abusing the other and from making disparaging remarks about the other to or in the presence of any children of the parties or to either party’s employer.

(4) An injunction restraining both parties from relocating any children of the parties outside the state of Tennessee, or more than one hundred (100) miles from the marital home, without the permission of the other party or an order of the court, except in the case of a removal based upon a well-founded fear of physical abuse against either the fleeing parent or the child. In such cases, upon the request of the non-relocating parent, the court will conduct an expedited hearing, by phone conference if appropriate, to determine the reasonableness of the relocation and to make such other orders as appropriate.

Nothing in these injunctions shall preclude either party from applying to the court for further temporary orders, an expanded temporary injunction or modification or revocation of this temporary injunction.

What if I Change My Mind About Divorce?

If you change your mind about divorce once you have filed a complaint there are certain steps that you should take. First you should contact your divorce attorney. It is important to contact your divorce lawyer so that they will stop working on the case. Most divorce lawyers charge by the hour, so the sooner you contact them, the more money you will save. Sometimes clients think that their divorce lawyer will get mad at them if they change their minds, this is not true. I am always happy when a client decides to try and save their marriage.

If you decide to reconcile with your spouse, don’t just move back in together. This could destroy your grounds for divorce if things do not work out. You are allowed to file for an order of reconciliation with the court. This order allows you to try and save the marriage, while preserving your grounds for divorce should the reconciliation fail. Contact your divorce lawyer and they will advise you on reconciliation orders. This will also save you money should you later decide to divorce.

Tennessee Alimony: Factors Courts Consider in Making Awards

Tennessee Courts will consider the following factors when awarding alimony:

• The relative earning capacity, obligations and resources of each party, and income from all sources
• The education and training of each party
• The duration of the marriage
• The age and condition of each party
• The need for the custodial parent to stay home
• The assets of each party
• The marital property division
• The standard of living during the marriage
• The relative fault of the parties, if the court deems it appropriate
• The extent to which each party has made such tangible and intangible contributions to the marriage, including contributing to the other parties education, training, or increased earning power
• Other factors that are necessary to consider the equities between the parties

Who Can Be Awarded Alimony in Tennessee?

Traditionally, alimony was only available to the innocent or wronged spouse in a divorce. Tennessee now allows either party to be awarded alimony, regardless of which party is awarded a divorce. Alimony may be awarded to either the man or woman, and the gender of the party may not be considered in awarding spousal support.

Alimony is appropriate when one party is found to be economically disadvantaged relative to the other party. The legislative preference in Tennessee is to award rehabilitative alimony. This type of alimony is meant to rehabilitate the disadvantaged spouse’s earning potential. The purpose is to make it so the spouse is no longer disadvantaged relative to the other spouse.

There are several types of alimony in Tennessee other than rehabilitative. You should speak to your Tennessee divorce lawyer about what type of alimony is right for you. In my next post I will talk about what factors courts consider in awarding alimony in a Tennessee Divorce.

Irreconcilable Differences Divorce: The Marital Dissolution Agreement (Part 3 of 3)

A divorce based on irreconcilable differences in Tennessee (TN), must have a marital dissolution agreement (MDA). An MDA is a written agreement between the parties that divides the property and debts equitably. The MDA must be signed by both parties and notarized to show that they are agreeing to a divorce and the division of assets.

The marital dissolution agreement will divide up the property between the spouses. It should tell who gets the house, the cars, the furniture, the china, etc. The MDA should also divide the marital debt. It will tell who is responsible for the mortgage, credit cards, and other debts from the marriage.

Once the MDA has been agreed upon by the parties, the court will make sure that it is an equitable agreement. If the court does not find the agreement sufficient and equitable, the case can be continued for further negotiation between the parties or the court may offer an amendment that they can accept.

Irreconcilable Differences Divorce: The Waiting Period (Part 2 of 3)

One question that frequently comes up with couples thinking about divorce is: How long does it take to get divorced? Under Tennessee law, a divorce based on irreconcilable differences must wait for a minimum statutory period before a final decree is granted.

If there are minor children (under 18) the waiting period is 90 days. If there are no unmarried minor children, then the period is 60 days. The time period starts when the complaint for divorce is filed with the appropriate Tennessee court.

These statutory time periods are the minimum time a party has to wait to get a divorce based on irreconcilable differences. However, it may take longer (and often does) because of waiting for court dates, papers, and the schedules of the parties and their lawyer.

Irreconcilable Differences Divorce (Part 1 of 3)

In Tennessee, a divorce based on irreconcilable differences has special requirements that are not used in other types of divorces. Irreconcilable differences is often referred to as a no fault divorce; however, that is not an accurate term. This type of divorce is not truly a no-fault divorce, because it requires agreement by both parties.

Under this type of divorce, both parties must agree in writing on the custody and support of the children and for the distribution of property and assets. The parties agree to split the marital property and debts in a document known as a Marital Dissolution Agreement (MDA). Provisions for child custody, visitation, and child support are made in a document called a Permanent Parenting Plan. Both parties must be in agreement to the terms of these documents and the court must find that they are adequate and sufficient. The property settlement must be found to be an equitable distribution between the parties.

The basic special provisions that must be made are:
• A marital dissolution agreement
• A permanent parenting plan (if there are minor children)
• A mandatory waiting period after filing for divorce
• Agreement between the divorcing parties

Proposed Law Would Create a Defense to Violation of Protection Order

Two bills have been proposed in the Tennessee legislature that would create a defense to a violation of a protection order (order of protection). House bill HB1139 and Senate bill SB1882 attempt to fill a gap in the current law by amending Tennessee Code Annotated section 36-3-610.

Under the current law a person who violates an order of protection can be held in contempt of court by having contact with the party that took out the order. Being held in contempt means that the person will face jail and a fine. This is so even if the party that took out the order invites the violator to visit with them.

If the bills pass, a defendant will be able to raise the defense of consent. The text of the house bill reads:

It shall be a defense to any charge of civil or criminal contempt that the
petitioner initiated or consented to the contact, with the defendant, that is the basis for
the charge of contempt.