Tennessee Family Law Questions & Answers
Tennessee Family Law Questions & Answers is a daily show dedicated to answering questions often asked by family law consumers to family law attorneys. The show covers a wide range of Tennessee family law subjects, from divorce to adoption and every thing in between.
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How is child support calculated in Tennessee?
07/25/2016
How is child support calculated in Tennessee?
No one really likes to pay child support. It is, perhaps, one of the most contentious issues in cases involving children. In my practice, I have discovered several reasons for this. First, when child support is paid, it is paid to the other parent. The greater the animosity between the parents, the more difficult it is to make those payment. It creates the illusion that the person paying the child support is actually paying the money for the benefit of the other parent and not the children. In Tennessee we have a comprehensive set of guidelines used to determine the amount of child support that will be paid. Based upon the guidelines, the appropriate figures are inserted into Tennessee’s Child Support Worksheet by using a child support calculator supplied by the state. The result is a dollar amount that is used as child support. The following are the five factors that go into the child support formula in Tennessee: The income of each parent The amount of time each parent spends with the child The amount paid for health insurance and recurring medical expenses Childcare expenses Credit for other children As always, it is important to seek out a professional for help with issues involving child support. It is also important to understand and be educated in the way child support is calculated in Tennessee. RESOURCES
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Understanding the Tennessee court system
07/21/2016
Understanding the Tennessee court system
A good understanding of the court system is essential for both attorneys and for consumers of the judicial system. Additionally, it is important to know which courts in your county have jurisdiction over which type of cases. In this episode, we discuss the structure of Tennessee’s judicial system. Resources
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How is property divided in Tennessee divorce cases?
07/19/2016
How is property divided in Tennessee divorce cases?
In Tennessee, courts are required to equitably divide marital property between the parties in a divorce. The court will usually attempt to determine the value of all marital property and then attempt to determine the proper division of that property. Tennessee is a dual property state as opposed to an all property state. In a dual property state, the court may only divide property this is considered marital property. Once the marital property is identified, the court will determine the division of the property based on eleven factors set forth in the divorce statutes. In the vast majority of divorce cases, the equitable division of marital property between the parties is a simple process of dividing the property in half. In other words, in most cases the court will make a 50/50 division between the parties. Nonetheless, there are situations where the court will be forced to consider the equities and make other than an equal division of the property.
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What rights do Grandparents have in Tennessee?
07/18/2016
What rights do Grandparents have in Tennessee?
In most families, grandparents play a significant role in the lives of grandchildren. I have some great memories spending time with my grandparents growing up in Nashville. I was lucky to have both sets of grandparents until I was well into my twenties. In some families, however, grandparents are at odds with the parents and the relationship between the grandparents and the grandchildren is affected. When this happens, the grandparents may be required to resort to the courts in order to spend time with their grandchildren. As a general rule, parents have the right to parent their children as they see fit. This includes the right to decide with whom the children will associate. The right to parent one’s children is founded on the right to privacy contained in the United States Constitution. Before the court can abridge that right, it must be shown that the failure to do so would result in severe emotional harm to the children. In Tennessee, grandparents have a right to visit with their unmarried minor grandchildren, but only if the parents refuse to allow grandparent visitation and that refusal results in severe emotional harm to the children. The laws regarding grandparent visitation are complicated. If you are considering filing a grandparent visitation case, it is imperative to hire an attorney knowledgeable in the area of grandparent visitation rights.
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What is adultery in Tennessee and does it really matter?
07/17/2016
What is adultery in Tennessee and does it really matter?
Adultery is defined as voluntary sexual intercourse between a married person and someone not the spouse of that married person. In Tennessee, adultery can be proven by circumstantial evidence as well as by direct evidence. There are several defenses to adultery. The first is called recrimination and occurs when the spouse alleging adultery has also committed adultery. The second defense is referred to as condonation. The defense of condonation occurs when the innocent spouse, knowing of the adulterous conduct, takes the guilty spouse back and engages in intercourse. The final defense is connivance. This defense is based upon the knowledge and acquiescence by the innocent spouse in the adulterous spouses’ conduct. There are several things to keep in mind when it comes to adultery in divorce. First, the adulterous conduct of a parent cannot form the basis of a denial of parenting time. In other words, unless the conduct directly affects the children, it cannot be used by the court when fashioning a custody arrangement. Second, having sexual intercourse with someone other than your spouse after separation is still adultery. Third, adultery has no bearing on the division of property in a divorce case. Adultery is just one of sixteen grounds for divorce in Tennessee. However, it is the ground that causes the most anger and resentment. From a purely legal standpoint, adultery is no different than any other of the fault based grounds for divorce. Keeping that in mind will hopefully help quail the emotions that seem to run high in cases involving adultery.
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Can I get Alimony in Tennessee?
07/16/2016
Can I get Alimony in Tennessee?
Alimony is available in Tennessee in appropriate divorce and legal separation cases. A number of factors go into determining an award of alimony. The most important factor is the need of the spouse seeking alimony and the ability of the other spouse to pay the alimony. There are four types of alimony in Tennessee. Alimony in futuro, also referred to as periodic alimony Rehabilitative alimony Transitional alimony Alimony in solido, also called lump sum alimony There are a number of factors that go into an alimony decision. When facing a case involving alimony, make sure you seek the advice of an experienced Tennessee family law attorney.
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What happens if the Other Parent is Underemployed?
07/15/2016
What happens if the Other Parent is Underemployed?
In Tennessee, child support is based in part on the relative incomes of the parents. But what happens if one of the parents is not working up to their potential? What if one of the parents quits a lucrative job and takes a lesser paying job, or perhaps just quits working altogether? If this episode, we discuss how a court determines whether a parent is underemployed and what steps the court will take to insure that parent continues to support the child. RESOURCES
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What is a Voluntary Acknowledgment of Paternity?
07/14/2016
What is a Voluntary Acknowledgment of Paternity?
In Tennessee, one out every three children are born to unwed parents. There are several ways to establish paternity of a child. First, the mother and father can both sign a form called a voluntary acknowledgment of paternity. Second, a paternity action can be filed in court. The voluntary acknowledgment of paternity involves no court action and is usually accomplished in the hospital just after the birth of the child. There is no fee for submitting the voluntary acknowledgment of paternity, provided the form is filled out, signed and filed with the proper state agency prior to the child’s first birthday. The form can be submitted after the child’s first birthday through the date the child turns nineteen, but there is a small fee involved. The form requires the acknowledgment of both the mother and the father that the father is the natural father of the child. Certain information such as the social security numbers, ages and addresses of both parents must be provided on the form, and the form must be signed before a notary public. The form allows the child to carry the last name of the father if both parents can agree. Otherwise, the child will carry the last name of the mother. If one or both of the parents are under eighteen years of age, the form must also be signed by the parent or legal guardian of the new parent. If the mother is married to someone else at the time of conception, while she is pregnant, or at the time she gives birth, the form cannot be used and the mother’s husband is presumed to be the father. In that case, the husband will be listed as the father on the child’s birth certificate. RESOURCES
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Does a Child Always Take on the Last Name of the Father?
07/13/2016
Does a Child Always Take on the Last Name of the Father?
Courts will not change a child’s last name unless the change promotes the child’s best interest. When considering the child’s best interest, the following factors must be used by the court: The child's preference The change's potential effect on the child's relationship with each parent The length of time the child has had its present name The degree of community respect associated with the present and proposed name The difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed name Both parents can agree to the change of the child’s last name. In such a case, the name will usually be changed by the court without having to present any evidence. However, where no agreement can be reached, the parent seeking to change the child's last name has the burden of proving that the change will further the child's best interests. Since the birth certificate of a child born to an unmarried mother reflects that the child’s last name is that of the mother, that person is usually the father. The only way to effect a change in the child’s last name from the name as it appears on the birth certificate, is by court order. If you desire to have the name of your child changed to the last name of the father, or if you do not want to have your child’s last name changed, it is important to be prepared to present evidence to the court to support your position.
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What is a Primary Residential Parent?
07/11/2016
What is a Primary Residential Parent?
In Tennessee, the parent with the majority of the parenting time is always designated as the primary residential parent. But what happens when both parents have equal parenting time with the children? Who is the primary residential parent? The parenting plan in Tennessee states that the designation of primary residential parent is SOLELY for purposes of any other applicable state and federal laws. If the parents are listed in Section II of the parenting plan as joint decision-makers, then, for purposes of obtaining health or other insurance, they shall be considered to be joint custodians. THE DESIGNATION DOES NOT AFFECT EITHER PARENT’S RIGHTS OR RESPONSIBILITIES UNDER THIS PARENTING PLAN. Being named the primary residential parent has little or no meaning. The most important factor to keep in mind in all custody cases is the best interest of the children. Keeping that concept front and center in all cases involving children will go a long way to minimize the negative effects of divorce on your children.
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Can I Move Out Of State With My Child?
07/11/2016
Can I Move Out Of State With My Child?
Tennessee relocation statute allows parents, under certain circumstances, to move out of Tennessee with the child—even over the objection of the other parent. The law requires the parent desiring to move outside of Tennessee or more than fifty miles from the other parent, to give notice of that desire. The notice of intent to relocate must contain the following information: Statement of intent to move; Location of proposed new residence; Reasons for proposed relocation; and Statement that the other parent may file a petition in opposition to the move within thirty (30) days of receipt of the notice. The non-relocating parent must file a petition opposing the move or the relocating parent will be allowed to move. In such a situation there must either be an agreement on a new visitation schedule or the court will be forced to decide how best to create a schedule to foster and continue the child's relationship with the other parent. If the parents are spending substantially equal time with the child the court will decide whether or not to allow the move based solely on what would be in the best interest of the child. Where the parents are not spending substantially equal time with the child, the primary residential parent will be allow to move, even over the objection of the other parent, unless the other parent can prove one of the following: The relocation does not have a reasonable purpose; The relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or The parent's motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child. Even if one of these factors exists, the court can still allow the move if the court finds the move would be in the best interest of the minor child.
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What Rights do I have when My Child is with the Other Parent?
07/10/2016
What Rights do I have when My Child is with the Other Parent?
Parenting Plans are required in all divorce and custody cases involving children. Each Parenting Plan contains a set of 9 rights each parent has when the children are in the physical custody of the other parent. These rights are often referred to as the parental bill of rights and are as follows: The right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations. The parent exercising parenting time shall furnish the other parent with a telephone number where the child may be reached at the days and time specified in a parenting plan or other court order or, where days and times are not specified, at reasonable times; The right to send mail to the child which the other parent shall not destroy, deface, open or censor. The parent exercising parenting time shall deliver all letters, packages and other material sent to the child by the other parent as soon as received and shall not interfere with their delivery in any way, unless otherwise provided by law or court order; The right to receive notice and relevant information as soon as practicable but within twenty-four (24) hours of any hospitalization, major illness or injury, or death of the child. The parent exercising parenting time when such event occurs shall notify the other parent of the event and shall provide all relevant healthcare providers with the contact information for the other parent; The right to receive directly from the child's school any educational records customarily made available to parents. Upon request from one parent, the parent enrolling the child in school shall provide to the other parent as soon as available each academic year the name, address, telephone number and other contact information for the school. In the case of children who are being homeschooled, the parent providing the homeschooling shall advise the other parent of this fact along with the contact information of any sponsoring entity or other entity involved in the child's education, including access to any individual student records or grades available online. The school or homeschooling entity shall be responsible, upon request, to provide to each parent records customarily made available to parents. The school may require a written request which includes a current mailing address and may further require payment of the reasonable costs of duplicating such records. These records include copies of the child's report cards, attendance records, names of teachers, class schedules, and standardized test scores; Unless otherwise provided by law, the right to receive copies of the child's medical, health or other treatment records directly from the treating physician or healthcare provider. Upon request from one parent, the parent who has arranged for such treatment or health care shall provide to the other parent the name, address, telephone number and other contact information of the physician or healthcare provider. The keeper of the records may require a written request including a current mailing address and may further require payment of the reasonable costs of duplicating such records. No person who receives the mailing address of a requesting parent as a result of this requirement shall provide such address to the other parent or a third person; The right to be free of unwarranted derogatory remarks made about such parent or such parent's family by the other parent to or in the presence of the child; The right to be given at least forty-eight (48) hours notice, whenever possible, of all extracurricular school, athletic, church activities and other activities as to which parental participation or observation would be appropriate, and the opportunity to participate in or observe them. The parent who has enrolled the child in each such activity shall advise the other parent of the activity and provide contact information for the person responsible for its scheduling so that the other parent may make arrangements to participate or observe whenever possible, unless otherwise provided by law or court order; The right to receive from the other parent, in the event the other parent leaves the state with the minor child or children for more than forty-eight (48) hours, an itinerary which shall include the planned dates of departure and return, the intended destinations and mode of travel and telephone numbers. The parent traveling with the child or children shall provide this information to the other parent so as to give that parent reasonable notice; and The right to access and participation in the child's education on the same bases that are provided to all parents including the right of access to the child during lunch and other school activities; provided, that the participation or access is legal and reasonable; however, access must not interfere with the school's day-to-day operations or with the child's educational schedule. In addition to these 9 rights, parents can agree on other conditions and requirements and put those in the Parenting Plan. If the either parent violates the rights contained in the Parenting Plan Order, they can be held in contempt. Also, a violation of the parental bill of rights can form the basis of a modification of parenting time. If you are subject to a Parenting Plan Order, read and become familiar with the parental bill of rights. Make sure and do your part to comply with the provisions contain in the bill of rights and make sure the other parent complies with the bill of rights as well. Doing so will insure that each parent has the opportunity to play a significant role in the lives of the children.
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Tips for Saving on Legal Fees in Family Law Matters
07/09/2016
Tips for Saving on Legal Fees in Family Law Matters
Divorce can be expensive, both in terms of the emotional costs and the economic costs. Many times legal fees top the list of costs in a divorce case. Nevertheless, there are steps you can take to reduce the legal fees in your divorce. Choose Your Attorney Wisely Limit and Prepare for Phone Calls and Emails Offer to Perform Some of the Work Yourself If Appropriate, Ask for a Flat Fee Arrangement Do Not Rely Upon Your Attorney for Help with Emotional Problems
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What is a Right of First Refusal in a Parenting Plan?
07/08/2016
What is a Right of First Refusal in a Parenting Plan?
In 2011, the Tennessee Legislature passed a law requiring the courts to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the [best interest of the child].” It makes since that if one parent is unable to care for the child during his or her parenting time, the other parent should be given an opportunity to do so before a baby sitter is used. Such an arrangement will “permit both parents to enjoy the maximum participation possible in the life of the child. . . .” This is called a right of first refusal. Care should be used when drafting a right of first refusal. Factors to be considered are things such as a minimum amount of time before the right kicks in, a set period of time for giving notice to the other parent of the option to exercise the right, and a requirement to let the other parent know within a reasonable time whether or not the option will be exercised. The following is an example of an actual right of first refusal in a permanent parenting plan order approved by the court: “If either parent is unable to spend time with the child during that parents parenting time and would otherwise be forced to utilize a third party to stay with the child, the other parent shall have the option to spend that time with the child. The parent who is scheduled to have parenting time shall give the other parent at least four (4) hours’ notice of the inability of that parent to spend time with the child and the other parent shall either accept or reject the opportunity to spent that time with the child at least two (2) hours following the notice.” Rights of first refusal are generally a good idea as long as there are limits in place. It is best to work out a general agreement with the other parent and then have a qualified family law attorney draft the actual agreement. RESOURCES
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Is Having Custody More Expensive than Paying Child Support?
07/07/2016
Is Having Custody More Expensive than Paying Child Support?
Raising kids is expensive and no one enjoys paying child support to the other parent. However, often paying that child support each month is far cheaper than actually having primary custody of the child and having the additional “hidden” costs. If you are considering seeking a change in custody to keep from paying more in child support, you should consider the real costs of raising a child. You might want to heed the advice of the old adage “don’t cut your nose off to spite your face.” In this episode, we discuss the propriety of seeking a change in custody just to keep from having to pay child support. We explore some of the hidden costs involved in raising kids and explain why having primary custody of a child is often far more expensive than paying child support.
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What Effect do Social Security Benefits have on Child Support Calculations?
07/06/2016
What Effect do Social Security Benefits have on Child Support Calculations?
In yesterday’s episode, we discussed several factors that go into determining the amount of child support that will be paid: Relative Income Parenting time Work related child care expenses Health insurance Other children In today's episode, we discuss what happens when one or both parents are receiving Social Security Benefits. There are generally three types of social security benefits that we deal with in child support cases, disability benefits and retirement benefits both of which fall under Title II of the Social Security Act, and Supplemental Security Income benefits received under Title 16 of the Social Security Act. For child support purposes, both disability and retirement under Title II are handled the same. However, Title 16 Supplemental Security Income benefits are handled differently Amounts received by a parent under Title II of the Social Security Act are considered income and can form the basis of a child support award. Supplemental Security Income benefits, however, are not included in income and cannot form the basis of a child support award. If a parent is receiving disability or retirement benefits under Title II of the Social Security Act, then the amount received is included in income to determine the child support obligation. In addition, if the children are receiving money because of a parent’s disability income, that amount is added to the income of that parent. The amounts received by the children are called derivative benefits. Once the children’s derivative benefits are added to the parent’s disability income, the amount of child support is calculated based on the guidelines. If the calculation shows the parent receiving disability income should be paying child support, the amount of the children’s derivative benefits are subtracted from that parent’s child support obligation. If the difference is a positive number, the parent owes the difference. If the difference is negative, child support will be zero and the parent owes nothing. RESOURCES
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Can I Get Interest on Past Due Child Support?
07/04/2016
Can I Get Interest on Past Due Child Support?
In Tennessee, every parent has an obligation to support their children. When parents are unmarried and/or not living together, one parent will usually be required to pay child support to the other parent. But what happens if the parent obligated to pay child support misses one or more payments? In Tennessee, the law imposes twelve percent interest on past due child support payments. Child support is considered late if it is not paid on the day it is due. In addition, the past due child support becomes a judgment against the person who owes the child support. That judgment carries 12% interest and the interest itself becomes child support. Things to keep in mind: Child support is for the benefit of the child – not the parents If you are required to pay child support through the state of Tennessee and instead pay directly to the other parent, you do not get credit for those payments Make sure that any judgment you obtain for child support arrearages includes the interest, if not, you will not be able to claim it latter RESOURCES
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What is mediation and do I have to participate in it?
07/04/2016
What is mediation and do I have to participate in it?
Mediation is a settlement process to help you and your spouse try and resolve the issues involved in your divorce case. The issues mediated can include child custody and parenting time issues if children are involved, alimony and property division, including who will receive what property and who will be responsible for which bills. Mediation is an informal process usually conducted around a conference room table. It is in a casual setting. The mediator is not a judge and does not make a decision or impose his or her will on the parties but attempts to find a solution to the dispute. At the mediation session, each person involved in the dispute presents a summary of his or her point of view. If you have an attorney, he or she will usually go with you to the mediation session. The mediator will usually meet with everyone together at the beginning and then meet individually with each side. This offers participants the opportunity to communicate to the mediator their real interests in the dispute as well as to vent anger or frustrations outside the presence of the opposing side. The mediator will work with each person until an agreement is reached or an impasse occurs. If an agreement is reached, is should be put in writing and signed by the parties. Although anyone with a law license can mediate a case, most mediators go through extensive training and become certified by the Tennessee Supreme Court as Rule 31 Certified Mediators. In addition, Rule 31 Certified Mediators must continue to receive training and education past the date of certification. Not all certified mediators are attorneys. Mediators generally range in price from $40.00 per hour on the low end, all the way up to $400.00 per hour and even more. Usually the cost is split equally between the parties, although in certain cases the court will require the costs be borne by the party with more resources. Not only do the mediators charge for their time, but the attorneys participating in the mediation charge their clients their usual hourly rate. The best way to avoid the expense involved in mediation is to settle all of the issues in your divorce or custody case. This can be done prior to or after filing the case by sitting down with the other party and working out an agreement that works for both of you. Another alternative is to have your attorney schedule a settlement conference with the other attorney. Such a conference can take place in the office of one of the attorneys and is similar to mediation except without the mediator. No matter which option you choose, it is always best to settle your case prior to turning all the decisions over to a judge. RESOURCES
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What Happens to a Child when the Parents Die?
07/03/2016
What Happens to a Child when the Parents Die?
What happens when the parents of a child die? In Tennessee, a guardian will be appointed to stand in place of the parents. The guardian will be responsible for raising the child and managing any assets the child may have. In this episode, we explore the law as it relates to guardianships in situations where both parents are deceased. Resources
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Does Divorce Effect my Credit?
07/02/2016
Does Divorce Effect my Credit?
In this first episode of the Tennessee Family Law Question and Answer podcast, we discuss what effect filing for divorce in Tennessee has on the parties' credit. As a general rule, filing for divorce in Tennessee will have no effect on a person's credit rating. However, not every case will follow the general rule. Occasionally, there will be no clear understanding between a divorcing couple as to who will be responsible for which bills. Often, in that situation, bills will go unpaid and credit will be negatively effected. It is best to have a clear understanding on who is responsible for paying which bills. This is best accomplished by sitting down before the divorce is filed and working on the details. If this is impossible, then have the attorneys discuss an equitable solution. As a last resort, a motion can be filed and a judge. referee or magistrate make the decision.
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