Relocation is a way of life for our military service members. Due to our proximity to Fort Campbell, we often deal with the issue of how a PCS move will affect the child custody arrangements that you have with your ex-spouse. This is addressed in the Tennessee Parental Relocation Act codified in Statute as T.C.A §36-6-108. This article is intended as a brief overview of the law. The law is intricate and it is certainly in your best interest to consult with a family law or custody law attorney that has experience with parental relocation after divorce in Montgomery County.

Within the Statute you will find the specific notification and objection requirements. For our purposes, we will suppose that you have followed the requirements of notification and your ex-spouse has properly objected to your relocation. How will the Court determine whether you may relocate with your child?

There are two different standards that the Court will apply based on whether you and your ex-spouse are spending “substantially equal time” with your child or children. Please note that “substantially equal time” means time actually spent with the child, not simply the days allotted to you on your Parenting Plan. “Substantially equal” is not a defined term but, in my experience, the Courts in Montgomery County dealing with parental relocation generally accept 150 days or more to be “substantially equal time.” For this reason, we at Ryan K. McFarland's office always advise our military clients who are going through a divorce and determination of child custody to accept no less than 150 days of parenting time, if such can be reasonably exercised. Again, these days must actually be exercised.

If the Court finds that the parties do indeed spend “substantially equal time” with the child or children, then the Court will look at all the aspects of the child’s rearing to determine whether relocation would be in the best interest of the child. A few of these factors are:

1. The extent to which parenting time rights have been allowed and exercised;
2. Whether the relocating parent is likely to comply with any new parenting time arrangement once he or she is out of the jurisdiction;
3. The love, affection, and emotional ties existing between parents and child; and
4. The stability of the parents’ family unit.

What if the Court finds that the parties are not spending “substantially equal time” with the child or children? There is a legal presumption favoring the relocation, when the relocating parent spends substantially more parenting time with the child. In this instance, it is presumed that the parent should be allowed to relocate with the child. In that case, the relocation will be allowed unless:

1. There isno reasonable purposefor the move (when looking into the reasonableness of a move it must have a significant purpose and courts will consider both economic and non-economic factors in an intensive examination of the unique factors of each case); or
2. There is a threat ofspecific and serious harm to the childif the move occurs; or

1. The motive for the move isvindictive.

If any of these three grounds are found, then the Court must conduct the best interests analysis described above.

Obviously, protecting the custody of your children during a military relocation is of utmost importance. Because the Court will be conducting a detailed analysis and weighing several factors, it is advisable to speak with a knowledgeable family law attorney. McFarland Law Office, located in Clarksville, Montgomery County, has dealt with many custody issues involving military relocations. We would be happy to ensure that you and your child’s best interests are protected. Consultations are always free and if you are facing custody issues due to military relocation, please give us a call at (931) 919-4376.

​ Although an annulment and a divorce have certain things in common (they bring an end to your relationship, they require a division of property, a parenting plan, child support if applicable) they are two entirely separate concepts. Many people view annulment as simply a faster, easier way to get a divorce. As explained here, that is not the case.

Scenario: A couple finds themselves involved in a whirlwind romance and are convinced they have found their soul mates. After two weeks of dating, they elope to Vegas and get married at a drive thru chapel. They come back home and realize they really don’t like each other that much after all. Can they just get their marriage annulled instead of going through the divorce process? Probably not.

Tennessee allows annulment in very limited circumstances. This speaks to the fundamental difference between a divorce and an annulment. A divorce is the end of a legal marriage. An annulment means that there never really was a marriage at all, and the whole thing is treated as void. In other words, in an annulment there was a substantial defect at the time of the marriage that was so strongly against marriage policy that it rendered the entire marriage void and invalid. A void marriage is no marriage.

The specific grounds for annulment have been developed, for the most part, through case law in the Tennessee courts. They are as follows:

• Incurable impotence that existed at the time of the marriage
• Failure to consummate the marriage
• Incestuous marriage
• Secret pregnancy at time of marriage
• Minor marries without consent from a parent or guardian
• Bigamy
• Mental incapacity or insanity
• Marriage by fraud
• Marriage under duress, force, or threat of physical harm
• Limited purpose marriage

Absent any of the above, divorce is your only recourse. Annulments and divorces are best handled by a skilled family law attorney. Located in Clarksville, Montgomery County, Tennessee, McFarland Law Office would be honored to speak with you regarding the specific circumstances of your relationship and whether an annulment or divorce would suit you. Your consultation is free and we will sit down with you and explain how we can best serve you. If you are in need of a knowledgeable, thorough divorce attorney, give us a call at (931) 919-4376.

A frequent question during a divorce is, “Can I get alimony?” The answer is maybe. Of course, the easiest way is if you and your spouse can agree on the issue. Often, however, that is not the case. When the spouses cannot agree, the Court will determine if alimony is appropriate, and if so, the amount and the duration of time.

In Montgomery County, as throughout Tennessee, the Court will look at the following factors to determine whether to grant alimony, in what amount, and for how long:

(1) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;
(2) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party’s earnings capacity to a reasonable level;
(3) How long the parties were married;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek employment outside the home, because such party will be custodian of a minor child of the marriage;
(7) The separate assets of each party;
(8) How the parties divided their marital property;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

​ The Court will take each of the above factors into consideration. However, the Supreme Court of Tennessee has told us that the two most important factors are the disadvantaged spouse’s need and the obligor spouse’s ability to pay.

Since the Court has wide discretion on whether to award alimony, what amount and for how long, it is advisable to speak with a trusted family law attorney so that he or she can prepare evidence for each factor that the Court will weigh. Located in Clarksville, Montgomery County, Tennessee, McFarland Law Office would be honored to speak with you regarding the specific circumstances of your divorce and the possibility of alimony. Your consultation is free and we will sit down with you and explain how we can best serve you. If you are in need of a knowledgeable, thorough divorce attorney, give us a call at (931) 919-4376.

There are numerous misconceptions about the division of military retirement pay in event of a divorce. For example, many people believe that the couple must have been married for at least ten years with ten years of military service (the “10/10 rule") in order for the non-service member spouse to be entitled to any portion of the military retirement pay. This is not true. This topic is incredibly important since the service member’s retirement is likely to be the largest asset of the marriage. I will explain the general guidelines, but I cannot stress enough that a lawyer with experience in dividing military retirement is a necessity. Specific language and forms are required, and there are certain pitfalls that can make a court’s order of retirement pay to a former spouse unenforceable.

The first point to understand is that there is no Federal law that automatically entitles a former spouse to a portion of a member’s military retired pay. A former spouse must be awarded a portion of a member’s military retired pay in a State court order. The Uniformed Services Former Spouse Protection Act (USFSPA) gave State courts the right to treat military retirement as marital property. Thus, it is subject to division just like any other marital property during a divorce proceeding. The rationale is that the non-service member spouse contributed to the marriage either through his/her own employment or by supporting and maintaining the home and family of the service member during the time of military service.

What is this 10/10 rule that many people believe is the standard for determining whether the non-service member spouse is eligible to receive any portions of military retirement pay? This rule simply states that the parties must have been married for at least ten years, of which at least ten of those years overlapped the service member’s creditable military service, in order for the former spouse to receive his/her portion of the service member’s retired pay directly from Defense Finance Accounting Service (DFAS). If you do not satisfy the 10/10 rule, the military retirement pay may still be divided, but the service member will be responsible for paying the non-service member spouse directly each month, and would be subject to criminal contempt for disobeying a court’s order should he/she decide not to comply with the order.

How is military retirement pay divided and what are some common pitfalls to avoid? If the parties to the divorce cannot come to an agreement, it is left to the discretion of the state court. In Tennessee, courts must make an “equitable division” of marital property, which generally means equal or 50/50, but not always. Generally speaking, based on a 20-year retirement, the former spouse can expect to accrue about two-and-one-half percent (2 %) of disposable retirement pay for each year of marriage that overlaps the service member’s credible military service. Disposable retired pay is a member’s gross retired pay less certain authorized deductions, such as disability pay received through the Veteran’s Administration or amounts deducted from gross pay in order to pay for a Survivor Benefit Plan for the former spouse

The USFSPA mandates that for a retired pay as property award to be enforceable, it must be expressed either as a fixed dollar amount or as a percentage of disposable retired pay. If the retired pay is listed as a fixed dollar amount, the former spouse will not receive the benefit of any of the member’s retired pay cost of living adjustments (COLAs). If the retired pay is listed as a percentage, the former spouse will receive the benefit of any of the member’s retired pay COLAs. If the amount of the former spouse’s award is expressed as a dollar amount or percentage of disposable retired pay less the amount of some other obligation, such as the amount of the Survivor Benefit Plan premium or the former spouse’s child support obligation, then the entire award is unenforceable. There are other pitfalls with language expressing set-offs of certain amounts and involving hypothetical awards (too detailed for this article) that can make an award unenforceable.

This is intended as a brief overview of the main points of dividing military retirement pay in a divorce. The most important theme to take away from this article is that military pay is marital property that must be divided by a court during your divorce proceedings and careful, precise language is required that can best be supplied by a knowledgeable attorney.

By its nature, divorce is a stressful time of change. The process can seem daunting or confusing. Knowing what to expect throughout the process of an uncontested divorce will help alleviate some of the stress. This guide is intended as a general overview of the process of an uncontested divorce in Tennessee.

The first issue to consider is the definition of uncontested divorce. It simply means that you and your spouse are willing and will be able to agree to issues such as division of property and child custody. An uncontested divorce is a “no-fault” divorce filed under the grounds of “irreconcilable differences.” This simply means that no blame is assessed to either party but the parties agree that they no longer wish to be married. An uncontested divorce has many advantages over a contested divorce. It is finalized quickly (60 days after filing if you have no children born of the marriage; 90 days if you do have children born of the marriage), whereas a contested divorce may take up to two years or more. You will not need to appear in court during your uncontested divorce; a contested divorce will end in a trial any may require numerous court appearances before you even get to trial. Obviously, an uncontested divorce will be much less expensive and stressful than a contested divorce.

The process is straightforward, so do you really need a lawyer? The answer is almost always yes. Although there are numerous self-help options and you are by no means required to hire a lawyer for an uncontested divorce, there is no substitute for an attorney who is knowledgeable about the process. This is especially true if you have children together, jointly own a home or vehicles, have retirement accounts, or if one spouse is a military member. It is important to note that one single attorney cannot represent both you and your spouse. Often, one spouse will hire an attorney to create the required paperwork and the other spouse will carefully read all of the agreements and simply sign the required documents.

There are two important documents that are required in your uncontested divorce: the Marital Dissolution Agreement (or “MDA”) and a Parenting Plan if you have children born of the marriage. The MDA will resolve all issues concerning the division of marital property and marital debt. The Parenting Plan will determine who is the primary custodian, the daily and holiday schedule of custody, tax exemptions, who is responsible for important decisions, who will provide insurance and how child support will be paid. Your attorney will calculate child support by using the Tennessee guidelines, which take into account the income of each spouse as well as the percentage of time that each spouse has custody of the child or children.

When your waiting period has expired, your attorney will file a Final Decree of Divorce which will incorporate those documents and file a few other required forms on your behalf. Your case will be set for Final Hearing with the court but you will not need to attend. A few days after your Final Hearing, your attorney will receive copies of the Final Decree of Divorce and provide them to you and your ex-spouse.

A word of caution: do not get remarried for at least thirty days after your divorce becomes final. There is a thirty day appeal period that you need to wait through just to make sure your ex-spouse does not appeal for any reason.
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There is no way to make a divorce completely stress-free, but understanding the general process and consulting with a knowledgeable family law attorney will definitely make a big difference. An uncontested divorce can go very smoothly and quickly. It will require agreements and discussion with your spouse about every topic mentioned above, but once you have come to agreement, your attorney will take care of the required documents and ensure that your divorce covers every necessary aspect and has no delays.