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 asmarital 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 paydirectly 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.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376

The specific reasons that a parent may deny visitation to Grandparents vary from the innocent (too far to travel) to the hostile (revenge for a difficultdivorce). Whatever the reason, it is emotionally charged for Grandparents who have a bond with their grandchildren and want spend time with them. The question is simply, what legal visitation rights do Grandparents have in Tennessee? Grandparents do have visitation rights in Tennesseebut those rights very are limitedand require a complex evaluation of statutory and case law. As this issue continues to evolve, it is wise to consult afamily law attorneywho is experienced incustodyand visitation rights. This article is a general overview to familiarize the reader with the issues involved in Grandparent visitation rights in Tennessee.

First, it must be noted that grandparents haveno rightto request a visitation hearing in Tennessee if, one, the parents are still married to each other or, two, a divorce and then the step-parent legally adopts the child at issue and the parties are married. The Courts have ruled thatfit parents in an intact marriage have the right to privacy in deciding whether or not to allow visitation with a Grandparent.

So, in what circumstances may a Grandparentrequest a Court hearingfor visitation rights? Those circumstances are outlined in Tennessee Code Annotated § 36-6-306 and are summarized here:

1. One parent is deceased.

2. The parents are divorced, separated, or never married.

3. One parent has been missing for at least six (6) months.

4. The child lived with the Grandparent for at least twelve (12) months before being removed by a parent.

5. The child had a “significant existing relationship” with the Grandparent for a year before the parents severed the association; and loss of that relationship is likely to be emotionally harmful for the child.

6. If a court of a different state granted Grandparent visitation to the petitioners, then those Grandparents also have the right to request a visitation hearing in Tennessee court.

Once a hearing is granted, the Court will determine whether, and in what amount, Grandparent visitation is granted pursuant to case law and the following section of the same Code mentioned above:

(b) (1) In considering a petition for grandparent visitation, the court shall first determine the presence of a danger of substantial harm to the child. Such finding of substantial harm may be based upon cessation of the relationship between an unmarried minor child and the child's grandparent if the court determines, upon proper proof, that:

(A) The child had such a significant existing relationship with the grandparent that loss of the relationship is likely to occasion severe emotional harm to the child;

(B) The grandparent functioned as a primary caregiver such that cessation of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or

(C) The child had a significant existing relationship with the grandparent and loss of the relationship presents the danger of other direct and substantial harm to the child.

(b) (2) For purposes of this section, a grandparent shall be deemed to have a significant existing relationship with a grandchild if:

(A) The child resided with the grandparent for at least six (6) consecutive months;

(B) The grandparent was a full-time caretaker of the child for a period of not less than six (6) consecutive months; or

(C) The grandparent had frequent visitation with the child who is the subject of the suit for a period of not less than one (1) year.

If you are seeking Grandparent visitation rights in Montgomery County Tennessee, it is advisable to consult with aknowledgeablefamily law attorney that is familiar with custody and visitation rights and keeps abreast of new developments in case law.McFarland Law Office,located in Clarksville, Montgomery County, would be happy to discuss your particular circumstances, and if appropriate, present the best possible evidence to the Court that you should be granted Grandparent visitation rights. Consultations are always free.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376

Several of the 15 grounds for divorce, enumerated at Tennessee Code Annotated § 36-4- 101,
require allegations that, if proved, could also influence the court’s child custody determination
regarding legal decision-making and parenting time. If the child’s safety and well-being are at
risk because of a parent’s marital misconduct, then evidence of questionable parenting ability
will be examined by the court.

In awarding child custody, the court considers all relevant factors. Many of those statutory
factors in § 36-4- 101 will hinge upon the same evidence used to establish grounds for an at-fault
divorce in Tennessee.

Consider How Children of Divorce Might Be Harmed By The Same Facts & Circumstances Raised In The Following Grounds for Divorce:

Inappropriate Marital Conduct:Causing your spouse such physical or mental pain and anguish as
to render cohabitation unsafe and improper. This ground is also referred to as cruel and inhuman
treatment.

Adultery:For instance, a parent carrying on an extramarital affair in the child’s presence.

Desertion:Willfully deserting your spouse without reasonable cause for one whole year.

Abandonment:Throwing your spouse out of the marital home with no just cause, and refusing to
provide support while having the ability to so provide.

Conviction of an Infamous Crime:For instance, a parent is convicted of incest, rape, or some
other infamous crime as defined by Tennessee statute.

Conviction of a Felony:For example, a parent’s conviction and imprisonment for armed robbery.

Attempt to Kill One’s Spouse: For example, one parent’s attempt to run down the other parent with
a child in the vehicle.

Habitual Drunkenness or Abuse of Narcotics:For instance, the child observes the parent drinking
or using illegal drugs or in an intoxicated state.

Although Alimony & Child Custody May Be Impacted by Evidence of a Spouse’s Marital Fault, It has no Bearing on the Division of Marital Property in Tennessee.
When dividing marital property and debts, the court is tasked with making an equitable distribution of the same between the parties, without regard to marital fault. Of course, once marital fault is established as grounds for divorce, that knowledge is not erased from the Judge’s mind. It might have an undercurrent effect, especially if the particular marital misconduct was egregious or coupled with an attempt to hide assets from division in divorce.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376

A frequent question during adivorceis, “Can I getalimony?” 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.

(12) 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 thatthe 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 trustedfamily law attorneyso that he or she can prepare evidence for each factor that the Court will weigh. Located in Clarksville, Montgomery County, Tennessee,McFarland Law Officewould 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 Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376

WHY IS THIS IMPORTANT?
Adultery is a fault-based ground for seeking a divorce and we discussed the implications of that in the blog“Consequences of an at-fault divorce in Tennessee”. So, whether you need to allege adultery against your spouse or to defend yourself against such an allegation, it is important to be aware of the defenses provided by Tennessee law.

When a spouse files for divorce in Tennessee, the opposing spouse or party is given the opportunity to raise an argument in his or her defense. These are called “affirmative defenses” because they admit that the alleged misconduct occurred. Affirmative defenses provide a valid reason that the spouse committed the misconduct. In other words, an affirmative defense is raised as a justification or excuse for marital wrongdoing. Tennessee law provides three affirmative defenses for adultery.

1. RECRIMINATION
Let’s suppose a husband engages in an extramarital affair. The wife finds out about the affair and files for divorce. The husband should raise an affirmative defense of recrimination, if he can prove that the wife is also guilty of adultery. If recrimination is established, neither the husband nor the wife may use adultery as grounds for divorce. In this situation, one of the parties must find an alternate ground for divorce before the court will grant a divorce in the favor of either party.

2. CONDONATION
As an example, the wife is in an extramarital affair, but the husband is not. The husband finds out about the affair and does not file for divorce. The couple continues to live together as husband and wife and a few years later, the husband files for divorce on the grounds of adultery. In this scenario, the wife should raise the affirmative defense of condonation. This defense is only valid if the husband knew the full extent of the wife's adulterous activities and approved of the activities or forgave the wife. If the wife was conducting extramarital affairs with five other men, but the husband only knew of one, the wife could not use condonation as a defense.

3. CONNIVANCE
In this slightly more scandalous hypothetical, assume the husband engages in numerous extramarital affairs, but the wife is monogamous. The wife files for divorce, alleging adultery. However, the wife neglects to mention in the divorce complaint that she was paid for the husband’s adulterous affairs. In this case, the husband should raise the affirmative defense of connivance, which is a valid defense when the wife plays an active role in or benefits from the husband’s scandalous activities. Connivance is presumed to be an affirmative defense for both men and women.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376

Changing or modifying your parenting plan or otherwise changing custody in Tennessee after a divorce requires asking the court for a modification. In order to qualify for a modification of custody, the parent seeking the change must prove a change of circumstances which materially alters the child’s well-being. This is rarely a simple question of law.

Every situation is unique and requires an action plan which is tailored to your particular goals. Unfortunately, Tennessee law can be vague when it comes to defining what is and is not a change of circumstances.

If a parent wants to modify parenting time (rather than who is designated as primary residential parent), that standard is lower than “materially affecting the child’s well-being” which is required to change primary residential parent. The standard to modify a parenting plan is more practical.

The first question a judge may ask is “what’s different today?” Often that answer relates to a change in a parent’s job or hours worked, children’s schedule, or transportation logistics. Another common circumstance includes situations in which parents are exchanging children differently from that in the existing plan and the parent seeking modification only wants the new parenting plan to reflect the actual schedule.

If you want to make a change in child custody after your divorce is final, you should speak with an attorney to discuss your specific situation.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376

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 Clarksville-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.
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).
   
2. There is a threat ofspecific and serious harm to the childif the move occurs.
   

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.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376