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Grandparents Be Advised (Part II)

2/22/2018

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What You Must Do to Continue Being a Part of Your Grandchildren’s’ Lives, Should the Children’s Parents Become Addicted to Opiates or Any Drug.

When parents become addicted to drugs often the Department of Children’s Services (DCS), files a lawsuit asking the Court to declare a child or children as being dependent and neglected as defined by T.C.A. § 37-1-102(b)(12), and that the child be safety placed appropriately.

As grandparents of a child, without a legal guardianship over the child, you have neither parental rights nor legal custodial rights. Additionally, as non-parties to a juvenile dependency and neglect case, DCS is prohibited from giving you specific information pertaining to the case. Most importantly, should DCS file a subsequent petition to terminate the parent’s rights, you as the children’s grandparents, will be barred from intervening in the action, unless you have already been designated as the legal guardian or custodian of the child. This means that the rights of the grandparents as well as those of the parents will be terminated in the parental termination proceeding. If your grandchildren are the subject of a dependency and neglect action, you must IMMEDIATELY file to become the legal guardian of the child or children concerned. This will allow you to intervene in the action filed by DCS and will prevent DCS from moving for termination in the first place.

In Re: C.H. is a case involving an interlocutory appeal from the Juvenile Court of Jefferson County, which was heard by the Tennessee Court of Appeals at Knoxville, filed January 31, 2017. The Court of Appeals ruled in that case, that the grandparents of the subject child were barred from intervening in a lawsuit to terminate the rights of the child’s parents filed by DCS, because the grandparents were not the legal guardians of the child and that their interests were adequately represented by that of the parents.

The Full Decision is Provided Here

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

2/20/2018

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Introduction
Too often, grandparents become de facto parents to their grandchildren when the biological parents of the children become incapable of responsible parenting due to opioid drug abuse or any drug abuse. This article will be focusing on two points:
(1) Understanding the epidemic that has become opioid addiction and abuse in America, and what signs to look for should you suspect a loved one of such an addiction and
(2) What you will need to do legally as grandparents to protect your rights to continue to have your grandchildren in your lives, should the children’s parents become addicted to opiates or any drug.

Part one of this two-part article will discuss the epidemic of opioid addiction and the signs that may be exhibited by someone who is abusing or addicted. Part two of this essay will discuss what you must do should a parent start abusing or become addicted.

Opiate Addiction In America A Public Health Emergency
It is no secret that opiates have become the drug of choice for a huge segment of the American population, especially among young adults. In December of 2017, the National Center for Health Statistics conducted a study, and concluded that in 2016: opioid overdoses resulted in 42,249 deaths or an average of 116 deaths every day, that 2.1 million people had an opioid use disorder, that 11.5 million people misused opioid prescriptions (this is a conservative number as some sources cite anywhere from 26 million to 36 million believed to be abusing opioids), that 948,000 people used heroin, that 170,000 people used heroin for the first time, and that the cost to tax payers was 504 billion dollars. Sadder than the above statistics are the pharmaceutical companies that manufacture and benefit financially from this epidemic that they knowingly and willfully created.

In the late 1990s, pharmaceutical companies had specific knowledge that the opiates they were manufacturing and selling were highly addictive, however; they reassured the medical community that patients would not become addicted to opioid pain relievers. As a consequence, healthcare providers began to prescribe them at greater rate thereby increasing demand. The increased prescription of such medications led to widespread misuse of both prescription and non-prescription opioids before it become clear that these medications were extremely addictive and unsafe contrary to what pharmaceutical companies had claimed. The high number of deaths, persons addicted, and the cost to the taxpayers finally led the U.S. Department of Health and Human Services in 2017 to declare a public health emergency and announce a 5-point strategy to combat the opioid addiction crisis.

An opiate is a chemical derived for opium. Opium is naturally occurring in the opium poppy plant and is a key ingredient in heroin. “Medicines” such as; codeine, vicodin, oxycodone, hydrocodone, and so on, are “opiate-like” because they mimic the effects of opium but are man-made and commonly referred to as “opioids”. Opioids work by attaching themselves to any of the millions of opiate receptors located in the brain and throughout the body. Opioids signal the brain to produce massive amounts of dopamine. Dopamine is a neurotransmitter present in regions of the brain that regulate movement, emotion, cognition, motivation, and feelings of pleasure. Specifically, opioids act on the limbic system, which controls emotions and is responsible for the release of chemicals such as dopamine which produces feelings of happiness and pleasure. Opioids also act the brainstem controlling things your body does automatically like breathing and coughing, and on the spinal cord which receives messages from the body before sending them to the brain, such as feelings of pain or discomfort. By overstimulating the brain and its associated systems, opioids produce a euphoric high in users.

The signs of opioid abuse and addiction will vary. Immediate signs of use while someone is under the influence can include some of the following exhibited behaviors or symptoms:

(1) Being Noticeably Euphoric or Happy
(2) Being Overly Energetic, Such That, the Person Cannot Sit Still
(3) Pupils That Are Constricted
(4) Drastic Mood Swings, Sometimes Described As “High-Highs” & “Low-Lows”
(5) Users May Become Itchy
(6) Once the Sense of Euphoria Subsides the Person May Seem Sedated or Very Tired
(7) Confusion
(8) Forgetfulness
(9) Nodding Off at Random Times or Loss of Consciousness
(10) A Slower Breathing Rate

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376
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Requirements to Adopt from Foster Care in Tennessee

2/16/2018

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If you are thinking of adding to your family through adoption of a child in the care of Tennessee Child Services, it is important to note that around 80 percent of children adopted from foster care are adopted by their current foster parents. In fact, the Department of Children’s Services gives adoption preference to families who are already caring for a child who becomes eligible for adoption and can be released from DCS custody.

Since these children may be vulnerable and definitely need a loving, stable environment, DCS imposes some preliminary requirements. Foster parents in Tennessee are automatically approved to adopt children, as the requirements for the fostering and adopting are the same. This makes it easier for foster parents to adopt the children they are caring for in a seamless transition.

The Requirements for Foster-Adoptive Parents in Tennessee Are:
  • Can Own or Rent a Home
  • Can Work Full Time
  • At Least 21 Years Old
  • Valid Tennessee Resident
  • Capable of Meeting Family’s Financial & Emotional Needs

Foster-adoptive parents can be married, single, or divorced, and there are no requirements or restrictions based on whether they already have children.

After verifying that you meet these requirements, you can move toward adopting a child who is in the custody or guardianship of DCS by completing a formal home study conducted by DCS.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376
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Who May Not Adopt in Tennessee?

2/15/2018

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Along with the requirements for adoptions found here (insert link), there are a few categories of people who are not allowed to adopt in Tennessee. This is designed with the best interest of the child in mind.

Who May Not Adopt?
  • One person of a married couple can not adopt without the other spouse adopting as well.
  • Two unmarried people can not adopt the same child. (Example: Adult raised by foster mother would like for the foster mother and a biological uncle to be her legal parents. Unless the foster mother and uncle are married to one another, this is not possible.
  • Sometimes a single parent, usually a mother, will want one of her relatives to adopt the child, terminating the birth father’s rights, but without terminating her own rights. While this may sometimes be in the best interest of the child, the requirement that both parents’ rights be terminated before adoption only excepts step parent adoptions, and therefore the desired adoption is not allowed.
  • A non-related person without a home study.
  • Dead people (Sometimes a grandmother, for example, will adopt and want her deceased husband included in the action. This is not allowed.)

Who Is A “Relative?”
Some of these limitations bring us to the question of who is a “relative?” Tennessee law tells us that “related” means grandparents or any degree of great-grandparents, aunts or uncles, or any degree of great-aunts or great-uncles, or stepparent, or cousins of the first degree or any siblings of the whole or half-degree or any spouse of the above listed relatives. If you are unsure whether you fall into this category, our office is happy to look at your family tree and let you know (it can get confusing)!


If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376
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The Importance of Education in Child Custody Cases

2/14/2018

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A case fromHamilton Countyreminds us thatTennessee Courtsput a high emphasis on your commitment to your child’s education. In this instance, a mother lost parenting time to the father because she emphasized a sport over the education of her children.

The parents were divorced in 2012. They were both named co-primary residential parents of their children, who were 11 and 7 years old at the time of trial. Each parent received equal visitation time. The parenting arrangements proved contentious, and the mother went back tocourtasking to be named the exclusive primary residential parent. The father made the same request, and the matter was set for acourthearing. After hearing, the trial court granted the father’s request.

At the time of the original divorce, both parents lived in North Chattanooga. The father remarried, had another daughter, and moved to Signal Mountain. The mother was living with a close friend, who was also the children’s pediatrician.

The mother was an avid rock climber who also coached rock climbing. The main issue at trial was whether the mother had neglected the children’s educational needs in favor of rock climbing.

The mother testified that rock climbing was a key part of the children’s lives. The father, on the other hand, believed that the rock climbing was being done to the exclusion of all other activities.

The trialcourtfound that the mother “seems obsessed with rock climbing,” and noted that the children normally participated in rock climbing before beginning their homework, which sometimes was not completed. It noted that the mother did not seem overly concerned with the children’s education.

After the father was named primary residential parent, the mother appealed to theTennessee Courtof Appeals, which first agreed that there had been a material change of circumstances. It then turned to the issue of whether the trialcourthad acted in the best interests of the children. It found that the most relevant factor in this case was the disposition of each parent to provide the child with food, clothing, medical care, education, and other necessary care.
The appealscourtthen reviewed the evidence and concluded that the evidence did not preponderate against the trialcourt’sfindings. The lowercourthad credited the father’s testimony that the mother had an excessive interest on rock climbing at the expense of other activities, including education.

This certainly does not mean that your children shouldn’t participate in sports. Rather, it reminds us that the courts expect a healthy balance between education and extracurricular activities. As in this case, if education is neglected you may be in danger of losing parenting time.

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

2/13/2018

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Religious dispute cases are few and far between.Courtsare understandably reluctant to delve into matters of religion. After all, the First Amendment generally gives parents the freedom to expose their children to whatever religious beliefs they choose. It also prohibits the government from favoring one religion over another. Nonetheless,courtshave an obligation to act when children are being harmed by parental conflict.

Consider the case of Lewis v. Parmerter in Sparta, Tennessee. When the parentsdivorced, the agreed parenting plan designated Mother as the primary residential parent and gave both parents joint decision-making authority regarding the children’s religious upbringing. Since thedivorce, the parties have filed numerous petitions for contempt, orders of protection, and motions to modify the parenting plan arising out of, among other disagreements, the control of their children and their religious beliefs. Much of this conflict centers around Father’s refusal or interference with his children participating in extracurricular activities, such as Scouts, football, and other sports which he claims violates his religious beliefs.

Tennessee lawprovides that where parents are unable to agree on matters of great importance regarding the welfare of the children, primary decision-making authority should be placed in one parent or the other. In the original parenting plan, the parties had joint decision-making authority. After reviewing the record, theappeals courtnoted the extent of disagreement between the parties concerning the spiritual upbringing of the children, the effect of the parties’ conflict on the emotional health of the kids, and the anxiety the children experienced when they were required to attend the father’s church. Thecourtconcluded that these observations and recommendations from the children’s therapist provided a sufficient evidentiary basis to grant to the mother sole decision-making authority with respect to the children’s religious upbringing.

The children’s therapist stated that one child “has become paranoid that ‘Jehovah’ is watching everything that he does and that he will be punished when his father takes him back to ‘Jehovah’s House.'” The children complained to the therapist about all the time they spent at Father’s church. The therapist said the children have increased anxiety, a distrust of Father, the feeling they are being forced to believe something they do not, and that he is not considerate of their own thoughts and beliefs.

Thecourtgranted Mother soledecision-making authority regarding the children’s religious upbringing. If you are concerned about a parenting decision that has affected the well-being of your child,our officecan advise you of your options.

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

2/9/2018

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InTennesseedivorceproperty division is accomplished through theCourtmaking an “Equitable Distribution” of the married couples’ property, however, theCourtmust first identify, categorize, and value it, before it can be divided.Tennessee lawtherefore mandates full and fair disclosure of all marital property in adivorce. Should one spouse not make the appropriate disclosures, they can be brought back intoCourtto face allegations of perjury and contempt ofcourt.

▪ Marital Property
TheCourtwill categorize property as either separate or marital, and value that asset if marital in nature. Marital property includes all real and personal property, both tangible and intangible acquired by either spouse during the marriage up to the date ofdivorce. TheCourtis able to divide marital property, but lacks the ability to divide separate property.

▪ Separate Property
Separate property is owned by one spouse prior to the marriage. Although some items of property can be acquired during the marriage and still be one spouse’s separate property. These include: inheritance; gifts; pain and suffering awards; awards for future medical expenses and future lost wages; victim of crime compensation awards; disability insurance payments that replace future lost wages; social security benefits; and income from and appreciation in the value of separate property that accrues during the marriage.

▪ Doctrine of Transmutation
Under the doctrine of transmutation, separate property can become marital property subject to division, where each spouse made a substantial contribution to the “preservation and appreciation” of one spouse’s separate property, then the resulting income and/or increased value is marital property and subject to division.

▪ Commingling
When property becomes commingled, separate property can become marital property if it becomes so intertwined that it is impossible to separate. If the separate portion cannot be traced then the entire asset is presumed to be marital property For example, money from a marital account is occasionally used in one spouse’s separate investment account without a record of the transactions. If the funds become so commingled that they are impossible to separate, the entire account will become marital property

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376
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Bad Behavior Toward Ex Can Result in Child Custody Change

2/8/2018

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TheTennessee Court of Appealsrecently reminded us of the importance of encouraging a good relationship between your children and their other parent. In this case, Father lived in Tennessee with the children and was the primary residential parent. Mother lived in Texas. She received 85 days of parenting time.

In 2015, Mother filed an emergency motion to modify the parenting plan to obtain primary custody. Mother attached copies of text messages sent between Father and the oldest child during Mother’s parenting time. Among other things, Father told the children Mother “Doesn’t mind to cause pain for others”, is “Mentally ill”, “Nobody likes her” and that the children “Have a right to be ugly to her".

Thetrial courtappointed a forensic psychologist to examine the parties and the children. The psychologist ultimately concluded that the children werealienatedfrom Mother, and that thealienationwas supported by the actions and statements of Father. The psychologist explained:“The parent who is supporting thealienation, whether this is their intent or not, is effectively supporting the child in cruel, unempathetic behavior towards another human being; they are supporting the child in attitudes and behaviors towards interpersonal conflict that emphasize rejection, separation, and polarization, rather than resolution.”

• Thetrial courtfound this to be a “Case Of Severe Parental Alienation” in which Father had actively supported the children’s alienation from Mother without reasonable cause.

• Thetrial courtruled it was in the children’s best interest that custody be changed, and thetrial courtdesignated Mother as the primary residential parent with sole decision-making authority.

• Thetrial courtalso ordered Father to pay for Mother and children to attend a program designed to provide a therapeutic remedy for parental alienation.

• Father was also prohibited from having any contact with the children for at least 90 days so they could complete the therapeutic program.

The Father appealed and theTennessee Court of Appealsagreed with the original judgment.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376
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Can a Messy Home Affect Child Custody?

2/7/2018

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No one expects any parent to have a spotless home. However, a court in Davidson County modified child custody to make the father the new primary residential parent and to put restrictions on the mother’s visitation partly because of the condition of her home. The court ruled that it was an unfit environment to raise a child.

As with all child custody modification cases, the details are important. In this instance, the mother produced several witnesses who admitted that the home was messy, but that it did not interfere with the well being of the child. The court was inclined to agree with the Court Appointed Special Advocate (CASA) volunteer who visited the home and reported she did not believe that mother's house was an appropriate environment to raise a child. She explained that the home had three bedrooms but only the living room was actually used. The other rooms were "stuffed" with mother's belongings, and trash was scattered throughout the home. Additionally, at least one bedroom and the basement were completely inaccessible. According to the CASA volunteer, the living room contained one bed in which both mother and the child slept, and occasionally did school work. She testified that she recommended homemaker services to mother and offered to help mother get her home in order, but mother refused assistance. These problems were made worse by the fact that the mother home-schooled the child, and thus the majority of their time was spent in the living room of the home which contained one bed for shared use.

The court ruled that the mother would not have overnight visitation until the home was made fit for the child.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com•1 (931) 919-4376
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Division of Military Retirement Pay in a Divorce

1/30/2018

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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 (2½%) 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
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Grandparent Visitation Rights in Tennessee

1/25/2018

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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
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Consequences of an At-Fault Divorce in Tennessee

1/24/2018

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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
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Awarding Alimony in Tennessee

1/23/2018

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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
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Defenses to Adultery in Tennessee

1/18/2018

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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
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Changing Custody After Your Divorce

1/15/2018

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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

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Military PCS & Child Custody:  Tennessee’s Parental Relocation Act & Protecting Your Rights

1/11/2018

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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 is no reasonable purpose for 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 of specific and serious harm to the child if the move occurs.
  1. The motive for the move is vindictive .

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
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Domestic Disturbance or Domestic Assault?

12/14/2017

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Consider this common scenario: you and your spouse or family member or significant other are involved in a heated argument. You are both very angry and you can see no end in sight. Perhaps your children are scared because you are both yelling. Your spouse or family member picks up a book and throws it across the room out of anger. You just want the argument to stop. You know that police respond to domestic issues daily and you consider calling for an officer to come act as a mediator and help you resolve the dispute peacefully. What do you do?

In this time of distress, many people will instinctively call the police simply for help in settling the argument. However, this can have unintended, drastic consequences. Suddenly, a heated argument and request for police assistance in solving a dispute can quickly turn into an arrest for domestic assault even if no physical contact ever occurred. How can this happen?

The Answer Lies in the Definition of “Assault” in the Tennessee Code Section 39-13-101, Which States:

(a)A Person Commits Assault Who:
(1)Intentionally, knowingly or recklessly causes bodily injury to another;
 (2)Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or
 (3)Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

If you look closely at the second definition above, you will notice that no physical contact is necessary to charge someone with domestic assault. Depending on the circumstances, shouting, using harsh language, or slamming doors could reasonably cause a person to fear imminent bodily injury. Thus, once the police arrive on the scene, it becomes a judgment call for the officer. The police more than likely will not sit you both down, discuss the issue and help you to resolve the problem. The most likely scenario is that the officer will arrest the person who seems to be the most aggressive and charge him or her with domestic assault, even though there was no physical contact and even though you had no intention of having your spouse or family member arrested. The police will not mediate your disagreement. They will more often than not make an arrest to prevent further escalation and under the Tennessee Code definition of “assault” above, charge one of the parties with domestic assault.

Many people are simply unaware that a domestic assault in Tennessee does not require physical contact. Similarly, many people are unaware that requesting police assistance in resolving a dispute may have such unintended consequences. To read more about the severe consequences of a domestic assault charge, please read our domestic assault information page.

What do you think? Were you surprised by this information? Do you think that police officers should act more as a mediator, or do you think that an arrest and charge of domestic assault is more appropriate? Let us know in the comments below.

(Important note: this post is not intended to discourage you from calling for police assistance when you feel that you or your children are in danger. In that situation, do not hesitate to dial 911. This is merely intended to inform you that asking a police officer to merely solve a dispute may likely have unintended consequences.)

I have represented numerous clients in the Montgomery County area who have been charged with domestic assault without ever making physical contact with the alleged victim. Please see my case resultsfor examples of outcomes.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com •1 (931) 919-4376
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What is mediation, and will my spouse and I have to go through mediation prior to getting divorced?

11/30/2017

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Mediation is a process in which both parties meet, ordinarily at the mediator’s office, and a mediator goes back and forth between the parties in an attempt to resolve any disputed issues involved in the divorce. The process may or may not involve attorneys. You may be in the same room with your spouse, or you may be kept in separate rooms. Ordinarily you will be in a separate room from your spouse with your attorney. Although mediation is required in all divorce cases involving child custody, it can also be a voluntary process. In all cases where mediation is used, the parties retain all decision-making authority. The mediator is not a judge, and he or she cannot and will not make a decision for you; they are simply a neutral party trying to facilitate settlement between you and your spouse. It is a very useful tool to help your divorce conclude in a timely, agreeable manner.

Mediation is ordinarily not involved in uncontested or no-fault divorce cases, because the parties have agreed, or intend to agree, on all issues of division of marital property and debt, child custody, and alimony. Under certain circumstances, mediation may be utilized before divorce or child custody papers are filed with the court to attempt to make a potentially contested divorce uncontested.

If your divorce is contested, you will almost certainly be required to attend mediation prior to a final hearing or trial of your case. In that case, your attorney will help you to prepare for mediation and should either attend with you or be available by phone in case you have any questions during the mediation.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com •1 (931) 919-4376
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Can You Require Your Ex to Change Her Last Name?

11/17/2017

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There are a number of reasons your ex might want to keep your last name, most of which are actually rational. It might be difficult to see it after a contentious divorce, but the reason most ex-wives keep their ex-husband’s last name isn’t to try to aggravate him.

THE KIDS –Perhaps the most common reason an ex might avoid changing back to her maiden name after divorce is simply to keep her name consistent with the children. It’s reasonable for your ex to want to have the same last name as her kids as you probably feel the same way. Would you agree to let her change her name so long as she can change your kids’ last name? If you’re unwilling to have a different last name than the children then it’s unreasonable to expect your ex to be fine with only changing hers.

HER CAREER –Another reason many women consider when they’re thinking about keeping their married name after divorce is their career. It’s not fair to expect your ex, who might have spent years building her reputation and professional contacts under her married name, to all of a sudden switch her last name. You might be getting a divorce, but your wife has probably spent years building her personal brand around that name. As the number of women in the workplace rises, this will likely become an increasingly common reason for women to keep their ex-husband’s last name.

MARRIAGE LENGTH –The length of the marriage could also affect a woman’s thought process when she’s considering reasons to change her name after divorce. It’s possible she’ll have held that name longer than their maiden name. It makes sense she might feel more comfortable with her married name than the one she hasn’t officially held for who knows how many years. She’s lived the better part of her life under your last name and more than likely identifies more strongly with it.

So, can you make your ex-wife change her name back after divorce? No, not really.

Since there is no real legal action you can take to force your ex to change her name, you’re left with minimal options. You may just have to accept her decision to keep it, even if it drives you crazy.

NEGOTIATE –Your best bet might be to negotiate for her to include changing back to her maiden name in the divorce decree. If it’s very important issue for you, you might be able to give some leeway in an area she feels passionately about. In a contentious divorce, this might not be possible.

CUT A DEAL –Many women are hyphenating their last name after divorce. Your last name will still be part of her name, but there’s really nothing you can do about it. It’s really not worth harboring bitter feelings over.

MOVE ON –If all else fails, you’re just going to have to figure out how to move on with your life. This is admittedly difficult to do if you are fundamentally opposed to your ex keeping your last name, but there just isn’t much you can do. Are you really going to harbor resentment the rest of your life, or are you going to work to find a way to let go? With everything else you’ve gone through in your divorce, this really isn’t something you should get too hung up on.


If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com •1 (931) 919-4376
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Travel Expenses for Visitation:  Who Pays?

11/15/2017

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Negotiating travel expenses (costs of transporting the children for visitation) seems to be one of those items parents wait until the last minute to think about. But it can be very important and can be a large percentage ofyour monthly child support obligation.The court has wide discretion in this issue and it is usually in your best interest if you can come to an independent agreement with your ex.

Judges will consider which parent moved and why. The parent who moved may be asked to pay more of the visitation transportation costs than the other parent. Then judges consider cost. Is the high cost of travel for visitation going to prevent the traveling parent from seeing the child as often? If so, thenwhat again was the reason for the move? Finally, most judges want to know the relativeabilityof the parties to pay.After having all of the facts, judges will usually rule in a way that makes practical sense because the Guidelines provide little limitation on judicial discretion.


Tennessee Child Support Guidelines state, “If parenting time-related travel expenses are substantial due to the distance between the parents, the tribunal may order the allocation of such costs by deviation from the presumptive child support obligation, taking into consideration the circumstances of the respective parents as well as which parent moved and the reason that the move was made.”

These provisions merely require the judge to “consider” whether a reduction in child support should occur as a result of visitation transportation costs. There is no mandatory reduction in child support for travel related to visitation. There is also no formula to tell a judge how to calculate an adjustment to a parent’s child support obligation from among choices of methodology, such as allocating costs between the parents or cost-offset ratio against a strict computation of the child support obligation.

Because the travel expenses reduction is fraught with judicial discretion, the long-distance parent should be ready to argue for a specific, quantified reduction in child support, and to demonstrate the reduction relative to the actual costs of engaging in long-distance visitation. The relocating parent might also want to demonstrate a solid history of taking part in all local visitation opportunities to help bolster the claim that visitation, even if expensive, will regularly continue into the future.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com • 1 (931) 919-4376
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Religious Dispute In Child Custody:  New Case Study

11/14/2017

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Tennessee courts have consistently held that parents have a fundamental right to practice their religion, and an important interest in their child’s religious upbringing. Out of respect for these interests, courts strive to maintain strict neutrality in cases involving religious disputes between divorced parents.

However, the welfare and best interest of the child are always the court’s paramount concerns, and a court may interfere when there is aclear and affirmativeshowing that one parent’s religious beliefs and practices threaten the health and well-being of the child.

In Ashland City, Mother and Father are the divorced parents of Child. In theirdivorce, they received equal parenting time with joint decision-making authority. Mother was designated the primary residential parent.

Mother is a Christian. After the parties’ separation, Father converted to Messianic Judaism, a religion that blends elements of Christianity with elements of Judaism.

Mother petitioned tomodify the parenting plan to give her sole decision-making authority and additional parenting time on holidays. She alleged that Father was alienating her from Child by making disparaging remarks about her and her religion.

The proof showed their religious disputes were hindering the decision-making process. For example, they have opposing views regarding Child’s healthcare. Mother is a registered nurse. Father does not believe in man-made pharmaceuticals and testified that he is against vaccinating Child. Mother, however, vaccinated Child because she believes vaccinations are important to Child’s overall health, and Child’s school requires that Child receive vaccinations. Father testified that he has told Child that vaccinations are “not good” for her and that they “make her stupid.” Child’s medical records indicate that “patient states in her own words that dad tells her vaccines make [her] sick and make me not smart.” Mother testified she does not want Child to fear medical treatment.

For one more example, Father believes Christian and secular holidays are sinful “stumbling blocks,” while Mother celebrates both. Specifically, Father testified that he believes participating in Halloween, Christmas, Easter, birthdays, Mother’s Day, Father’s Day, and Thanksgiving is sinful. He testified that he prays over Child when she returns from participating in activities he views as stumbling blocks. Mother expressed concern that Father’s behavior is leading Child to believe that participating in Mother’s religious and secular holidays is sinful.

Mother claimed this causes Child to experience distress, confusion, and anxiety.

The trial court found there was a material change based on the increased conflict between the parties since their divorce. Mother was awarded sole decision-making authority over educational and non-emergency healthcare decisions and additional parenting time on holidays.

Father Appealed But the Court of Appeals Agreed with the Decision of the Trial Court.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com • 1 (931) 919-4376
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The Basics Of Dividing 401K Plans & Pension Plans   (QDRO)

11/9/2017

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Division of a 401K plan and many pension plans require a Qualified Domestic Relations Order (QDRO).

If your divorce settlement agreement states that you will divide a pension and/or 401K plan, a court must order a Qualified Domestic Relations Order, commonly abbreviated as QDRO. (Note: A QDRO is not necessary to divide an IRA or a SEP. Also, military pensions, federal, state, county and city retirement plans have their own rules regarding division during divorce.) A QDRO will instruct the plan administrator on how to pay the non-employee spouse’s share of the plan benefits. A QDRO allows the funds in a retirement account to be separated and withdrawn without penalty and deposited into the non-employee spouse’s retirement account (typically an IRA).

Many people often make the mistake of assuming that their divorce settlement agreement will fully protect their rights to their portion of a spouse’s retirement account. This is usually not the case, and that’s why it’s critically important to use a properly prepared QDRO.

The QDRO should be completed and presented to the pension plan well before your divorce is finalized. Waiting to complete the QDRO until after the divorce is finalized is recipe for disaster. Consider this common example:

Let’s imagine a scenario in which the divorce has been finalized, and the QDRO requires the pension plan to pay an immediate lump sum amount to the non-employee spouse. And let’s further imagine that the non-employee spouse was relying on that lump sum payment to pay legal fees and other immediate expenses.

The reality is that many pension plans will not pay a lump sum amount and will only pay the non-employee spouse on a monthly basis for life starting at around retirement age, which could be many years in the future. Under these circumstances, the QDRO requesting the immediate lump sum payment would be rejected by the pension plan. If that’s the case, the spouse who was counting on receiving immediate cash to pay their legal fees and other bills is in for a major disappointment. Since the divorce has already been finalized, the non-employee spouse cannot go back to the court and request some other property (cash, stocks, etc.) that would have an equivalent value to that anticipated lump sum payment. The non-employee spouse is now out of luck and may have to wait decades to start collecting their share of the monthly pension payments.

On the other hand, if the QDRO was completed and presented to the pension plan well before the divorce was finalized, the non-employee spouse could have negotiated a different settlement with more cash, for example, once they found out that an immediate lump sum payment from the pension would not be possible.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com • 1 (931) 919-4376
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“Special Expenses” as Add-Ons to Child Support

11/7/2017

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There's a mistaken belief among a lot of newly divorced parents that child support is only supposed to cover the basics that a child needs -- which means those parents could be in for a seriously unpleasant surprise when their ex-spouse asks the court to order a temporary increase in support to pay for summer camp (or something similar) this year.

They may be even more unpleasantly surprised when the judge grants the order.

However, if the court determines that you can afford the increase, and the extracurricular activity that your ex-spouse wants your child to have is something that the court thinks is justified, that's exactly what's likely to happen. For example, if your child travels playing a competitive sport like baseball, softball, or soccer, there is a chance to include the costs, fees, uniforms, gear, gas, and seemingly endless hotel rooms as special expenses.

UnderTennessee’s child support guidelines, the court may order a deviation from the standard support order so that the child can receive certain extraordinary or special expenses:

• Special Education, Including Room and Board, Tuition and Other Fees
• Summer Camp
• Music or Art Lessons
• Band Camp
• Athletic Camps

In determining whether or not the deviation from the normal child support payment is warranted, the expense has to exceed 7% of the basic child support order. The court also looks to see if the activity or educational opportunity would have been appropriate to the child's lifestyle if the parents were still together.

If you truly can't afford the expense, the court won't deprive you of the money you need to cover your rent, utilities and other living costs -- but it may not leave you with much left over. For that reason alone, it might be worthwhile trying to work with your ex-spouse on an amount you can contribute more easily, without getting the court involved.

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

11/6/2017

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The obligation to pay child support continues until a child reaches age 18 or the class of which the child is a member when the child attains eighteen (18) years of age graduates, whichever occurs second. The only exceptions are:

1. Emancipation by a court order.

2. If parental rights are terminated by an action of the State of Tennessee.

3. There is an adoption, usually by a step-parent.

Emancipation is the relinquishment of parental authority over the childand the termination of the parent’s legal duty to support the child. Essentially, an emancipation means that a minor is given the rights of an 18-year-old adult by a Tennessee Chancery Court and will be recognized as an adult for all legal purposes. These rights include entering into contractual agreements, seeking employment, and filing civil suits against others.

Emancipation can be sought by the parents, a legal guardian, or the minor himself or herself. Emancipation is granted by the chancery court, which has the power to remove the disabilities of minority. A Tennessee Chancellor has discretion to grant the minor seeking emancipation full rights of majority or limited rights for a narrow, specified purpose.

There is no set age limit for emancipation. The question of whether a minor is mature enough to be emancipated from parental control is a question left up to the courts. Emancipation is fact-dependent. However, emancipation may be inferred from the fact that the child is earning his own way and spending his own money as he pleases. Whether a minor has been emancipated is usually a question that depends upon each unique situation.

Child support is not owed to an emancipated child because emancipation relinquishes the parent’s legal duty to support the child. A parent may have a duty to continue paying child support if the child has turned 18, but is still finishing high school. In such a case, the parent’s support obligation continues until the 18-year-old child either graduates high school or the class of which the child is a member graduates, whichever occurs first.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com • 1 (931) 919-4376
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Bad Behavior Toward Ex Can Result in Child Custody Change

10/31/2017

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The Tennessee Court of Appeals recently reminded us of the importance of encouraging a good relationship between your children and their other parent. In this case, Father lived in Tennessee with the children and was the primary residential parent. Mother lived in Texas. She received 85 days of parenting time.

In 2015, Mother filed an emergency motion to modify the parenting plan to obtain primary custody. Mother attached copies of text messages sent between Father and the oldest child during Mother’s parenting time. Among other things, Father told the children Mother “Doesn’t mind to cause pain for others”, is “Mentally ill”, “Nobody likes her” and that the children “Have a right to be ugly to her".

The trial court appointed a forensic psychologist to examine the parties and the children. The psychologist ultimately concluded that the children were alienated from Mother, and that the alienation was supported by the actions and statements of Father. The psychologist explained: “The parent who is supporting the alienation, whether this is their intent or not, is effectively supporting the child in cruel, unempathetic behavior towards another human being; they are supporting the child in attitudes and behaviors towards interpersonal conflict that emphasize rejection, separation, and polarization, rather than resolution.”

• The trial court found this to be a “Case Of Severe Parental Alienation” in which Father had actively supported the children’s alienation from Mother without reasonable cause.

• The trial court ruled it was in the children’s best interest that custody be changed, and the trial court designated Mother as the primary residential parent with sole decision-making authority.

• The trial court also ordered Father to pay for Mother and children to attend a program designed to provide a therapeutic remedy for parental alienation.

• Father was also prohibited from having any contact with the children for at least 90 days so they could complete the therapeutic program.

The Father appealed and the Tennessee Court of Appeals agreed with the original judgment.

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

10/30/2017

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In some instances during your family law case in Montgomery County, Tennessee, you may have to attend a deposition. A deposition is a formal proceeding, transcribed by a court reporter. It usually takes place in a lawyer’s office. It is the process by which you give testimony under oath. Your lawyer should be present with you, and your spouse’s lawyer should be present with him or her. The spouses and any witnesses who are testifying can be asked questions by all lawyers present about any fact or issue that is legally relevant to the case.

• It is very important that you make a good impression as a witness in a deposition because HOW you tell your story may be more important than what you say. Your goal is to convince your spouse’s lawyer that you will be a sympathetic, likable and credible witness in court. You may get a much better settlement offer if your spouse’s lawyer believes you will make a good impression at trial.

• It is crucial to be prepared for a deposition. One of the goals of deposition preparation is to make sure you and your lawyer are not surprised by any questions asked. Carefully review all Complaints, Answers, correspondence, Orders, Interrogatories, Requests for Production of Documents, Requests for Admissions and expert witness statements with your attorney. Pay particular attention to all documents personally signed under oath by you or your spouse.

• Always answer all questions truthfully. Every word you say during a deposition may be used against you at trial. You may feel that your story is difficult, embarrassing or humiliating, but you must always tell the truth under oath. If the judge thinks you are lying or hiding information, you will likely lose your case and damage your reputation. Lying is never acceptable in the eyes of the court. If you realize you made a mistake or one of your answers is inaccurate, correct your answer immediately.

• Never volunteer information you have not been asked. — even if you think it will help your case. Resist the temptation to educate your spouse and his/her lawyer about how strong you think your case is. Do not be tempted to educate your spouse’s lawyer about what you think they should know. Instead, make the lawyer ask for the information he or she wants. Listen carefully to each question, and do not try to answer until you fully understand the question. Think about the question before you begin to answer. Feel free to ask the attorney to repeat the question. If you do not understand what is being asked, say so. Never just blurt out an answer.

• Answer the exact question asked, keep your answers short and to the point. Never guess. Never speculate. Guessing is rarely accurate or truthful and can make you look deceptive. It is fine to say you do not know the answer to a question if that is the truth.

• If you have finished your answer, resist the temptation to continue talking if your spouse’s lawyer remains silent. Simply remain silent yourself. Do not get distracted by trying to figure out why your spouse’s lawyer asked a specific question or what the next question will be.

• Do not let your spouse’s lawyer anger you. Do not argue with your spouse’s attorney. Your lawyer will protect you from improper questioning. The opposing attorney may be fishing to see what sort of questions cause you to lash out in anger in order to use that information against you to manipulate your behavior in court.

• Never say anything or do anything during the deposition that would embarrass you if the judge read your testimony in court. Be on your best behavior. Do not answer in a sarcastic or derogatory manner. Never be rude or arrogant, curse or use inappropriate language, or yell or scream. Should you begin to lose control of your emotions, tell your lawyer you need to take a break. Angry and volatile witnesses make mistakes. A written transcript will be prepared of your deposition testimony. Always keep in mind how your deposition testimony will sound to the lawyers and the judge.

If you would like further information on preparing for a deposition our office is here to help.


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

10/27/2017

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In every divorce, Tennessee’s Automatic Mandatory Injunction serves to prohibit bad behavior by both parties. Even if a copy of the “Automatic Injunction” is not attached to the complaint, it is smart to consider that it is in effect. The mandatory injunction statute provides a laundry list of things the spouses can and cannot do, both inside and outside their Tennessee divorce proceedings.

In summary, the automatic injunction affects many activities. It limits what parties can do with their marital property, while allowing expenditures of income to continue operating a business in the ordinary course and to maintain their current standard of living. The spouses cannot modify or cancel insurance policies covering themselves or their children, or change beneficiaries. They are enjoined from tampering with, hiding, or destroying electronically stored evidence, including evidence in computer memory. And, absent exigent circumstances, a parent cannot relocate a child outside Tennessee without prior court permission.

Additionally, The Parties Are Prohibited From The Following:

1. Harassment: Harassing the other spouse violates the Automatic Injunction. A few examples of harassment include calling the other party and allowing the phone to ring incessantly;sending emails or texts that contain lies, lewd, or indecent messages; and refusing to identify oneself when the phone is answered.

2. Threats: The parties are prohibited from lobbing threats at each other. For instance, threatening to remove the children from Tennessee if the other parent doesn’t give in to demands. A threat can be communicated verbally, non-verbally, or in writing.

3. Assault: An assault may be actionable as a criminal matter under Tennessee law, but it is also specifically prohibited during a divorce.

4. Abuse: This covers any form ofdomestic violence against the other party.

5. Disparaging Remarks: There are two ways that criticizing the other spouse can violate the Automatic Injunction. One, bad-mouthing the other spouse in the children’s presence. Two, bad-mouthing the other spouse in front of his or her employer.

Violating the Automatic Mandatory Injunction can lead to a contempt of court proceeding wherein the judge enforces its orders.

Our office can give you further information about filing a Petition for Contempt against the other spouse.
(or how to defend against such a petition)

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com • 1 (931) 919-4376
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Tips For Co-Parenting With a Difficult Partner

10/26/2017

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Peaceful, consistent, and purposeful communication with your ex is essential to the success of co-parenting—even though it may seem absolutely impossible.You cannot control the words or emotions of your ex; you can only control your reactions to them. It all begins with your own mindset. Think about communication with your ex as having the highest possible purpose: your child’s well-being.Before every contact with your ex, ask yourself how your talk will affect your child, remind yourself that only you control your emotions and resolve to conduct yourself with dignity. Make your child the focal point of every discussion you have with your ex-partner.

Remember that it isn’t always necessary to meet your ex in person. Speaking over the phone or exchanging texts or emails is fine for the majority of conversations. The goal is to establish conflict-free communication, so see which type of contact works best for you. Sometimes written communication may be better because you can pause and rethink before you hit send (we encourage you to do so!).

IN OUR EXPERIENCE, THE FOLLOWING TIPS MAY BE HELPFUL:
1. Set a business-like tone.Approach the relationship with your ex as a business partnership where your “business” is your children’s well-being. Speak or write to your ex as you would a colleague—with cordiality, respect, and neutrality. Relax and speak slowly and pleasantly. Smile, even if you don’t feel like it. It can be heard in your voice over the phone.

2. Make requests.Instead of making statements that can be misinterpreted as demands, try framing as much as you can as requests. Requests can begin, "Would you be willing to…?" or “Can we try…?” Remember you can always take serious disagreements to court if necessary but many times a friendly request will resolve your issues quickly.

3. Listen.Communicating with maturity starts with listening. Even if you end up disagreeing with the other parent, you should at least be able to convey to your ex that you’ve understood their point of view. Listening does not signify approval, so you won’t lose anything by allowing your ex to voice his or her opinions.

4. Show restraint.Keep in mind that communicating with one another is going to be necessary for the length of your children's entire childhood—if not longer. You can train yourself to not overreact to your ex, and over time you WILL become numb to the buttons they try to push.

5. Commit to meeting or talking consistently.Though it may be extremely difficult in the early stages, frequent communication with your ex will convey the message to your children that you and your co-parent are a united front.

6. Keep conversations kid-focused.Never let a discussion with your ex-partner digress into a conversation about your needs or their needs; it should always be about your child's needs only.

It is almost certain that you will feel angry and exasperated at times, particularly during and shortly after your divorce or separation. Exercise, take time for yourself, vent to your friends and family, vent to your attorney. Remember to keep negativity off of social media and away from your children. Time will make communicating with your ex much easier and these tips should pave the way.

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

10/25/2017

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Religious dispute cases are few and far between. Courts are understandably reluctant to delve into matters of religion. After all, the First Amendment generally gives parents the freedom to expose their children to whatever religious beliefs they choose. It also prohibits the government from favoring one religion over another. Nonetheless, courts have an obligation to act when children are being harmed by parental conflict.

Consider the case of Lewis v. Parmerter in Sparta, Tennessee. When the parents divorced, the agreed parenting plan designated Mother as the primary residential parent and gave both parents joint decision-making authority regarding the children’s religious upbringing. Since the divorce, the parties have filed numerous petitions for contempt, orders of protection, and motions to modify the parenting plan arising out of, among other disagreements, the control of their children and their religious beliefs. Much of this conflict centers around Father’s refusal or interference with his children participating in extracurricular activities, such as Scouts, football, and other sports which he claims violates his religious beliefs.

Tennessee law provides that where parents are unable to agree on matters of great importance regarding the welfare of the children, primary decision-making authority should be placed in one parent or the other. In the original parenting plan, the parties had joint decision-making authority. After reviewing the record, the appeals court noted the extent of disagreement between the parties concerning the spiritual upbringing of the children, the effect of the parties’ conflict on the emotional health of the kids, and the anxiety the children experienced when they were required to attend the father’s church. The court concluded that these observations and recommendations from the children’s therapist provided a sufficient evidentiary basis to grant to the mother sole decision-making authority with respect to the children’s religious upbringing.

The children’s therapist stated that one child “has become paranoid that ‘Jehovah’ is watching everything that he does and that he will be punished when his father takes him back to ‘Jehovah’s House.'” The children complained to the therapist about all the time they spent at Father’s church. The therapist said the children have increased anxiety, a distrust of Father, the feeling they are being forced to believe something they do not, and that he is not considerate of their own thoughts and beliefs.

The court granted Mother soledecision-making authority regarding the children’s religious upbringing. If you are concerned about a parenting decision that has affected the well-being of your child, our office can advise you of your options.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com • 1 (931) 919-4376
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Who Pays For School Tuition & College After A Divorce?

10/24/2017

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In a March 1, 2017 decision, the Court of Appeals of Tennessee considered an appeal of a trial court order concerning the father’s obligation to pay private school tuition.

In the case, the Final Decree of Divorce entered by the trial court incorporated the parties’ permanent parenting plan, wherein the father agreed to pay for his children’s private school education through high school. In March 2015, the father filed a petition seeking to modify his obligation to pay the tuition. The lower court denied this request, holding that the father’s tuition obligations could not be modified.

Tennessee courts do not have authority to order a parent to pay the undergraduate or post-secondary tuition of a child who is at the age of majority. However, if a parent willingly enters into an agreement to do so, it will be enforced by the Tennessee courts. This type of agreement retains its contractual nature when included in the final decree of divorce, and cannot be modified by the court. However, tuition for private grade school or high school is considered an extraordinary educational expense that may, in some circumstances, be a part of a parent’s duty to support his or her child. Unlike an agreement to pay college tuition, a parent’s agreement to pay for private elementary or secondary education may be subject to modification if it is incorporated into the final decree of divorce.

In considering the father’s appeal, the court explained that in this case, the father’s agreement was to pay for private elementary and secondary tuition, not college or post-secondary tuition. Accordingly, the trial court did have the authority to order this type of support even without an agreement by the parents. The appeals court therefore concluded that the lower court erred in holding that it did not have the authority to modify the father’s private tuition obligation and remanded the matter back to the trial court for consideration.

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

10/23/2017

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Settling property matters between divorcing spouses can be difficult. It is helpful to see how cases actually play out. In an interesting July 11, 2017 case from the Court of Appeals of Tennessee, part of the spouses’ dispute centered around two rings gifted from the husband to the wife during their marriage. After a trial, the lower court ruled that each spouse would receive one ring. The parties filed an appeal.

The question was, were the rings marital property or separate property of the wife? Generally, assets acquired by either spouse during the marriage are presumed to be marital property, and assets acquired by either spouse before the marriage are presumed to be separate property. In addition, assets acquired by one spouse by gift, bequest, devise, or descent are also considered separate property. Significantly, separate property is not part of the marital estate and is therefore not subject to division. If the spouses cannot agree on how to divide property in the event of divorce, the trial court will classify the spouses’ property as marital or separate and assign a value to each piece of property subject to division. The court will then divide the property in an essentially equitable manner, without regard to the marital fault.

The wife contested the trial court’s order awarding each spouse one of the two rings given to the wife by the husband during their marriage. The husband argued that the rings were made from rings belonging to his mother and grandmother, and the wife said she didn’t want them after discovering his infidelity. On appeal, the court ruled in favor of the wife, noting that the only evidence elicited at trial demonstrated that the two rings were a gift to the wife from the husband, that the wife placed the rings in a safe when the parties separated, and that the husband removed the rings from the safe to re-propose to the wife. Although she rejected that proposal, the court found that she never expressed an intent to relinquish her property interest in the rings. As a result, the court held that the two rings should be classified as the wife’s separate property.

If You Have Questions Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com • 1 (931) 919-4376
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What Happens To Student Loans In A Divorce?

10/20/2017

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Division of property depends on the state the divorce is filed in. Tennessee uses the equitable distribution model. This means that if you cannot come to an agreement with your spouse and the court must divide your debts and assets, the standard is a “fair, roughly equal distribution.” Other states follow a community property system where all marital property is evenly shared. Tennessee’s equitable distribution model allows flexibility for different types of debts and assets, like student loans.

As a general rule, a student loan’s owner depends on the timing. If the debt pre-dates the marriage, it is separate property. In the broadest sense, the student is the owner of the loan in most situations—even if the loan was acquired during the marriage.

However, There Are Exceptions To Every Rule:
It is possible for a court to consider a student loan as a marital debt that should be equitably divided. Issues to consider:
  • Did the loan go only toward classes or also toward living expenses?
  • Has the degree earned from the loan benefited both parties, and for how long?
  • What is the earning power of each spouse?

In most cases, student loans belong to the individual student, buteach situation is unique. If one spouse earns significantly more income than the other, the effect of debt payments on the post-divorce budget will influence the decision. Likewise, the court will carefully weigh how the degree itself helped the couple during the marriage. If both parties reaped significant benefits, the related student loan debt could be divided between both parties.

If there is dispute whether student loans are separate property or marital property, a potential solution is to trade assets—where a spouse agrees to own the entire debt in exchange for another concession among the marital estate. There are many options and many ways to divide property, some more complex than others. When ownership is unclear or contested, our office can explain different options and help to find solutions and compromises.

If You Have Questions About Student Loans & Divorce, Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com • 1 (931) 919-4376
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Adultery & Your Security Clearance

10/19/2017

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Many government & military personnel rely upon maintaining a certain level of security clearance to continue in their career. We are often asked how divorce, & especially adultery, may affect a security clearance and thus your career.

Somepeople view adultery as the “kiss of death” to security clearances, because it maybe difficult to prove to theDefense Office of Hearings and Appealsthat an employee who engaged in adultery does not pose a threat to national security given the individual’s susceptibility to coercion related to the affair. The Adjudicative Guidelines for Determining Eligibility for Access to Classified Informationinclude Guideline D, which lists disqualification for “sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress” and Guideline E, which cites “personal conduct or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress.” It also includes Guideline B relating to Foreign Influence if the affair involves a foreign national.

Additionally, certain organizations have the ability to initiate Disciplinary Actions for Misconduct upon discovering an employee or officer has engaged in consensual adulterous behavior. Whether that action could result in a citation, suspension, or outright termination seems to vary. The case of Miller v. Department of the Army (2005), for example, looked at a married army specialist who initially told the police she was raped by a co-worker. That claim was later investigated and determined to be unfounded. As a result, she was suspended for 60 days, because her conduct was “unbecoming” by being “unattractive, unsuitable, or detracting from the employee’s character.”

Employees can also be removed for improper conduct if their extramarital affair interferes with their agency’s mission. It may not matter whether the affair occurred only when the employee was off-duty or whether it was committed with a co-worker. That was the issue in Brown v. Department of the Navy (2000), where a manager at the Morale, Welfare, and Recreation Department had an affair with a Marine’s wife. The U.S. Court of Appeals found the employee’s conduct ran contrary to the Department’s mission and eroded trust and confidence in the Department’s ability to perform its duties.

Finally, adultery may be tantamount to committing a crime, which could impactemployment,clearances, and (in rare cases) your freedom. According to the New York Times, about 23 states have criminalized adultery. In some states it’s a misdemeanor; in some states it’s a felony.

If You Have Questions About Adultery’s Impact On Security Clearances, Please Feel Free To Contact Our Office.
Ryan K McFarland • attorneymcfarland@gmail.com • 1 (931) 919-4376

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What Happens To The Family Pet In A Divorce?

10/18/2017

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The majority of American households have at least one pet. When a married couple decides to divorce, what happens to the pets? Many times, the issue does not reach a conclusion without conflict. In some cases, it requires intervention of the court to solve the problem.

According to the reports from the American Academy of Matrimonial Lawyers (AAML), pet custody disputes are on the rise. Dogs are the animal disputed most often, while cats are second. Many people consider pets as part of the family, which is why custody of pets is a focal point of some divorce cases, especially in couples without children. In some cases, your ex-spouse may know about your strong emotional connection, so they attempt to use it against you.

In the eyes of the law, your pet is considered personal property. For this reason, you can utilize a prenuptial agreement before marriage to ensure your pet remains your property. If it is too late for a prenuptial, consider provisions for your pet in a post-nuptial agreement or written contract. If necessary, you can even create a visitation and custody schedule much like a Parenting Plan.

ISSUES TO CONSIDER:
• WHO DOES THE PET BELONG TO?
When pets belong to either spouse before a marriage, the case becomes much clearer. Additionally, a court will ask who cares for the pet? Those who buy the pet food and take their pet to the veterinarian or groomer have higher chances of succeeding in a court battle.

• WHERE WILL THE CHILDREN LIVE?
When there are children, in many cases, it is best if the pet lives with the kids. Children have a hard enough time with divorce, without losing their pet as well. With shared custody of the children, the custody of the animal can be shared as well. However, understand that some breeds of animals need a more consistent schedule than others, so it may be necessary to keep a strict schedule.

• WHO HAS A LIFE BETTER SUITED TO PET OWNERSHIP?
The final question courts may ask is who can take care of the pet more easily? The person who works long hours and travels often will be less likely to provide a good environment for a pet. A person who truly cares about the well-being of the pet should consider where the pet will be better suited to live.

For A Free Consultation Contact: Ryan K McFarland • attorneymcfarland@gmail.com • 1 (931) 919-4376
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Five Steps To Take If You Suspect Your Divorcing Spouse Has A Mental Disorder

10/17/2017

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Bringing up the issue of mental illness during custody negotiations is emotionally charged. It will almost surely place more strain on your relationship.

However, if you legitimately believe that a mental illness may exist, you must act in the best interest of the safety of your children & address the issue appropriately.

1. Tell your attorney about your concerns right away. Be very specific about why you think that mental illness is a factor. Keep detailed notes of any incidents, including dates and as many details as possible. For example, has your spouse threatened suicide? Does he/she admit to being depressed? Be clear about exactly how you think your spouse's illness, if it exists, could affect his or her ability to parent safely and effectively.

2. Provide your attorney with the names and contact information of any doctors that your spouse uses for medical care. It's possible that your spouse has already been diagnosed with a mental disorder -- in which case your attorney may be able to subpoena the doctor's notes or testimony if no other evidence is available.

3. Be prepared to file a request with the court for a mental health evaluation. Family courts usually have the ability to compel someone to submit to psychological testing if there's no other evidence available. While this can help you get a formal diagnosis to enter into the record, realize that this is probably not going to make your relationship with your spouse go any easier for the time being.

4. Be prepared to undergo psychological testing yourself. False allegations of mental illness are a common weapon in family court, so the judge may also want to get an expert's take on your mental stability. -- Just in case.

5. Be open to compromise. Mental illness or not, your spouse is still your children's other parent. Unless you believe that any contact is potentially dangerous, be open to solutions like supervised visitation, or visitation that's contingent on your spouse getting treatment for his/her condition.

For A Free Consultation Contact: Ryan K McFarland • attorneymcfarland@gmail.com • 1 (931) 919-4376
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“State Skipping” During A Custody Dispute

10/16/2017

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There is a lot of advice out there about what to do and not do during a custody battle. Please believe us when we say that very high on the list of things not to do is "State Skipping With Your Child" while the custody battle is waging on.

Not only will that likely cost you the custody that you so desperately want, but it could land you in jail and make you a convicted felon. Of course, this won't help you win any custody battles later, either.

A Pennsylvania woman recently relocated to Tennessee, her 6-year-old child in tow, without telling the child's father where they were going. The father made the discovery upon going to the mother’s former home to pick the child up for his scheduled visitation. The mother failed to make the proper notification to the father of the intended move, and a warrant was issued for her arrest. When she returned to Pennsylvania for a custody hearing, she was taken into custody by police.

Perhaps a few decades ago that would have worked, and the father wouldn't have been able to find them without a lengthy and expensive search. In the current digital age, however, it's a lot harder to just skip states and start over without leaving a trace. Most parents lack the financial means and know-how to acquire a new identity or live entirely off-the-grid with their children. Not to mention that this is rarely, if ever, in the best interest of your children.

The reality is that many parents don't realize that they're doing anything wrong. In their minds, they are not kidnapping. They think that it's impossible to kidnap their own child. They feel entitled to make unilateral decisions about where the child should live, regardless of what the other parent may think or feel. They don't even bother to hide because they believe their actions are legal.

That's why it's incredibly important to discuss limitations and ground rules with your attorney during any custody battle or dispute. Your attorney may not realize that you don't understand something is illegal or at harmful to your case. It's better to ask if something you are thinking about doing is okay.
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Temporary Child Custody Orders

10/13/2017

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Requests for temporary custody orders are filed in cases of divorce, legal separation, annulment, and actions for separate maintenance. A temporary custody order will be replaced with a permanent order when the divorce or other case is final. Obtaining temporary custody orders is up to the discretion of the court.

Emergency Temporary Custody:
In many custody proceedings, whether it is through divorce, modification of custody or simply establishing initial custody and parentage, there are emergency circumstances where a parent can — and should— ask the court to grant him or her emergency temporary custody over the minor child.

In Order To Have Grounds To Ask For Emergency Temporary Custody, A Parent Must Be Able To Prove That There Are Serious Circumstances That Warrant An Emergency Change.
This can include showing the child in question could potentially be removed from the jurisdiction of the court (usually the other parent threatening to take the child out of the state and never returning), or there is fear that potential danger or imminent harm will occur if the child continues to stay in the other parent’s care (such as the mother or father recently obtaining a DUI with the child in the car and a history of drinking heavily around the child).

An emergency petition for a temporary child custody order may be made ex parte. (Ex parte means no notice of the petition or hearing is given to the other parent.) Consequently, the other parent is prevented from participating, arguing, or presenting evidence. It’s because the other parent is left out that the court must review its temporary emergency custody order within 15 days. The review hearing is the other parent’s opportunity to present his or her side of story to the judge. After evidence and testimony is provided by both parents at the hearing, the judge will either continue the order, modify the order, or terminate the order.

An accident that puts the custodial parent in the hospital for an extended period, for example, is reason for the non-custodial parent to request a temporary custody order. The court can order temporary child custody whenever an emergency situation arises even after the divorce is final.

Non-Emergency Temporary Custody:
This could arise when one parent wants the status quo maintained (or stopped) with a temporary court order until a final order is entered. It’s possible that both parents want a temporary order. They may even agree on a temporary parenting plan.

In many cases where the parents are communicating, they want a plan in place so they both know what they’re doing with regard to legal decision-making and childcare. When parents agree, it’s possible that only one will file a proposed temporary parenting plan, which the court may adopt by default. Before the divorce, either parent may file a petition asking the judge to order a temporary parenting plan. What happens next will depend upon the circumstances.

The judge may prefer to not rule on the petition, preferring instead to wait until the trial and issue permanent orders then, especially when parents don’t have a genuine, heated dispute. This is because any hearing on temporary custody is likely to take just as long as a full-blown custody trial. In other words, one custody battle in the case is sufficient for many trial judges. Judges resist inviting another battle over the temporary custody question. If the parents cannot agree on a temporary custody plan,if the judge opts to rule on the petition for a temporary custody order, then the parents will likely be ordered into mediation, just as they would if they were not in agreement on a permanent parenting plan. If mediation doesn’t resolve their differences, then a hearing will be held. Both parties present their cases at the hearing, along with evidence, just as they would in a custody trial.
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Tax Considerations With Child Support & Alimony

10/12/2017

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Child support is neither taxable income to the recipient nor a taxable deduction for the paying party. However, alimony or maintenance is an income tax deduction for the paying party and considered taxable income for the receiving party.

Whenalimony is a part of the divorce decree or settlement agreement, care must be taken to properly draft the papers and make sure that payments are qualified for a tax deduction by the IRS. You do not want to pay your ex-spouse alimony for a year only to have the IRS disallow the tax deduction.

IRS Publication 504 specifies the requirements for alimony to be allowed as a deduction. First, the payments must be specified as alimony in the decree or property settlement agreement. Though payments can be made to a third party, the ex must consent in writing. Since the payment must be in cash, trading off property for alimony is not sufficient. The decree must also provide that alimony will cease upon the death of the recipient.

At times, the IRS will look to the documents and determine that payments are actually child support rather than alimony. Generally, this issue arises if the payment is tied to any event related to a child. If payments are reduced or eliminated when the child reaches a certain age, leaves the home or becomes employed, the IRS may deem payments to be child support and disqualify the deduction.
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What Happens to Your Inheritance in a Divorce?

10/11/2017

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In Tennessee, an inheritance is considered to be separate property whether you received it before or during the marriage. What can change an inheritance from separate to marital property is what you do with the money during the marriage.

ONE EXAMPLE OF HOW THINGS CAN GO WRONG:

You received an inheritance which you deposited into a savings account that is owned by you and your spouse. Your intention was to save that money and use it to buy a home one day. Years go by and each of you contributes to that savings account, but you never end up buying that home. Since you deposited the inheritance check into an account owned by both of you, and both added additional money to that balance over the years, the inheritance has now become co-mingled with marital assets, so it can no longer be considered to be separate property. It is subject to division by the court.

A BETTER SCENARIO:

You pick up your inheritance check from an attorney’s office. After work, you go directly to the bank and open a new savings account in your name only where you deposit the check. Years pass and the balance grows, but you are the only one who has access to that account, you are the only one who deposits money into the account and those funds are never commingled with any of your other joint accounts, so it remains separate property. It is safe from division during a divorce.

Life is full of the unexpected. If you are contemplating divorce, or even if divorce is the furthest thing from your mind, our office can advise you on the best measures to take to protect your inheritance.
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Think Creatively To Maximize Child Visitation

10/10/2017

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More and more parents are turning to “Virtual Visitation” as a way to come to a child custody agreement. Parents must understand that this is not in lieu of traditional visitation, merely a supplement, and is always subject to approval by the court.

“Virtual Visitation” is becoming increasingly popular across the country and in Tennessee because of its convenience. Again, it's not meant to get rid of traditional visitation, only supplement it. "Virtual Visitation" involves phone calls, video chats, texting, emailing and chatting on other apps.

If parents want to utilize “Virtual Visitation”, they will need to agree that this is a valid method to supplement the rest of the schedule. Parents must also make their children readily available for virtual chats with the other parent. There can be no censorship by either parent when this is part of the visitation schedule. Also, parents should take this form of visitation as seriously as traditional visitation and be punctual and reliable.

“Virtual Visitation” is a great way for parents who work night shifts, travel a lot for work, are in school or who don't live near their children to spend time with them as often as possible. It's great to help the parents bond with their children even though they cannot spend time with them in person.

These are just a few examples of how parents are using this form of visitation, or “seeing” a child after school to discuss their day via video chat or reading them a nightly bedtime story.

When it comes to maximizing time with your children, our office will assist you in creating a schedule with methods that you may not have considered. We believe that any time spent with your child is priceless.
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Adult Adoption In Tennessee

10/9/2017

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Tennessee law allows adult adoption. This often occurs in a situation such as “My aunt and uncle raised me and I want to legally recognize them as my legal parents.” or something similar. The main issues to understand regarding an adult adoption are:
  • If two people are adopting an adult, they must be married to one another. A married person cannot adopt without their spouses consent.

  • The only way to retain one birth parent’s parental rights in an adult adoption is for a step-parent adoption to occur. Otherwise, both birth parents’ parental rights are terminated.

  • The birth parents do NOT have to consent to the adoption but they must be given notice of the action, unless they are deceased. The law states, “When petitioner seeks to adopt a person who is eighteen years of age or older, only the sworn, written consent of the person sought to be adopted shall be required and no order of reference or any home studies need be issued." Tennessee Code Annotated §36-1-117(j)(1). Also, if the adult adoptee was previously adjudicated incompetent, "the written consent of the adult person's guardian or conservator of the person shall be required." Tenn. Code Ann. § 36-1-117(j)(2)(a).

  • When adopting an adult over 21, that person needs to be specifically named in wills or estate planning documents of the adoptive parents. The word “child” or “heirs” or the like, will not cover that adopted person if they were 21 or older at the time of the adoption.
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Overview of Prenuptial Agreements in Tennessee

10/5/2017

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Tennessee prenuptial agreements document a couple’s wishes before marriage to protect them in the event of a divorce. The Prenuptial Agreement can address property ownership, property division, alimony, and many other legal issues that would need to be dealt with in the unfortunate circumstance of a divorce. A properly drafted, negotiated, and executed agreement may be very difficult to set aside. To set aside a Prenuptial Agreement, there must be proof that the process was flawed, such as the existence of duress, coercion, or a failure to disclose or properly value assets.

Today, Prenuptial Agreements are very popular between individuals who have been married before or those with meaningful estates. The main advantage is knowing ahead of time what will happen if the marriage ends. Some provisions however, such as those relating to custody and child support, will not be enforceable, even if a Prenuptial Agreement lists the parties’ desired outcome. Courts always have the authority to look after the best interest of children.

You Should Be Aware: however, that many Prenuptial Agreements that have been prepared and executed from purchased forms on the Internet can be successfully challenged because most forms do not address what needs to be covered or what can be covered. Plus, how they were agreed upon can be more important than what was agreed upon.

A Prenuptial Agreement Can Be Attacked As Follows:
  • Did the less-propertied spouse receive independent legal advice?
  • Was there full disclosure of assets and their values?
  • Beyond these first two questions, inquires will turn to the process itself, seeking to determine if the process was “fair.” While each case is different, a few questions are most common. When was the Prenuptial Agreement presented to the less-propertied spouse? Two months before the wedding or twenty minutes before the wedding? How financially savvy is the less-propertied spouse? High school graduate or CPA? Were the assets valued? When? By whom? Were the valuations significantly understated? Who prepared the document? How one-sided was the deal at the time it was signed? How one-sided was the deal at the time of the divorce? How is the less-propertied spouse going to live after the divorce?

Prenuptial Agreements can be redone after the marriage if the circumstances change or the parties change their minds about a particular provision. There can even be a “sunset provision,” dictating that the agreement expire after a certain period of time. In any event, the Prenuptial Agreement should spell out the procedure to be followed if both spouses want to make a change. If these circumstances apply to your situation, definitely get expert legal help. Neither spouse should try to make these types of changes on his or her own.
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Transgender Name Changes in Children In Tennessee

10/4/2017

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The Tennessee Court of Appeals recently reversed a decision of the trial court of Williamson County that held a child could not change his/her name to that of the opposite gender.

The sixteen-year-old child was born female but identifies as male. The child is transgender and undergoing a medical transition via hormone therapy from the female gender to the male gender. The child was diagnosed with Gender Dysphoria, a medical diagnosis that refers to the emotional distress of having a gender identity that is different than the gender assigned at birth. Treatment for Gender Dysphoria includes addressing psychological distress through social transition and medical treatment for the body. Part of the social transition may be changing one’s name to reflect the person’s experienced gender.

The child’s continued use of a feminine name caused anxiety and embarrassment. The child was known socially as “Charlie” and wanted that to be his legal name.

The parents petitioned to change the child’s first and middle names. The petition provided all the information required by law.

Three days later, the trial court denied the petition without a hearing, citing the lack of a “valid reason” for thename change and the parents filed a motion to alter or amend.

On appeal, The Court of Appealsreversed the trial court. The Court stated that all persons have the right to change their name at will, as long as the change does not interfere with another’s rights and is not being made for fraudulent purposes. Absent any fraudulent or legally impermissible intent, the State has no legitimate concern in a petition tochange a person’s name.

Tennessee’s statutory name-change procedures are found atTennessee Code Annotated§§ 29-8-101 to -105. The procedures are applicable to both minors and adults.

To change one’s name, one must file a petition giving the reasons for desiring the name change or correction. The only restrictions on changing one’s name are found in Tennessee Code Annotated§ 29-8-101, which restrictions are based on certain criminal offenses (sexual offenses) and where the court finds the petition is being made to defraud or mislead. The determinative factor in apetition to change the name of a minor childis whether the change is in the child’s best interest. Three witnesses testified in court, and all of them stated unequivocally that the requested name change was in the child’s best interest. Additionally, statements and letters from three professionals were admitted into evidence, and all of them stated unequivocally that the requested name change was in the child’s best interest. No evidence was introduced indicating any basis for concluding that the requested name change was not in the child’s best interest.

This case is also noteworthy because, according to the Court, “There appear to be no cases in Tennessee that addressed the change of a child’s first or middle name.” All the caselaw until now concerned changing a child’s last name.
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What To Do... When The Other Parent Cannot Pay Child Support & Refuses to Work?

10/3/2017

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It happens all too often. A parent is ordered to pay child support but you believe that they are not making an effort to find a job because they want to avoid paying that child support. What can you do when the alternate residential parent is not paying child support because they do not have a job?

Under Tennessee law, both parentshave a responsibility to contribute to raising the child. In situations where the child lives with one parent, that parent bears all of the financial burden of raising that child when the child’s other parent refuses to contribute. The state of Tennessee’s child support guidelines allow for imputing (assigning) income for non-residential parents who seem to be underemployed or unemployed in an effort to dodge their obligation to pay a portion of their income for child support.

If a parent seems to be voluntarily or willfully underemployed or unemployed the court needs to see evidence that the parent is capable, that they have the educational and employment background to earn more income than they are earning. For example, if a parent with a Bachelor’s degree and 15 years of work experience at a professional level loses their job and does not exert sufficient effort towards finding a new job, but instead takes a “menial” job, the court might impute income to that parent if it is clear that their underemployment it purposeful. However, if a parent has been unable to find a new job, or has taken a part-time job in order to care for a sick relative, or for some reasonable purpose the court may not impute income for that parent.

If you can prove that your co-parent’s underemployment or unemployment is purposeful and willful the court may impute a minimum income to that parent for child support purposes according to the Tennessee child support guidelines. Our office can guide you in gathering the information necessary to present to the court to collect the child support to which you are entitled.
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Substance Abuse & Child Custody Modification

10/2/2017

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Our office takes the safety of your children very seriously. During your original divorce proceedings, it is highly advisable to consult with your attorney about options should your former spouse develop a substance abuse problem. Indeed, this should be of primary concern in families that have experienced addiction issues before. If you have reason to believe your former spouse has a drug or alcohol problem, your best option is to confront this early in the divorce proceedings and develop a workable plan for everyone involved.

However, life can get in the way of the best laid plans and sometimes even the best parenting plans need substantial modification. Such is the case when one parent in a divorce with children develops a substance abuse problem – especially one that is severe enough to adversely affect the daily lives of your kids.

When you establish yourparenting plan in the early stages of divorce proceedings, it is best to establish who makes decisions during various states of residential time or parenting time. Should these provisions need to be amended due to the onset, continuation, or exacerbation of problematic substance use or addiction concerns with one (or even both) parent(s), consulting your lawyer is of primary importance.

If the parent with the substance abuse problem is the non-custodial parent, the court may order supervised visits in controlled settings. The focus here is on the maintenance of the parental relationship with the child, but also on the child’s safety. If child protection agencies or authorities have been involved, the court may order their continued supervision – sometimes with both parents.

Action plan for concerned parents:

If you are concerned about your former spouse’s relationship with drugs and/or alcohol and how it could be affecting family dynamics or the welfare of your children, consider the following first steps:
  • Express Concern To Your Child’s Community: Speak with the troubled parent, enlist familial or community support, seek counseling, or interface with clergy. If there have been demonstrable issues (for example, a DUI), make sure your children’s care providers and schools are aware that there are ongoing issues.

  • Gather Evidence: This could be in the form of obtaining police reports, arrest records, or medical records, but it’s imperative that you have proof if you are looking to amend court documents. Additionally, this evidence could help your former spouse qualify for treatment options, which could be beneficial to your children and family.

  • Consult With Your Family Law Attorney: Your attorney may suggest that you file a restraining order, refuse visitation, or appeal to amend your divorce decree. Do not take action without adequate representation, and without consulting with legal counsel.

Remember, the safety of your children comes first. You will most likely feel angry or resentful toward your ex during this time. However, it is in your and your child’s best interest for you to remain calm yet vigilant. Our office can help you navigate this difficult time with your family.


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Can a Messy Home Affect Child Custody?

9/29/2017

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No one expects any parent to have a spotless home. However, a court in Davidson County modified child custody to make the father the new primary residential parent and to put restrictions on the mother’s visitation partly because of the condition of her home. The court ruled that it was an unfit environment to raise a child.

As with all child custody modification cases, the details are important. In this instance, the mother produced several witnesses who admitted that the home was messy, but that it did not interfere with the well being of the child. The court was inclined to agree with the Court Appointed Special Advocate (CASA) volunteer who visited the home and reported she did not believe that mother's house was an appropriate environment to raise a child. She explained that the home had three bedrooms but only the living room was actually used. The other rooms were "stuffed" with mother's belongings, and trash was scattered throughout the home. Additionally, at least one bedroom and the basement were completely inaccessible. According to the CASA volunteer, the living room contained one bed in which both mother and the child slept, and occasionally did school work. She testified that she recommended homemaker services to mother and offered to help mother get her home in order, but mother refused assistance. These problems were made worse by the fact that the mother home-schooled the child, and thus the majority of their time was spent in the living room of the home which contained one bed for shared use.

The court ruled that the mother would not have overnight visitation until the home was made fit for the child.
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Who May Not Adopt in Tennessee?

9/28/2017

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Along with the requirements for adoptions found here (insert link), there are a few categories of people who are not allowed to adopt in Tennessee. This is designed with the best interest of the child in mind.

Who May Not Adopt?
  • One person of a married couple can not adopt without the other spouse adopting as well.
  • Two unmarried people can not adopt the same child. (Example: Adult raised by foster mother would like for the foster mother and a biological uncle to be her legal parents. Unless the foster mother and uncle are married to one another, this is not possible.
  • Sometimes a single parent, usually a mother, will want one of her relatives to adopt the child, terminating the birth father’s rights, but without terminating her own rights. While this may sometimes be in the best interest of the child, the requirement that both parents’ rights be terminated before adoption only excepts step parent adoptions, and therefore the desired adoption is not allowed.
  • A non-related person without a home study.
  • Dead people (Sometimes a grandmother, for example, will adopt and want her deceased husband included in the action. This is not allowed.)

Who Is A “Relative?”
Some of these limitations bring us to the question of who is a “relative?” Tennessee law tells us that “related” means grandparents or any degree of great-grandparents, aunts or uncles, or any degree of great-aunts or great-uncles, or stepparent, or cousins of the first degree or any siblings of the whole or half-degree or any spouse of the above listed relatives. If you are unsure whether you fall into this category, our office is happy to look at your family tree and let you know (it can get confusing)!
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Requirements to Adopt from Foster Care in Tennessee

9/26/2017

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If you are thinking of adding to your family through adoption of a child in the care of Tennessee Child Services, it is important to note that around 80 percent of children adopted from foster care are adopted by their current foster parents. In fact, the Department of Children’s Services gives adoption preference to families who are already caring for a child who becomes eligible for adoption and can be released from DCS custody.

Since these children may be vulnerable and definitely need a loving, stable environment, DCS imposes some preliminary requirements. Foster parents in Tennessee are automatically approved to adopt children, as the requirements for the fostering and adopting are the same. This makes it easier for foster parents to adopt the children they are caring for in a seamless transition.

The Requirements for Foster-Adoptive Parents in Tennessee Are:
  • Can Own or Rent a Home
  • Can Work Full Time
  • At Least 21 Years Old
  • Valid Tennessee Resident
  • Capable of Meeting Family’s Financial & Emotional Needs

Foster-adoptive parents can be married, single, or divorced, and there are no requirements or restrictions based on whether they already have children.

After verifying that you meet these requirements, you can move toward adopting a child who is in the custody or guardianship of DCS by completing a formal home study conducted by DCS.

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Overview of “Independent” Adoptions in Tennessee

9/25/2017

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Independent adoptions (commonly referred to as private adoptions) most often occur when a birth mother is pregnant and determines she is not able to raise the child. She may identify a friend or family member that is willing to adopt. Many birth mothers feel strongly that they do not want the child to be placed in foster care, and would rather choose a family they know will love and care for the child.This process has many details that must be taken into consideration and should definitely be guided by a knowledgeable attorney.

Tennessee has a mandatory waiting period of three days after the baby is born before a Court can accept the surrender of the child. For example, if the child is born on a Monday, the first possible day for a surrender would be Friday. As a practical matter, it often takes longer based on the schedule of the Court, attorneys, and parties involved, as well as the large amount of paperwork that must be completed.

The hearing for surrender occurs in the Judge’s chambers. The birth parent and his or her attorney meet privately with the Judge to ensure that the birth parent understands the rights that she is relinquishing and that she is making the decision of her own free will. Then the adoptive parents and their attorney meet privately with the Judge to accept the surrender.

Once the surrender of parental rights is executed, your attorney will ask the Court to grant the prospective adoptive parents guardianship or partial guardianship of the child. Guardianship allows the prospective adoptive parents to access medical records and make medical decisions, apply for health insurance and other benefits, and care for the child.

In 2015, the time period for a birth parent to revoke the surrender of parental rights decreased from ten days to three days after the surrender. The three-day period does not include weekends and holidays. No reason is required for the revocation, and the child must be returned to the person entitled to custody prior to the surrender. This possibility should be kept in mind if you enter into this adoptive process.

It is important to note that Tennessee has strict laws concerning payments to birth mothers. Payments must be limited to actual expenses and only for a limited period before and directly after the birth. Payments should only be issued through your attorney’s trust account to ensure that there is a record of all payments and that your attorney has approved the legality of the expenditure. There are criminal penalties for payments to a birth parent that are outside the parameters of the law.

Find More Information Here
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Military PCS: Tennessee’s Parental Relocation Act and Protecting Your Custody Rights

1/28/2016

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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 is no reasonable purpose for 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 child if the move occurs; or
  1. The motive for the move is vindictive .

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.
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Annulment in Tennessee: A Faster, Easier Divorce?

1/26/2016

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​ 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.
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Awarding Alimony in Tennessee

1/26/2016

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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.
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Division of Military Retirement Pay in a Divorce

1/23/2016

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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 ½%) 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.
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Uncontested or “Agreed” Divorce from Start to Finish

1/14/2016

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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.
​
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.

DEDICATION. EXPERIENCE. RESULTS.

AGGRESSIVE,THOROUGH AND COMPASSIONATE REPRESENTATION FOR MILITARY AND CIVILIAN CLIENTS IN CLARKSVILLE , TENNESSEE SINCE 2004

For Immediate Assistance Text or Call: 1 (931) 919-4376
128 North Second Street, Suite 200, Clarksville TN 37040

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