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.

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Ryan K McFarland • attorneymcfarland@gmail.com •1 (931) 919-4376

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.

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Ryan K McFarland • attorneymcfarland@gmail.com •1 (931) 919-4376

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

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

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

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

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.

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.

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.

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.