Posted by: K.O. Herston | August 29, 2014

Photo of the Week: Black Bear Cub

Knoxville Divorce

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Knoxville surrogacy attorneysFacts: A married couple, Intended Mother and Father, entered into a surrogacy agreement with Surrogate Mother. Per the surrogacy agreement, Intended Mother and Father obtained an egg from an anonymous, surrogate egg donor; the egg was fertilized in vitro with Father’s sperm; and the fertilized egg was implanted in Surrogate Mother’s uterus. The process was successful and Child was born.

The parties entered an agreed Order of Parentage declaring that Father was the legal father of Child and Intended Mother was the “legal mother” of Child. It further provided that Surrogate Mother should not be identified as the Mother of the baby on the baby’s birth certificate; if the hospital or agency’s policy precluded identifying Intended Mother as the mother of Child, then the agreed order said the mother should be listed as “unknown or unidentified.” The trial court also entered an order of adoption declaring Child to be the adopted child of Intended Mother.

The Tennessee Department of Health (“Department”) filed a motion to intervene asserting that Surrogate Mother’s name should be placed on the original birth certificate and that Intended Mother’s name could only be placed on a new birth certificate after she obtained an Order of Adoption.

The trial court ordered the Department to issue an original birth certificate showing Child’s mother as “unknown” in the place for listing the mother. The trial court also ordered the Department to issue a new birth certificate by adoption identifying Intended Mother as Child’s mother.

Both the Intended Parents and the Department appealed.

On Appeal: The Court of Appeals reversed the trial court.

The issue presented is who should be listed as Child’s mother on the certificate of live birth — Intended Mother, Surrogate Mother, or the unknown egg donor?

The Vital Records Act of 1977 (the “Act”) is codified as Chapter 3 of Title 68. Pursuant to Tennessee Code § 68-3-103, the Tennessee Department of Health is charged with the responsibility of, inter alia, developing regulations “necessary for the creation and efficient performance of an adequate system of vital records, and give instructions and prescribe forms for collecting, transcribing, compiling and preserving vital records.” The information collected on the records is to be “such as will aid the public health of the state.”

Federal law establishes the National Center for Health Statistics (the “Center”) and directs the Secretary of Health and Human Services to act through the Center “for the purpose of improving the effectiveness, efficiency, and quality of health services in the United States.” 42 U.S.C.A. § 242k(a). “To assist in carrying out this section,” the Secretary must “cooperate and consult with…State and local health departments and agencies.” In order to “secure uniformity in the registration and collection of mortality, morbidity, and other health data,” it is the Secretary’s responsibility to prepare and distribute suitable and necessary forms for the collection and compilation of such data.

The Center has promulgated a U.S. Standard Certificate of Live Birth (the “standard certificate”). In addition to recording the names of the parents and child, the standard certificate includes detailed medical information regarding the mother’s pregnancy, including the date of her first and last prenatal care visits and the number of total visits; height; prepregnancy weight and weight at delivery; whether she received food assistance; number of previous births, pregnancies, and the outcomes of those events; whether she smoked cigarettes before and/or during the pregnancy; and the date of her last menses. The form includes detailed information about the birth itself, including risk factors of the pregnancy; obstetric procedures; infections present and/or treated during the pregnancy; onset of labor; characteristics of labor and delivery; method of delivery; and maternal morbidity. Finally, it includes information regarding the newborn. The guide to completing the birth certificate advises that “all information on the mother should be for the woman who gave birth to, or delivered the infant.”

After reviewing the record, the Court concluded:

As we consider the intent of and purpose served by the Act, we have determined that the “mother” to be entered on the certificate of live birth required by Tennessee Code § 68-3-301 is the same as that used in preparing the standard certificate, i.e., the woman who delivers the child. The purpose of the Act, in the broadest sense, is to aid the public health of the state; to that end, the Act aims “to promote and maintain nationwide uniformity in the system of vital records” by mandating that birth certificates reflect the recommendations of the Center. Similarly, the goal of 42 U.S.C.A. § 242k is to improve health services in the United States. Using the same definition of mother enables the state and federal governments to collaborate in pursuit of their respective goals.

Construing the Act in this fashion is also consistent with the definition of “live birth” at Tennessee Code § 68-3-102:

(10) “Live birth” means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of the pregnancy, that, after expulsion or extraction, breathes or shows any other evidence of life, such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Heartbeats shall be distinguished from transient cardiac contractions, and respirations shall be distinguished from fleeting respiratory efforts or gasps;

Thus, “mother” as used in the Act is the woman who produced the “live birth.”

Accordingly, the trial court was reversed and the Tennessee Department of Health was directed to issue an original birth certificate listing Surrogate Mother as Child’s mother.

K.O.’s Comment: It is worth noting this outcome will not change Intended Mother’s entitlement to a new birth certificate by adoption that lists her as Child’s mother. It only says the original birth certificate must list the mother who actually delivered the baby.

In re Adoption of Male Child A.F.C. (Tennessee Court of Appeals, Middle Section, July 16, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Knoxville divorce lawyersThe band is back together and planning to cross this beautiful state once again to spread the good news about all the noteworthy developments in Tennessee family law since last year’s seminar.

We are excited to return to Memphis, Nashville, Chattanooga, Johnson City and Knoxville again this year.

Here is the schedule:

  • Memphis: Monday, November 17, 2014
  • Nashville: Tuesday, November 18, 2014
  • Chattanooga: Wednesday, November 19, 2014
  • Johnson City: Thursday, November 20, 2014
  • Knoxville: Friday, November 21, 2014

Lawyers and family law mediators, go ahead and hold one of those dates on your calendar.

Stay tuned to this blog and the Seminars page for additional information.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Knoxville divorceFacts: Mother and Father married, had two children, and divorced. Mother could not be located at the time of divorce though Father was granted custody of the children by default.

Father subsequently remarried. Father’s new wife desired to adopt the children.

Father filed a petition to terminate Mother’s parental rights. A civil summons was issued and returned unserved because Mother had moved. Father filed a notice indicating that Mother’s current location was unknown. Notice was subsequently published in a local newspaper for four consecutive weeks. Nothing in the record indicates that Father requested to make substituted service or the trial court explicitly allowed service by publication.

The trial court ultimately entered a default judgment terminating Mother’s parental rights. Father’s new wife subsequently adopted the children.

Nine years later, Mother filed a petition to set aside the order terminating her parental rights for lack of personal jurisdiction flowing from Father’s failure to serve her with process. At the hearing, the proof showed — and the trial court found — Father failed to make diligent efforts to locate Mother to accomplish personal service of process.

The trial court entered an order setting aside the order terminating Mother’s parental rights on the basis of improper service of process, which defect rendered it void.

Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

A voided judgment is one that is invalid on its face because the issuing court either lacked subject matter or personal jurisdiction over the proceedings, or the judgment itself was outside of the pleadings. A voidable judgment, on the other hand, is one that is facially valid and requires proof beyond the face of the judgment to demonstrate its voidableness. The distinction between void and voidable judgments is critical as to whether a court order may be challenged directly or in a collateral proceeding.

Put simply, a voidable judgment is valid until it is invalidated by an order of the court. A void judgment, however, is a complete nullity.

Failure to adhere to the Tennessee Rules of Civil Procedure in giving notice and serving process have been held to deprive the court of personal jurisdiction over the defendant and result in a void judgment. In other words, improper notice of the lawsuit renders the judgment granted thereon void.

Tennessee Code § 21-1-203(a) requires “diligent inquiry” to attempt to determine the unserved defendant’s residence. Tennessee Code § 36-1-117(m)(3) requires that a plaintiff in a termination of parental rights and adoption case seek an order permitting publication from the trial court, which request is to be accompanied by a detailed affidavit attesting to that party’s efforts to locate the defendant. Constitutional due process requires actual notice if the interested party’s name and address are reasonably ascertainable. Constructive service is the last resort and is only permitted when the defendant’s residence is unknown. Only when diligent inquiry fails to ascertain the residence of the defendant may service by publication be used.

After reviewing the record, the Court concluded:

[W]e must [] conclude that the requirements for service by publication were not met, that the trial court never acquired jurisdiction over Mother, and that the resulting order terminating Mother’s parental rights was void….

We recognize that the resolution of this case results in profound consequences for not only the parties, but the minor children at issue. At the time Mother returned to court to assert her rights, Mother had been removed from the children’s lives, by her own hand, for nearly a decade. In that period of time, the children were adopted by Father’s wife, and presumably, worked to move forward with their lives in the face of Mother’s abandonment. We do not set aside the order terminating Mother’s parental rights lightly, nor do we ignore the havoc that this decision may create for the children in the future. Regardless of those issues, however, we cannot disregard the fact that the trial court failed to properly acquire jurisdiction prior to terminating Mother’s parental rights….

Here, Father failed to make diligent efforts to locate Mother before resorting to service by publication. As a result, the trial court never acquired jurisdiction over Mother. Accordingly, the order terminating Mother’s parental rights was void ab initio.

Accordingly, the trial court’s judgment was affirmed.

Concurring Opinion: Special Judge Summers wrote a very unusual concurring opinion in which he agreed that the law requires this outcome but notes he does “not agree with the results, which surely will damage these children and destroy a family.” He felt it appropriate to include his opinion Mother that “lost her privilege to be called a mother over ten years ago after abandoning her children….” Special Judge Summers concludes with this plea:

Surely this cannot be the law in Tennessee. If it is as my colleagues have convinced me, then it needs to change ab initio. The best way is for our Supreme Court to take this case on a Rule 11 application and reverse this Court’s decision. That might obviate any other cases of unintended consequences, many of which we are unaware. Tell us that this was a voidable judgment and was valid because of the statute of repose, laches, due process, or fundamental fairness to the children and the new family. We need to settle this important question of law to all Tennessee families. This is a case that cries out for the need to secure settlement of questions of public concern. It is a classic Rule 11 application for permission to appeal.

K.O.’s Comment: Special Judge Summers’s call for what some might term “judicial activism” or “legislating by the judiciary” is highly unusual, particularly since this “important question of law” is in fact well-settled. The Court clearly looked for any way to justify a different outcome but the well-settled law did not allow it. Disapproval of the result is not a valid basis for ignoring a parent’s constitutional right to due process. While Mother has been a terrible parent, the Constitution requires that her parental rights be afforded the greatest respect until they are terminated. A parent’s procedural due process rights cannot be — and should not be — dependent upon his or her personal qualities as a parent. Father had an obligation to follow the law in terminating Mother’s parental rights. Father’s failure to do that — and his failure alone — caused this result. I think Judge Summers’s call for an outcome-based approach to such an important matter of constitutional law is dangerous. The Supreme Court should respectfully pass on his invitation.

Turner v. Turner (Tennessee Court of Appeals, Western Section, July 7, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: K.O. Herston | August 22, 2014

Photo of the Week: Mother Bear

Black Bear

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: K.O. Herston | August 21, 2014

Child Support Increase Reversed in Pulaski, TN: McFarland v. Bass

Knoxville child supportFacts: Mother and Father, parents to two daughters, were divorced. By agreement, Father was designated the primary residential parent and Mother enjoyed 156 days of parenting time. Mother was ordered to pay child support of $364 per month.

The following year, Mother petitioned to change custody. Father answered, denying that a material change of circumstances justifying a change of custody existed.

After a trial, the trial court found there was no material change of circumstances, recalculated mother’s child support obligation (resulting in a slight increase), and awarded Father attorney’s fees of $5600.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

Modification of an award of child support is governed by Tennessee Code § 36-5-101(g)(1). Modification must be based on a “significant variance, as defined in the child support guidelines . . . between the guidelines and the amount of support currently ordered.” Tenn. Comp. R. & Regs. § 1240-02-04-.05(2)(c) defines a significant variance as “at least a fifteen percent (15%) change between the amount of the current support order (not including any deviation amount) and the amount of the proposed presumptive support order.” Tenn. Comp. R. & Regs. § 1240-02-04-.05(3) sets forth the following procedure for determining whether a significant variance is present under the circumstances presented:

To determine if a modification is possible, a child support order shall first be calculated on the Child Support Worksheet using current evidence of the parties’ circumstances. . . . If the current child support order was calculated using the income shares guidelines, compare the presumptive child support order amounts in the current and proposed orders. . . . If a significant variance exists between the two amounts, such a variance would justify the modification of a child support order unless, in situations where a downward modification is sought, the obligor is willfully and voluntarily unemployed or underemployed, or except as otherwise restricted by paragraph (5) below or 1240-2-4-.04(10) above.

After reviewing the record, the Court commented:

The court increased Mother’s child support obligation from $364.00 to $396.00 per month; in so doing the court found that Mother was voluntarily underemployed and imputed income of $34.00 per hour for a 36 hour work week, leading to an annual income of $63,648.88. Mother contends that the finding that she was willfully underemployed is erroneous; she also contends that, even with the imputed income, the court erred in increasing her obligation because there was not a significant variance between her then-existing child support obligation and that increased amount….

We agree with Mother that her increased child support obligation, given the increased income imputed to her, does not exceed 15% of the original obligation and does not constitute a significant variance. Consequently, her child support obligation should not have been modified and that portion of the order must be reversed.

Accordingly, the modification of Mother’s child support obligation was reversed.

McFarland v. Bass (Tennessee Court of Appeals, Middle Section, June 30, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Knoxville divorceFacts: The parties divorced after 32 years of marriage. They survived mostly on substantial passive income from minority interests in several family businesses Husband inherited. Wife argued these entities, inherited from Husband’s parents, were marital property rather than Husband’s separate property. In pursuit of this theory, Wife engaged multiple consulting expert witnesses. By the time the case came to trial, Wife was represented by her seventh lawyer. On appeal, she was represented by her eighth attorney.

Wife’s seven successive trial attorneys served repeated volleys of discovery seeking evidence to support Wife’s claims that the business entities inherited from Husband’s parents were marital assets. Although Husband and his family produced well over 20,000 pages of documents, signed releases for what often amounted to antiquated information such as bank records or tax returns, and allowed Wife’s experts at least two opportunities for extensive document reviews in Arkansas (where the business entities were located), Wife remained unsatisfied with the quality and quantity of discovery she received.

Wife filed five motions to compel discovery, eight motions for either civil contempt or sanctions, and one motion to reconsider sanctions for discovery non-compliance. Although each of Wife’s motions for sanctions or for contempt were denied, the trial court in the parties devoted tremendous resources to accommodating Wife’s endless discovery requests.

Wife switched consulting forensic experts within weeks of trial and then failed to properly disclose any experts to testify regarding the voluminous documents produced by Husband. Her efforts to salvage the situation with complete disclosure was too little too late, as the trial court granted Husband’s motion to exclude her experts.

The case was tried over five days. Without experts, Wife had to rely exclusively on lay testimony and her own estimates for valuation.

The trial court classified the interest in the family businesses as Husband’s separate property, equally divided the marital estate, and awarded Wife rehabilitative alimony for 10 years. Husband was awarded $100,000 as sanctions for Wife’s repeated abuses of the discovery process engendered by Wife’s employment of seven attorneys, her demands for continuances or necessitating continuances, and her relentless pursuit of meritless motions for sanctions and for contempt.

Wife appealed numerous issues, all of which were affirmed on appeal. The only issue worth noting, in my opinion, is the $100,000 award for sanctions.

On Appeal: The Court of Appeals affirmed the trial court.

Wife argued her discovery requests and motions had merit such that the trial court abused its discretion in awarding Husband $100,000 as discovery sanctions.

Rule 37.02 of the Tennessee Rules of Civil Procedure provides a broad but not exclusive list of sanctions available to a trial court when a party fails to obey an order compelling discovery. By its plain language, the provisions of Rule 37.02 primarily apply to sanctions for non-compliance with a court order. However, trial courts also possess the inherent authority to order sanctions as necessary to prevent abuse of the discovery process.

The discovery rules would be ineffectual if courts did not have the authority to impose sanctions for their abuse. Thus, the Tennessee Rules of Civil Procedure authorize serious sanctions against persons who seek to evade or thwart full and candid discovery, including being found in contempt, having been found in contempt, having designated facts be taken as established, striking pleadings, dismissing an action or claim or granting judgment by default, or assessing expenses and attorney’s fees.

These sanctions serve a three-fold purpose: (1) to secure a party’s compliance with the discovery rules, (2) to deter other litigants from violating the discovery rules, and (3) to punish parties who violate the discovery rules.

After reviewing the record, the Court wrote:

[T]he litigation of this matter was quite protracted. Wife engaged in a plethora of intentional or unintentional delay tactics by asking for at least five continuances of the trial; she was represented by seven successive attorneys in the trial court who served four sets of interrogatories, five sets of requests for production, and an amended set of interrogatories and requests for production, with the latter being quashed and the fifth request for production held in abeyance after Husband filed a motion for protective order….

Wife filed no less than five motions to compel, eight motions for either civil contempt or sanctions and one motion to reconsider sanctions, all of which were denied…. Wife repeatedly asked for the same relief even when Husband was clearly acting in good faith in complying with the court’s orders….

The trial court possessed the authority to impose sanctions against Wife pursuant to Rule 37 as well as under the umbrella of its “inherent powers,” and while reasonable minds can differ as to the monetary award of $100,000, we find no abuse of discretion in the award of monetary sanctions for abuse of discovery in this case.

Accordingly, the trial court’s award of sanctions for discovery abuse was affirmed.

Berg v. Berg (Tennessee Court of Appeals, Middle Section, June 25, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: K.O. Herston | August 15, 2014

Photo of the Week: Smoky Mountain Cub

Smoky Mountain Cub

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Facts: At mediation, Husband and Wife settled their case and agreed to the terms of a marital dissolution agreement (“MDA”).

The alimony provision of the MDA provides:

The Husband agrees to pay to the Wife as alimony in futuro the sum of two thousand ($2,000.00) dollars per month, until the Wife dies or remarries, until the Husband dies, or until a third person not the Wife’s child, moves into the Wife’s residence. The amount shall further be reduced by payments received by Wife from either retirement plan and/or Social Security payments.

Knoxville divorceNearly three years later, Husband petitioned to terminate the alimony obligation. Husband alleged Wife’s mother had moved into Wife’s residence after her husband — Wife’s father — passed away and, therefore, Husband’s alimony obligation must be terminated consistent with the agreed terms of the MDA.

The trial court found Wife’s mother had indeed moved in with Wife with the intent to live there for at least several months. For example, Wife’s mother notified the post office of a permanent change of address to Wife’s home.

The trial court terminated Husband’s alimony obligation, noting “while this may be a harsh result, the MDA contained a contractual condition that only the children of [Wife] could move in with her without her forfeiting the alimony in futuro to which the [Husband] had agreed subject to the specific conditions listed.”

Husband was also awarded a judgment for $34,000 for the overpayment of alimony retroactive to the date his petition was filed. Husband was also awarded attorney’s fees of approximately $10,000 pursuant to the MDA.

Wife appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Alimony in futuro is governed by Tennessee Code § 36-5-121(f)(1), which provides that in all cases way person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption exists that the third person is either contributing to the support of the alimony recipient or is receiving support from the alimony recipient such that the alimony recipient no longer needs the amount of support previously awarded.

Relying on Tennessee Code § 36-5-121(f)(1), Wife argued the trial court should have applied the rebuttable presumption created therein. Because Wife’s mother provided no support to Wife’s household, Wife argued her alimony in futuro should not have been terminated based upon Wife’s mother living with her.

It is well settled that an MDA is contractual in nature and is binding between the parties. Therefore, the interpretation of the MDA is subject to the rules governing construction of contracts. Tennessee courts recognize an MDA as a binding contract on the parties such that their contractual rights vest upon the execution of the MDA. When the language of the MDA is plain and unambiguous, courts are to determine the intent of the parties from the four corners of the contract and enforce its plain terms as written.

After reviewing the record, the Court found as follows:

[T]he parties chose to include, in their MDA, a suspensory condition, i.e., a condition precedent that suspends the operation of a contractual promise [in this case, Husband's promise to pay alimony]. The language used, i.e., “until a third person not the Wife’s child, moves into the Wife’s residence,” is not ambiguous, and the parties’ choice to use this language in their agreement binds them to it….

Wife’s mother’s stay at Wife’s residence was clearly not simply a visit: Wife’s mother changed her permanent address to Wife’s address and moved not only her clothes, but also some of her furniture to Wife’s residence. Thus, the fact that Wife’s mother eventually moved out of her home after the filing of this lawsuit, and the question of whether Wife’s mother provided any financial support to Wife are both irrelevant to the question of whether the suspensory condition occurred. From the totality of the circumstances, and the record as a whole, we cannot conclude that the evidence preponderates against the trial court’s finding that Wife’s mother did, in fact, move into Wife’s home. Accordingly, the suspensory condition was triggered and the trial court did not err in relieving Husband of his obligation to pay alimony in futuro.

The Court also affirmed the trial court’s ruling on attorney’s fees, noting it was required by a standard enforcement provision in the MDA that provided if a party was successful in a post-divorce action to enforce the MDA, that party “shall” be entitled to a judgment for reasonable attorney’s fees and expenses.

Accordingly, the trial court’s judgment was affirmed.

Myrick v. Myrick (Tennessee Court of Appeals, Middle Section, June 19, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: K.O. Herston | August 13, 2014

Divorce Advice: Moving On After Divorce

Moving On After Divorce

Protect your good name. It is your most valuable asset. To do so, you must be concerned to some degree about what others think.

Take charge of your attitude. Be positive and do not waste your time blaming yourself or others.

Knoxville divorceBad times do not last forever. Make peace with the past. Learn from your mistakes and turn them into opportunities for positive change.

Learn to forgive yourself and your ex-spouse.

Be a little kinder than necessary. Kindness to others will lift your spirits.

Never be afraid to apologize. Apologizing is a sign of strength, not weakness.

Learn to disagree without being disagreeable. Take control of your life and set appropriate boundaries with your ex-spouse.

Family and friends do not last forever. Never miss an opportunity to tell them how much they mean to you.

Value your friends. Rekindle friendships you have lost.

Time can heal. Scars will remain. Do not be ashamed of them.

Never underestimate the power of words and actions to heal relationships.

Never give up on those who have disappointed you. Life is full of surprises.

It is best to create in your children’s mind a positive image of yourself and your ex-spouse.

Remember that life’s most treasured moments are always centered on relationships, not things.

Live your life such that when your family and friends think of fairness, honesty and integrity, they think of you.

If you want to discuss your situation with one of the divorce and family law attorneys at Herston Law Group, please click here to contact us for a consultation.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: K.O. Herston | August 12, 2014

Divorce Advice: Alimony

Alimony

Alimony is a form of spousal support that is based on the relative financial needs and income of the parties. Tennessee has statutes that list the factors a court must consider when awarding alimony. Ask your lawyer to explain the various types of alimony and which ones, if any, may be appropriate in your case. Tennessee recognizes these four types of alimony:

Rehabilitative Alimony: temporary payments to enable a financially disadvantaged spouse an opportunity to become financially self-sufficient;

Transitional Alimony: temporary payments to enable a financially disadvantaged spouse to adjust to the financial consequences of a divorce;

Alimony in Futuro: long-term payments for a spouse who is unable to achieve financial self-sufficiency; and

Alimony in Solido: a definite amount of support that is payable in one lump sum or paid in payments for a definite period of time.

Knoxville divorceAsk your lawyer how much alimony you may get and how long it will last. Find out about the tax consequences for each type of alimony.

Ask your lawyer whether alimony can be modified either before or after the divorce. In Tennessee, final court orders for alimony may be modified only by proving a substantial and material change in circumstances occurring since the last court order.

Living with someone after the divorce, even if you are not romantically involved, may cause your alimony to be stopped or reduced. If an alimony recipient remarries, then the spousal support stops in most cases. Ask your lawyer about your specific situation.

If you want to discuss your situation with one of the divorce and family law attorneys at Herston Law Group, please click here to contact us for a consultation.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: K.O. Herston | August 11, 2014

Divorce Advice: Dividing Assets and Liabilities

Dividing Assets and Liabilities

Most assets acquired by the parties during the marriage are considered joint or marital property. Likewise, most debts incurred during the marriage are considered joint obligations. Assets received as gifts, inheritance, or assets owned by the parties before the marriage are typically considered that spouse’s separate property.

Knoxville divorceTennessee has statutes that define what assets are considered marital or separate property. Ask your lawyer to explain what factors the court will consider when determining whether an asset is marital or separate property.

Tennessee also has statutes that control the division of assets and debts. In a marriage of long duration, Tennessee courts start with the presumption that an equitable division of marital property is an equal division. This presumption can be rebutted. Ask your lawyer to explain to you the factors the court will consider when dividing assets and debts.

Be cautious when making an agreement that your spouse must pay any jointly-titled debts, especially if he or she is financially irresponsible. With jointly-titled debt, the creditor can sue either party for the unpaid debt. Your creditors could not care less about your agreement about who must pay a debt. A creditor will come after whoever they believe can pay the debt.

You are responsible for paying all of your attorney’s fees unless agreed to by the parties or ordered by the court. A judge may order one party to pay all or part of his or her spouse’s attorney’s fees. This is a discretionary decision for the court.

If you want to discuss your situation with one of the divorce and family law attorneys at Herston Law Group, please click here to contact us for a consultation.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: K.O. Herston | August 8, 2014

Divorce Advice: Mediation in Divorce Cases

Mediation in Tennessee Divorce Cases

Mediation is an out-of-court meeting where spouses and lawyers meet with a mediator to try and settle all issues of the divorce. The mediator is typically an experienced family law attorney who acts as a neutral third party.

Mediation has revolutionized family law. Divorce and child custody cases are settled in mediation with increasing frequency. The latest data shows between 90-95% of family law disputes in Tennessee are settled before trial. Mediation is ordered by Tennessee courts in nearly all family law cases.

Knoxville divorceMediation dramatically reduces the costs and time necessary to settle your case. The process is considerably less contentious than a trial. Settling a case in mediation can also help decrease the hostility between spouses. This is particularly beneficial if children are involved. Cases settled through mediation are less likely to be taken back to court after the divorce, and the parties are more likely to be satisfied with the results.

If mediation is successful, the spouses agree on a property settlement and/or parenting plan that meets their unique needs. Both parties control the terms of the settlement in mediation, unlike a court battle in which they lose all control over the final outcome.

In most family law mediations, the parties stay in separate rooms with their lawyers and the mediator goes back and forth negotiating with the lawyers and their clients. The mediator may also meet with the attorneys alone. The mediator is actively involved in reaching a settlement, makes recommendations based on the evaluation of the parties’ positions, and sometimes advises the parties how the court is likely to rule.

Before the mediation, your lawyer should prepare a written mediation statement that sets forth the strengths and weaknesses of your case. You and your lawyer should also discuss what, if any, evidence provided to the mediator should be shared with your spouse and his or her attorney. You do not always want to educate the other side about the strengths or weaknesses of your case if the mediation is unsuccessful.

All communications, records, documents and reports produced during mediation are confidential and privileged. This means the parties, the attorneys and the mediator cannot disclose the evidence used in mediation except under narrow circumstances. This encourages the parties to fully disclose any sensitive information to the mediator in an effort to help settle the case.

You must approach mediation with an open mind and a willingness to compromise. Good faith on the part of both sides is essential to a successful mediation. Every case has the potential for settlement, so do not assume your case will not settle. Experienced family law attorneys are often pleasantly surprised when cases they thought had a low probability of settlement end up settling at mediation.

When children are involved, parents must always honor their children by placing their best interests first. Love your children more than you dislike your spouse, and put what is important for them ahead of any personal animosity.

Avoid fights over insignificant issues. Do you really want something, or are you just try and keep your spouse from getting it? Remember to pick your battles wisely. Ask yourself if whatever you are fighting over is really worth going to court.

You will need to decide what your “walking away” point is. This occurs when you decide you would rather go to court then take your spouse’s last offer. Your “walking away” point is sometimes revised as the negotiation progresses.

Do not expect to leave mediation with everything you wanted or in a good mood. Settlement requires compromise by both sides. Keep in mind that a successful mediation is almost always a lot less costly — in time, money and heartache — than a battle in open court.

If you are fortunate enough to settle some or all of your issues, the lawyers must draft a written settlement agreement that will be signed by all the parties and attorneys. Most courts will enforce a signed written settlement agreement even if a party tries to back out of the deal after the agreement is signed.

If you want to discuss your situation with one of the divorce and family law attorneys at Herston Law Group, please click here to contact us for a consultation.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Understanding the Discovery Process in Divorce Litigation

“Discovery” is the process through which you and your lawyer uncover the facts and documents necessary to conclude your divorce. This process involves Interrogatories, Requests for Production of Documents, Requests for Admissions, and depositions.

Knoxville DivorceInterrogatories and Requests for Production of Documents are series of written questions and requests for various documents (usually financial documents) sent or received by your lawyer seeking information about the facts of your case. Each party typically has 30 days to answer the other spouse’s Interrogatories and Requests for Production of Documents. Your lawyer and his or her staff will likely help you prepare your answers.

Interrogatories are always answered under oath. Your answers must be truthful. There is no excuse for a failure to tell the truth. Carefully review every word of your answers. Proofread, proofread and proofread again! Every word of your answers may be used against you if they are inaccurate or untrue.

If you and your lawyer cooperate with your spouse’s lawyer and provide full and complete disclosures, you will speed up the resolution of the case and keep the cost down. If you and your lawyer intentionally delay responding to your spouse’s discovery requests, you will quickly create distrust, which will make your case more difficult and expensive to resolve.

Requests for Admissions are a series of written questions that ask a spouse to admit the truth of certain facts. The spouse must respond in writing to all Requests for Admissions within 30 days of receipt. If you fail to respond to the Requests for Admissions within 30 days, then the court may rule the factual allegations are true even if they are not. If you deny that a fact is true and your spouse’s lawyer later proves that fact to be true, you may have to pay your spouse’s attorney’s fees for the time required to prove the fact.

A deposition is a formal proceeding, transcribed by a court reporter, they usually takes place in a lawyer’s office where spouses or witnesses 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 imperative 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 her spouse’s lawyer that you will be a sympathetic, likable and credible witness in court. You may get a better settlement offer if your spouse’s lawyer believes you will make a good impression at trial.

It is important to prepare 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. Pay particular attention to all documents personally signed under oath by you or your spouse.

Be ready to answer all questions truthfully. Every word you say during a deposition may be used against you at trial. Your story may be difficult, embarrassing and 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, especially in the eyes of the judge. If you realize you made a mistake or one of your answers is inaccurate, correct your answer immediately.

You do not have to tell the whole story in a deposition so do not 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 or 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. Never just blurt out an answer.

Answer the 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. 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 or threaten your spouse’s attorney. Your lawyer will protect you from improper questioning.

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 want to discuss your situation with one of the divorce and family law attorneys at Herston Law Group, please click here to contact us for a consultation.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

Posted by: K.O. Herston | August 6, 2014

Divorce Advice: Working With Your Divorce Lawyer

How to Work With Your Divorce Lawyer

Divorce lawyers understand that people are not at their best during the pressure, stress and anxiety of divorce. Your lawyer is there to keep your case on track, guide you through the process, and make the experience as painless as possible.

Your lawyer should tell you the truth about your case and let you know when your expectations are unrealistic. Listen to your attorney and pay attention to his or her advice, even when it is not what you want to hear.

Knoxville divorceYour lawyer cannot work miracles. He or she can only operate with the facts you provide. Always tell your lawyer the whole story — the good, the bad and the ugly. In a divorce case, nobody likes surprises. To avoid being blindsided, give your lawyer all the details from the very beginning. Hiding information can cause serious problems down the road.

Be courteous to your attorney’s receptionist, paralegal, legal assistant, and other staff members. Your lawyer’s staff is working for your benefit. If you have a complaint, confide it to your lawyer.

Remember that you are not your lawyer’s only client. Lawyers must spend a considerable part of each day in meetings, on the telephone, responding to emails and correspondence, and working on other cases.

Make sure you have a legitimate reason to call your lawyer. Do not call just to “chit chat.” He or she will bill you.

Make a list of questions before you call your lawyer. Keep your emails brief and to the point. Most lawyers will bill you for every meeting, phone call and email. Your lawyer’s time is your money. Use it wisely.

Promptly return your lawyer’s phone calls and respond to his or her letters and emails.

Good lawyers return phone calls in a timely manner. If your lawyer repeatedly fails to return your calls, find out why. Call his or her legal assistant and schedule a telephone conference or meeting. If any problem develops between you and your lawyer, discuss it with him or her immediately. If the problem persists, consider hiring a different lawyer.

Spouses often dislike their spouse’s lawyer. Do not let your spouse’s feelings about your lawyer affect your opinions.

Pay your attorney’s bills on time. Remember that your lawyer has staff members to pay and they cannot do their best work for you if they are worrying about their next paycheck.

You need to gather the following documents and make copies for your lawyer: prenuptial and postnuptial agreements; federal and state personal, corporate, and partnership tax returns; loan applications and financial statements; mortgage documents; real estate appraisals; employment records; partnership and corporate agreements; bank account statements and copies of canceled checks; credit card statements; retirement and investment account statements; inheritance and trust documents; documents regarding debts; and proof of misconduct by your spouse, including letters, videos, computer hard drives, emails, text messages and photographs.

Prepare and maintain a detailed factual history of your marriage, including the good events and the bad. The history should also contain issues regarding you and your spouse including adultery, gambling, alcohol/drug use and abuse, pornography, physical and emotional abuse, discipline, disabilities, neglect and involvement in the children’s lives.

You should gather copies of information documenting your involvement with the children, including medical records, school records and daycare records. Your marital history should also contain dates of significant events in the care of your children, including daily routines, trips to the doctor and dentist, school activities, sports activities and extracurricular activities. Gather all photos and videos of you and the children that show you are a good parent.

The attorney-client privilege requires your lawyer to keep all of your communications confidential except under limited circumstances. If you disclose information protected by this privilege to anyone else, it may destroy the confidentiality of the information. When it comes to divorce, it is best to remain silent. Watch what you say and be extremely careful about confiding details of your case to anyone. Even your closest family members and friends can slip up and accidentally reveal something that could hurt your case. Never mention anything about your spouse or the divorce on the Internet or social networks such as Facebook or Twitter. This is your private family business. Keep it that way.

Never call your spouse’s lawyer even if an emergency occurs. Your spouse’s lawyer is not working for you. Should your spouse’s attorney call you, tell him or her to contact your lawyer. It is unethical for your spouse’s attorney to talk to you if you are represented by a lawyer.

Ask your lawyer before you close joint bank accounts or joint credit card accounts. Also ask your lawyer before you withdraw funds from a joint checking account, savings account or brokerage account.

Never hide assets. They are overwhelmingly likely to eventually show up.

If you want to discuss your situation with one of the divorce and family law attorneys at Herston Law Group, please click here to contact us for a consultation.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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