Knoxville child custody lawyersFacts: Mother and Father, parents of three children, were divorced in 2009. Mother was designated the primary residential parent at the time of divorce. Father was awarded 159 days of parenting time.

Later, Mother was permitted to relocate to Texas with the children. This relocation required the development of a new parenting schedule.

After a hearing, Father was awarded the following parenting time: fall vacations on even-numbered years; half of the two weeks for Christmas vacation; five weeks in the summer and every spring vacation; and holiday time, but — curiously — not weekends that adjoined the holidays. This resulted in a reduction in Father’s annual parenting time from 159 days to 57 days.

Father appealed.

On Appeal: The Court of Appeals modified the trial court’s judgment.

Father sought parenting time on weekends adjacent to his holiday parenting time. He argued the children’s best interests are not served by the omission of his weekend time or weekends connected to holidays awarded to him.

When a parent relocates, Tennessee courts have the power to change the existing parenting plan to fit the new circumstances of the parties and their children. Courts typically make changes necessary to fit the practicalities of the new living arrangements of the children.

Because decisions regarding parenting arrangements are factually driven and require careful consideration of numerous factors, trial judges, who have the opportunity to observe the witnesses and make credibility determinations, are better positioned to evaluate the facts than appellate judges. Thus, determining the details of parenting plans is within the broad discretion of the trial judge. It is not the function of appellate courts to tweak a residential parenting schedule in the hopes of achieving a more reasonable result than the trial court. A trial court’s decision regarding the details of a residential parenting schedule is not supposed to be reversed absent an abuse of discretion.

After reviewing the record, the Court modified the trial court’s ruling, stating:

Mindful of our Supreme Court’s directive that we are not to tweak or micro-manage the plans entered by trial courts in these matters, we nevertheless find logic in [Father's] request. Specifically, we find that attaching weekends to those adjacent holidays awarded to [Father] is a logical common sense accommodation that is in the best interest of the Children. This relatively minor alteration does not undermine the essence of the plan while giving the Children more time with [Father]. We remand this case to the Trial Court to modify parenting time so as to give [Father] the weekends adjacent to those holidays awarded to [Father].

Accordingly, the trial court’s judgment was modified.

Mubashir v. Mahmood (Tennessee Court of Appeals, Eastern Section, February 19, 2014).

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

Facts: Child was born when Mother and Father were teenagers in high school. Mother and Child lived with Mother’s parents after Child was born, and Father lived with his parents. They never sought the court’s assistance with setting child support or visitation.

Father was a regular presence in Child’s life for the first three years, with Child spending the night at his house on occasion.

In Child’s fourth year, Mother began dating Stepfather. Mother also began restricting Father’s access to Child around this time. When Father would ask for Child to stay at his home, Mother would refuse. When Father suggested establishing a parenting plan that would provide Father with regular visitation with Child, Mother refused to discuss it.

Eventually, the only way Father was able to see Child was at Child’s soccer games, about which Mother eventually refused to give Father any information.

Mother and Stepfather were married a few years later. One month later, they petitioned to terminate Father’s parental rights and have Stepfather adopt Child.

After a trial, the trial court terminated Father’s parental rights. Father appealed.

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

Persons seeking to terminate another’s parental rights must prove two things by clear and convincing evidence. Tennessee Code Annotated § 36-1-113(c) requires that termination of parental rights must be based upon: (1) A finding by the court that the grounds for termination of parental rights have been established; and (2) that termination of the parent’s rights is in the best interests of the child.

The best interests analysis is separate from and subsequent to the determination that there is clear and convincing evidence of grounds for termination. The existence of a ground does not inexorably lead to the conclusion that termination of a parent’s rights is in the best interest of the child. It is a separate analysis.

In conducting a best interest analysis, the focus is on what is best for the child, not what is best for either parent.

After reviewing the record, the Court reversed, finding:

No evidence was introduced that Father’s home is unsafe or detrimental to Child in any way, or that Father or his lifestyle presents any danger to Child. However, the test here is not which residential placement would be better for Child. As our Supreme Court has written, a father’s constitutional right to parent his child “may not be forfeited in a balancing test or to another man who may appear to be a more ideal father.”

This is not a comparison between living with Mother and Stepfather, on one hand, and living with Father, on the other. Instead, the question is whether Child’s best interests are served by termination of Father’s parental rights, thereby reducing Father to the role of a complete stranger and “severing forever all legal rights and obligations” of Father. We find no evidence that having Father involved in Child’s life, in addition to Stepfather, would be contrary to Child’s best interests….

Father acknowledges that Child is happy and thriving in Mother and Stepfather’s home. Father just wants the opportunity to spend time with his son and develop a relationship with him. We also recognize that Stepfather has provided Child with love, support, and a stable environment. We assume that will continue, whether Father is involved in Child’s life or not.

In reviewing the evidence introduced at trial, we find that Stepfather has failed to carry his burden of proving by clear and convincing evidence that terminating Father’s parental rights is in the best interest of Child.

Accordingly, the trial court was reversed, and Father’s parental rights were restored.

K.O.’s Comment: This case illustrates how the best interest analysis in a comparative fitness case between two parents is fundamentally different from the best interest analysis in a termination of parental rights case.

In re William T.H. (Tennessee Court of Appeals, Middle Section, February 18, 2014).

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

Facts: When the parties settled their divorce case, they executed a marital dissolution agreement (“MDA”) that provided in relevant part:

As a division of marital property, the husband will pay to the wife the sum of $115,000.00, which shall be paid from his retirement account…. The parties agree that wife shall receive the total sum of one hundred fifteen thousand dollars ($115,000.00) from said 401(k) account, pursuant to the terms of a qualified domestic relations order (QDRO).

Shortly thereafter, a Qualified Domestic Relations Order (“QDRO”) approved by both parties was filed with the trial court. The QDRO provided that Wife “will be required to pay the appropriate federal, state, and local income taxes” on any distribution to her.

When Wife attempted to receive her $115,000 from Husband’s 401(k), she was advised by the plan administrator that she would be responsible for the payment of penalties and taxes on the distribution, which would reduce the $115,000 to approximately $90,000.

Wife asked the trial court to enforce the provision in the MDA requiring the transfer of $115,000 “as a division of marital property.”

The trial court ruled that Wife was to receive $115,000 in order to equalize the division of property. It is further noted that Husband “was merely afforded an opportunity to pay [the equalizing amount] out of his retirement account.” Thus, the trial court ruled that Wife should receive the net payment of $115,000 without any reduction for taxes or penalties.

Husband appealed.

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

Wife argued that the phrase “[a]s a division of marital property” suggests an intent that her $115,000 award not be subject to reduction through taxation. Because the QDRO subjects her award to reduction, a conflict exists, and, therefore, Wife argued the QDRO must be disregarded.

In Tennessee, an MDA incorporated into a final decree of divorce is a contract which is binding on the parties and as such it is subject to the rules governing construction of contracts. When resolving disputes concerning contract interpretation, the court is to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the contractual language. This interpretation is not possible where ambiguity exists with regard to material terms; however, ambiguity does not arise in a contract merely because the parties may differ as to interpretations of certain of its provisions. A contract is ambiguous only when it is of uncertain meaning and may fairly be understood in more ways than one.

After reviewing the record, the Court commented:

Although the MDA, itself, did not expressly state that Wife would be responsible for paying taxes on any distribution from Husband’s 401(k) account, the converse — that Wife would not be responsible for the payment of taxes — likewise, was not expressed. Wife has cited no authority, nor have we found any, to support her apparent assertion that an award made as a “division of marital property” is necessarily not subject to reduction through taxation. The MDA did not apportion any tax consequences resulting from distributions from Husband’s retirement account. Instead, it expressly provided that Wife’s award would be made “pursuant to the terms of a qualified domestic relations order (QDRO)” and such QDRO was contemporaneously entered with the Final Judgment to provide the missing details. Pursuant to the unambiguous terms of the QDRO, Wife is “required to pay the appropriate federal, state, and local income taxes” on distributions from Husband’s 401(k) account.

Accordingly, the trial court was reversed.

Macy v. Macy (Tennessee Court of Appeals, Middle Section, February 11, 2014).

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

Knoxville divorce lawyersFacts: After a two-year marriage that produced few assets and no children, Wife — a Tennessee lawyer representing herself in the divorce — requested that the trial judge recuse himself from the case. The trial court denied the motion.

Wife appealed.

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

Wife argued that the trial court should have recused itself because of adverse rulings made against her and statements made in court that she characterized as “personal attacks” against her. She also accused the trial court of “gender bias” based, in part, on the trial judge’s comment that a dog “is a man’s best friend” during a dispute over the timely return of a dog to Husband.

It is of primary importance that a litigant’s case be decided by an impartial and unbiased court. The Tennessee Supreme Court has acknowledged that one of the core tenets of our jurisprudence is that litigants have a right to have their cases heard by fair and impartial judges. Accordingly, judges must conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and must not be swayed by partisan interests, public clamor, or fear of criticism.

The question of recusal on the basis of bias frequently involves two different inquiries. The first is whether the judge has actual bias; the second is whether his or her “impartiality might reasonably be questioned,” i.e., whether there is an appearance of bias.

Since the appearance of bias is as injurious to the integrity of the judicial system as actual bias, the test for determining whether a judge’s impartiality might reasonably be questioned is an objective one. The test for determining whether an appearance of impartiality exists is whether a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.

Thus, even when a judge believes that he or she can hear a case fairly and impartially, the judge should grant a motion to recuse if a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.

Generally, in order to justify recusal, any alleged bias must arise from extrajudicial sources and not from events or observations during litigation of a case. If the bias is alleged to stem from events occurring in the course of the litigation of the case, the party seeking recusal has a greater burden to show bias that would require recusal, i.e., that the bias is so pervasive that it is sufficient to deny the litigant a fair trial.

The law in Tennessee is well settled that adverse rulings by a trial court are not usually sufficient grounds to establish bias. Further, opinions of a judge based upon events that occur during the litigation of a case are not extrajudicial and do not arise from outside or from personal bias. Consequently, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. If the law were otherwise, recusal would be required as a matter of course since courts necessarily rule against parties and witnesses in every case, and litigants could manipulate the impartiality issue for strategic advantage, which the courts frown upon.

A judge’s bias against an attorney, based upon occurrences during litigation, may warrant disqualification only where hostility or bias is so pervasive that it is sufficient to deny the litigant a fair trial. Any comments made by the trial court must be construed in the context of all the facts and circumstances to determine whether a reasonable person would construe those remarks as indicating partiality on the merits of the case.

After reviewing the record, the Court found:

While [Wife] accuses the judge of calling her names, we disagree with that characterization. Some of the statements involve advising her to consider retaining another lawyer to represent her in this divorce. As the trial court explained, it had some concern that she was too emotionally involved. While the court did refer to the old saying about a lawyer who represents herself, the court did not call [Wife] a “fool.” The judge did tell her in one instance that she was not thinking like a professional but was acting like a scorned litigant. Having reviewed all the comments cited by [Wife] in context, we do not agree that they were “personal attacks,” nor did they indicate bias or prejudice against her that would suggest cause for removal….

We find absolutely no evidence of a bias against [Wife] based upon her gender. In fact, given the “evidence” she cites in support of the allegation, we find her allegation to be outrageous. Without any reasonable foundation, she has attacked the motivation of the trial judge and accused him of a more general bias than just against her in this lawsuit. We have serious concerns regarding her conduct and admonish her, as a member of the bar, against making unfounded critical accusations regarding a judge.

Accordingly, the trial court’s ruling was affirmed.

McKenzie v. McKenzie (Tennessee Court of Appeals, Middle Section, February 11, 2014).

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

Knoxville child custody lawyersFacts: Mother and Father,the parents of three children, divorced after 13 years of marriage. When the divorce trial began, the parents announced their agreement regarding the continuation of the equal time, alternate-week schedule they followed while the divorce was pending. The only issues presented for trial were (1) which parent would be named the primary residential parent, and (2) which parent would maintain ultimate decision-making authority.

A psychologist who performed a custody evaluation testified that the current alternate-week arrangement was successful in that the children were happy, mentally healthy, and well-adjusted. The psychologist recommended continuation of the current co-parenting schedule despite the parents’ inability to agree on other matters. He acknowledged, however, that the parents’ inability to agree about “really anything” could cause problems in the future.

The trial court rejected the equal time arrangement advocated by both parents. Instead, it entered an order establishing Father as primary residential parent during the school year with Mother to enjoy co-parenting on alternating weekends. The order further stated that Mother would be primary residential parent during the summer with Father having the children on alternating weekends. The trial court commented:

I am not so much concerned about exact equality, as I [am about] the children having some sort of continuity of contact with each of the parents and to grow up knowing and being close to their mother and their father…. Given the high state of animosity between the parents, that in this case, it is better not to have the week on and the week off, but to split it up between the summer months and the school months.

The trial court went on to designate Father the primary residential parent during the school year with sole decision-making authority during that time, and Mother the primary residential parent during the summer with sole decision-making authority during that time. This resulted in 248 days for Father and 117 days for Mother each year.

Mother appealed.

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

In fashioning an appropriate, initial permanent parenting plan, the trial court must evaluate the comparative fitness of both parents by considering numerous statutory factors. For example, Tennessee Code Annotated §36-6-106 provides that when determining an appropriate custody arrangement, the trial court shall consider the following:

(1) The love, affection and emotional ties existing between the parents or caregivers and the child;
(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;
(3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; . . .
(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers. . .
(6) The home, school and community record of the child;
(7)(A) The reasonable preference of the child, if twelve (12) years of age or older;
(B) The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; . . .
(9) The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child; and
(10) Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order.

Similarly, Tennessee Code Annotated §36-6-404(b) provides that if the limitations of § 36-6-406 are not dispositive of the child’s residential schedule, the court shall consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;
(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;
(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;
(4) Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent’s lack of good faith in these proceedings;
(5) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
(6) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;
(7) The love, affection, and emotional ties existing between each parent and the child;
(8) The emotional needs and developmental level of the child;
(9) The character and physical and emotional fitness of each parent as it relates to each parent’s ability to parent or the welfare of the child;
(10) The child’s interaction and interrelationships with siblings and with significant adults, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;
(11) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
(12) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;
(13) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;
(14) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;
(15) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
(16) Any other factors deemed relevant by the court.

After considering the record, the Court reasoned:

The court found that the parents were unable to agree or cooperate on certain matters, noting that they “fight like dogs.” The court opined that the best way to arrange co-parenting in this case was “to have one parent have custody during the school year and the other parent to have custody during the summer months, and to have each of them have the decision making authority during that part of the year in which they have primary custody.” The court found that the alternate-week schedule would not be successful over an extended period because of the parental differences of opinion….

[W]e conclude that the trial court’s findings are supported by a preponderance of the evidence. Both parties admitted at trial that they disagreed on certain major decisions involving the Children, specifically which church and school the Children should attend.

Accordingly, the trial court was affirmed.

K.O.’s Comment: It is rare for a court to overrule the agreement of both parents as to what parenting arrangement is best for their children, even more so when that arrangement is also advocated by an evaluating psychologist. The last time we saw anything like this on this blog was the McCall v. McCall case. This underscores the risk parents take when they submit the details of their children’s upbringing for a court to determine. It is unfortunate for these children that their parents were unable to cooperate to such an extent that a court did not feel comfortable approving a parenting arrangement that both parents and a psychologist testified was in their children’s best interests.

Holmes v. Holmes (Tennessee Court of Appeals, Eastern Section, February 3, 2014).

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

Knoxville grandparent visitation lawyersThe Tennessee Bar Association just released the 2014 edition of The Legal Handbook for Tennessee Seniors.

In addition to important information about federal benefits programs, estate planning, online security and health care, the Handbook contains some information about family law issues relevant to senior citizens.

On page 174 of the Handbook, readers will find the following in a section called “Divorce Considerations for the Senior Adult”:

When an older person divorces, there are a myriad of special considerations not necessarily applicable to younger couples, as well as other factors unique to the marital relationship. The first step is to obtain a lawyer knowledgeable about divorce considerations for senior adults. When you meet with your lawyer, if you are overwrought or upset, it is also advisable to have a relative or friend accompany you to the lawyer’s office, but to preserve the attorney-client privilege, you alone should meet with a lawyer in private.

You should first discuss the fee arrangement to assure that you will be able to afford that particular lawyer. If you cannot afford the fee, you should contact your local legal aid office. You must be completely honest with your lawyer. You will need to know your monthly living expenses, the family income, all assets and how [they are] titled, whether there are any agreements between you and your spouse, existing medical insurance, whether there are Social Security or other retirement benefits and whether or not they are in pay status, and the names and status of all credit accounts, including utilities.

Starting on page 270 of the Handbook, readers will find the following information on grandparent visitation in a section called “Custody and Visitation Issues Relating to Grandchildren”:

The traditional thought is that grandchildren are one of the greatest joys any grandparent’s life. After all, you have the opportunity to spoil them and send them back home to their parents. Unfortunately, for some grandparents this storybook description does not apply. In some cases, parents are unwilling or unable to care for the children, and grandparents must try to step in for safety reasons. In other situations, grandparents and their own children develop problems in the relationship, and the children try to cut the grandparents out of the grandchildren’s lives.

A. Grandparents Rights with regard to Grandchildren

Just what are your rights as a grandparent in Tennessee? Tennessee does have laws in place which address the issue of grandparent rights, and grandparents may sometimes obtain court-ordered visitation with their grandchildren. (For purposes of the law, a grandparent is a biological grandparent, the spouse of a biological grandparent, or the parent of an adoptive parent.) The primary statutory law, which is what is passed by the Legislature, is found at TCA §§ 36-6-306 and 36-6-307. While there are rights provided by the statutes, it is important to understand that under the United States Constitution parents generally have the right to raise their children without anyone telling them how they should do it. Just because a grandparent or someone else might do a better job raising the children does not mean that they can interfere unless there is an actual danger to the child. There is also no absolute right for grandparents to be able to visit with their grandchildren. In short, the rights of grandparents are generally very limited.

Situations of Abuse or Neglect

We will first consider the issue of situations where your grandchildren may be abused or neglected in the custody of their parents. If you believe that your grandchildren’s parents are actually doing such a poor job parenting than that your grandchildren are not safe in their care, then you can consider filing a dependency and neglect action in the juvenile court in the county where your grandchildren reside seeking to be awarded temporary custody of them. If at all possible, you should retain a lawyer to assist you. In a dependency and neglect of matter, the parents of a child are appointed counsel if they cannot afford an attorney, and an attorney will be appointed to represent the best interest of the children (called a guardian ad litem), but grandparents are not entitled to have a lawyer appointed for them.

Grandparents may also consider contacting the Department of Children’s Services if they believe their grandchildren are in danger in their parents’ care. The toll-free number to use when reporting abuse or neglect which is occurring in Tennessee is at 1-877-237-0004. The Department cannot reveal who contacted them, so your identity will remain confidential. The Department will investigate the allegations made, and if they believe that your grandchildren are being abused or neglected, they will take court action to remove them from the parents’ home. The Department must first try to place the children with relatives, so you should make sure that the Department and the guardian ad litem know that you are willing to serve as a custodian for your grandchildren if they are taken from their parents. You should also attend all hearings and request the opportunity to attend all meetings held by the Department with the parents, if you want to be sure that your voice is heard. (You may not always be permitted to attend the meetings held by the Department but you should still make the request.) Again, if you can afford an attorney to assist you, it is generally best that you hire one.

B. Temporary Custody

Grandparents should also note that if they are granted temporary custody in cases of abuse or neglect, courts must generally work toward the goal of providing services to the parents, which will allow them to regain custody of their children at the earliest possible time. In situations where the parents do regain custody, the grandparents may then wish to seek grandparent visitation if satisfactory arrangements for contact cannot be worked out with the parents.

C. Grandparent’s Rights to Visitation or Custody

On the other hand, you may be in a situation where your grandchildren are not abused or neglected in the care of their parents but your relationship with your grandchildren’s parents has deteriorated to the point that they are trying to cut you out of your grandchildren’s lives. In that case, you might consider filing a petition for grandparent visitation in the circuit or chancery court in the county where your grandchildren reside. In some counties the general sessions court also has jurisdiction over these types of cases, and the clerk of court can tell you whether they do. Additionally, if the parents of your grandchildren were not married to one another, you may also file your petition in the juvenile court for the county where your grandchildren reside. If you can afford an attorney, is far better for you to hire one to assist you as the issue of grandparent visitation is a complex one.

The Handbook goes on to discuss Tennessee law on grandparent visitation in greater detail. You can find a free copy of The Legal Handbook for Tennessee Seniors here. It contains a lot of useful information for senior citizens. Many thanks to all the lawyers who generously volunteered their time to create this useful resource.

Source: The Legal Handbook for Tennessee Seniors (Tennessee Bar Association, February 2014).

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

Facts: After a 25-year marriage, the parties separated after Husband savagely assaulted Wife. Husband stabbed her multiple times, beat her head against a dresser, and set fire to their home with Wife inside. According to Wife, the attack was unprovoked and stemmed from Husband’s unfounded claim that she was having an affair.

As a result of the attack, Wife underwent surgery for a stab wound that perforated her heart. In addition, she sustained scarring of her chest and face. She required counseling for post-traumatic stress disorder. She suffered nightmares and panic attacks and found it difficult to go to work or otherwise function.

Husband was initially charged with multiple felonies. He entered into a plea agreement pursuant to which he was convicted of aggravated assault. He received a three-year sentence.

The trial court identified, valued, and divided the marital property such that Wife was awarded 82.8% of the marital assets and Husband was awarded 17.2%.

Wife appealed, arguing that she should have been awarded a larger portion of the marital estate for a variety of reasons, including Husband’s dissipation of the marital assets to pay his criminal defense attorney.

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

In a proceeding for divorce or legal separation, the trial court is authorized, prior to determining the support and maintenance of one party by the other, to “equitably divide, distribute or assign the marital property between the parties without regard to marital fault in proportions as the court deems just.” The trial court is empowered to do what is reasonable under the circumstances and has broad discretion in the equitable division of the marital estate. The division of assets is not a mechanical process and trial courts are afforded considerable discretion.

After reviewing the record, the Court reasoned:

By any calculation, Wife received the bulk of the limited marital assets. We think that the trial court implicitly considered and weighed various factors in Wife’s favor to achieve a property division that, while not equal was equitable. In support of its decision, the court stated, “if there was some pocket of cash out there . . . she certainly deserves it. But given what we have and the assets we have to divide, I think what we have done is appropriate under the circumstances.”

The trial court’s approach is fair and reasonable. The evidence does not preponderate against the trial court’s division of the marital estate for one very simple reason, i.e., Husband’s savage assault on Wife and the tragic and expensive aftermath, including Wife’s psychological and physical injuries, warrant a disproportionate share to her. While we have taken into account Husband’s assault on Wife, we do so — not as a matter of “fault” — but rather because of the impact of the assault on the marital estate. But having said all of this, we hold that Wife’s receipt of 82.8% of the marital assets is not against the preponderance of the evidence. We reject Wife’s argument that she is entitled to more.

Accordingly, the trial court’s division of marital property was affirmed.

Peterson v. Peterson (Tennessee Court of Appeals, Eastern Section, January 31, 2014).

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

Facts: Mother and Father are the parents of a child born out of wedlock. Following the birth of the child, the parties lived together for about six months and then separated.

Eight years later, when Mother and her boyfriend moved the child to Florida, Father petitioned to establish paternity. He also requested that he be named the primary residential parent such that the child would reside in Tennessee.

The trial court found that the child had been involved with and cared for by Father and his parents “on a regular and daily basis.” The trial court further found that it was in the child’s best interest “that she be in Tennessee with the family she has always lived around and who has cared for her on a daily basis since her birth.”

The trial court established a parenting plan that designated Mother as the primary residential parent so long as Mother resided in Tennessee. Father was awarded frequent parenting time.

Mother appealed the requirement that she remain in Tennessee as a condition of her designation as primary residential parent.

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

The procedure for establishing parentage and custody for a child born out of wedlock is governed by Tennessee Code Annotated § 36-2-311. Once the parentage of the child is established, parental access is to be determined pursuant to Chapter 6 of Title 36. In any proceeding between parents under the chapter, Tennessee Code Annotated § 36-6-106 provides that “the best interests of the child shall be standard by which the court determines and allocates the parties’ parental responsibilities.”

After reviewing the record, the Court concluded:

The evidence does not preponderate against the court’s findings of fact. The record contains ample evidence of the child’s meaningful relationship with Father and other family members who live in Tennessee, relationships which benefit the child and would be impaired by the child’s move to Florida. The evidence shows that Father and his parents have provided a safety net to Mother and the child, which is significant given the court’s finding of Mother’s instability—a finding that is also supported by the record.

Accordingly, the trial court’s requirement that Mother return to Tennessee with the child in order to be designated the primary residential parent was affirmed.

Graham v. Vaughn (Tennessee Court of Appeals, Middle Section, January 30, 2014).

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

Facts: Prior to the beginning of this 25 year marriage, Wife’s grandparents made her the beneficiary of a substantial trust fund. Throughout the marriage, Wife kept the trust assets in investment accounts titled solely in her name. Because of Wife’s considerable wealth, Wife was able to be a stay-at-home mother while Husband worked.

At various times during the marriage, Wife used money from her investment accounts to make down payments on real estate purchases that were titled to both parties.

After several days of trial, the trial court ruled that Wife’s trust assets were her separate property. Regarding the marital assets, the trial court divided those 75% to Husband and 25% to Wife.

Both parties appealed.

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

Property Classification. Husband argued the trust assets became marital property under the doctrines of transmutation and commingling.

In divorce proceedings, Tennessee courts have the authority to divide the marital property of the parties, but not each individual’s separate property. Thus, the trial court’s first task is to determine whether property is marital property or separate property. The court must give each party their separate property, then divide the marital property equitably.

Marital property” includes all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing. “Marital property” includes income from, and any increase in value during the marriage of, property determined to be separate property if each party substantially contributed to its preservation and appreciation.

Separate property” includes all real and personal property owned by a spouse before marriage, income from and appreciation of property owned by a spouse before marriage, and property acquired by a spouse at any time by gift or inheritance.

Separate property may become marital property through commingling of funds or the doctrine of transmutation. Separate property becomes marital property by commingling if inextricably mingled with marital property or with the separate property of the other spouse. If the separate property continues to be segregated or can be traced into its product, commingling does not occur. Transmutation occurs when separate property is treated in such a way as to give evidence of an intention that it become marital property.

After reviewing the record, the Court rejected Husband’s argument, reasoning:

Despite Husband’s contentions, we conclude that the record shows that Wife never intended to relinquish control over the Trust’s investment accounts. [The account administrator and trust officer for the accounts since before the marriage] stated in his deposition that whenever Husband called about transferring funds from the investment accounts, he asked whether Wife approved of the transfer. [The trust officer] testified that he would never transfer funds at the direction of Husband without Wife’s approval. Though Husband participated in discussions regarding investment of the Trust’s funds, [the trust officer] stated that he never acted on Husband’s investment advice. Throughout the marriage, the investment accounts were always titled solely in Wife’s name or the name of the Trust, even after the funds were transferred between banks. Perhaps most tellingly, Husband borrowed $20,000 from his mother in 2010 to purchase inventory for the antiques store. At that time, the current divorce proceedings had not begun. If Husband had unfettered access to the investment accounts, as he claims, such a loan would have been unnecessary.

Thus, the trial court’s classification of the trust assets as Wife’s separate property was affirmed.

Equitable Division. Wife argued the trial court failed to award her an equitable share of the marital assets.

The trial court valued the marital estate at $800,000. Of that amount, Husband was awarded $600,000, or 75%, and Wife was awarded $200,000, or 25%.

In a marriage of this duration, Tennessee law presumes that an equitable division is an equal division of the marital estate. That presumption can be rebutted, however.

After reviewing the record, the Court commented:

Though many of the factors indicate the Wife’s substantial contributions to the marriage justify a larger award of the marital assets, the trial court clearly weighed the parties’ substantial disparity in separate property heavily. Wife’s separate property, valued by the trial court in excess of $1,772,339, dwarfs the total value of the parties’ marital property. Additionally, the trial court found that Husband did not have any separate property. Though the value of the parties’ separate property was just one factor the trial court considered in making its decision, it cannot be denied that, in this particular case, it was especially significant. In light of the foregoing, the division of approximately seventy-five percent of the marital estate to Husband and twenty-five percent to Wife was within the trial court’s wide discretion. We therefore affirm the trial court’s equitable division of the marital assets.

Luttrell v. Luttrell (Tennessee Court of Appeals, Western Section, January 28, 2014).

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

Knoxville divorce lawyerFacts: Husband and Wife sought to conclude an agreed divorce after agreeing to a Marital Dissolution Agreement and Permanent Parenting Plan. With the parties ostensibly seeing eye to eye on the divorce, the divorce appeared to be moving smoothly forward.

However, a stumbling block emerged. Husband submitted a proposed Temporary Parenting Plan in an attempt to comply with local rules requiring the filing of such a plan in divorces involving minor children. The Temporary Parenting Plan proposed by Husband incorporated the Permanent Parenting Plan agreed on by the parties. The Trial Court did not deem this acceptable. In an order handwritten on the proposed Temporary Parenting Plan, the trial court stated: “Refused [sic] do not set for hearing until TPP filed.” The divorce action thus ground to a halt.

Husband applied for an extraordinary appeal, which request was granted by the Court of Appeals.

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

Trial courts are empowered to establish local rules governing the practice of law before that court. Tennessee Code Annotated § 16-2-511 provides:

Uniform rules of practice may be promulgated in each district by the judges of the district. The rules shall be consistent with the statutory law, the rules of the supreme court and the rules of criminal and civil procedure. The judges within a district may, by rule, designate courts or parts of a court that will be primarily responsible for hearing certain types of cases or cases dealing with certain areas of the law. Not less than thirty (30) days prior to the rules taking effect, copies of the rules shall be published and circulated to the practicing bar and filed with the administrative director of the courts.

In this case, the trial court had a local rule that required the filing of a Temporary Parenting Plan in every divorce involving minor children. No exception to this requirement existed in the local rules.

Husband argued that this local rule conflicted with the relevant statutory law.

The applicable Tennessee statute, Tennessee Code Annotated § 36-6-403, provides in part:

The court shall approve a temporary parenting plan as follows:
(1) If the parties can agree to a temporary parenting plan, no written temporary parenting plan is required to be entered; or. . . .

After reviewing the record, the Court concluded:

[Local] Rule 16, with its apparent blanket requirement for the filing of a Temporary Parenting Plan, contradicts Tenn. Code Ann. § 36-6-403 when the parties agree on a Temporary Parenting Plan. Rule 18(c) of the Rules of the Tennessee Supreme Court states that “any local rule that is inconsistent with a statute or a procedural rule promulgated by the Supreme Court shall be invalid.” Additionally, there is significant case law in Tennessee for the proposition that local rules may not conflict with statutory law….

Under circumstances such as those of this case, where the parties are in agreement, no Temporary Parenting Plan need be filed pursuant to Tenn. Code Ann. § 36-6-403. [Local] Rule 16 must yield to Tenn. Code Ann. § 36-6-403 and is invalid to the extent it conflicts with the statute. The Trial Court erred in not adhering to the statute.

The Court also concluded that the Temporary Parenting Plan submitted by Husband did not contain any defects sufficient to warrant the trial court’s refusal to accept it. Thus, the Court also concluded that Husband did comply with the local rules by submitting an appropriate Temporary Parenting Plan.

The trial court’s judgment was reversed and the matter remanded to the trial court with instructions “to proceed to conclusion.”

Smalling v. Smalling (Tennessee Court of Appeals, Eastern Section, January 24, 2014).

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

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

Divorces Rise As Economy Recovers

This article by Emily Alpert Reyes in the Los Angeles Times may be of interest to readers of this blog.

Divorces rise as economy recovers, study finds

Fewer couples split during the recession, but researchers say some may have been waiting until they could afford a costly legal step.

Married couples promise to stick together for better or worse. But as the economy started to rebound, so did the divorce rate.

Divorces plunged when the recession struck and slowly started to rise as the recovery began, according to a study to be published in Population Research and Policy Review.

From 2009 to 2011, about 150,000 fewer divorces occurred than would otherwise have been expected, University of Maryland sociologist Philip N. Cohen estimated. Across the country, the divorce rate among married women dropped from 2.09% to 1.95% from 2008 to 2009, then crept back up to 1.98% in both 2010 and 2011.

The National Marriage Project earlier dubbed the drop in divorce “a silver lining” to the Great Recession, arguing that tough times were pulling many husbands and wives closer together. But some couples may have simply put off divorce until they could afford to part, researchers say. The economic uptick may have finally given them the freedom to split.

“This is exactly what happened in the 1930s,” said Johns Hopkins University sociologist Andrew Cherlin. “The divorce rate dropped during the Great Depression not because people were happier with their marriages, but because they couldn’t afford to get divorced.”

Cohen cautioned that the exact reasons behind the economic ebb and flow of divorce were still murky. His study found that unemployment, state by state, had no apparent effect on divorce rates; other research examining earlier periods has found the opposite. Cohen did find that joblessness seemed to cut down divorce for college graduates — but statewide foreclosures pushed up divorce rates for the same group. More research is needed to understand why, he wrote.

“There still is a mystery,” Pew Research Center senior writer D’Vera Cohn wrote in an email to The Times. “It is enormously tempting to say that bad economic times made that happen, but this new paper concludes that the jury is still out.”

Whatever its roots, the phenomenon might seem puzzling in light of other research: Marriages end more often among Americans with less education and less income, other studies have shown. If money troubles put strain on marriages, why would couples break up more often when the economy is on the upswing?

Cherlin said downturns seemed to affect divorce timing, not whether couples divorced at all. While economic woes might sway a couple to put off divorce during a recession, spouses might not bother waiting if they don’t see their financial problems as temporary, he said.

In Los Angeles, far fewer people have sought divorces with Levitt & Quinn Family Law Center after the downturn, executive director Tai Glenn said. Even a “friendly” divorce with no complications costs $800 to $1,000 for clients with low incomes, she said. Any sparring in court pushes the price higher.

When unhappy husbands or wives stop into their offices to run through their options, “many, many people walk away simply based on the cost of the case,” Glenn said. “The people we see here are those that live on the margins, from paycheck to paycheck. For them, the recovery hasn’t really hit.”

Divorce lawyers say that in some cases, even divorced or soon-to-be-divorced couples have kept sharing a home to save money.

“They get to the point where they just can’t handle it anymore and file for divorce,” said Kendall L. Evans, a family law attorney based in Long Beach. “But that doesn’t mean they can afford to set up a separate household.”

UPDATE: The author of the study discussed in the article above, Philip N. Cohen, responded to the article with this post on his blog:

In yesterday’s LA Times story on my divorce paper, reporter Emily Alpert Reyes and her editors focused on the rebound, headlining it, “Divorces rise as economy recovers, study finds.” I had been focused on whether the drop from 2008 to 2009 could really be attributed to the recession. Their decision made good journalistic as well as analytical sense. (The story was re-written by the websites Daily Mail, PBS Newshour, and Huffington Post.)

So what does the increase say about the “silver linings” interpretation of the divorce trend? That was the idea, pitched by Brad Wilcox, that the drop he observed in 2008 from 2007 (using vital statistics data) reflected the fact that “many couples appear to be developing a new appreciation for the economic and social support that marriage can provide in tough times.” There was, and is, no evidence for this that I am aware of.

I think that the rebound in divorce undermines the silver linings theory. However, I can’t swear the theory is wrong. It hasn’t been tested.

But when I was Googling for stories on this yesterday I found this 2009 CBS news report, which accidentally illustrates the problem with silver linings. The story was called “Recession Bright Spot? Divorce Rate Drops.” It featured the Levines, in which the husband lost his job, and the marriage suddenly was in trouble (like a block building suddenly collapsing). Then, the couple pulls together, and it looks like they’re going to make it: “If they can get through this, they can get through just about anything.”

The story was a Wilcox plant, featuring him saying, “What we’re seeing is some people are postponing divorce because home values have dropped. For others, the recession has led to a new sense of togetherness.” (In my paper, incidentally, divorce was more common in states with higher foreclosure rates.)

And the reporter noted, as evidence, “There were almost 20,000 fewer divorces in 2008 than 2007.” As I noted at the time, divorce fell at least that much in most years, so that’s meaningless manipulation of reporters’ demographic ignorance by Wilcox. Anyway, that’s not the point. The point is, this couple was doing fine before the recession! So the recession caused him to lose his job, and then their marriage was in trouble, and then they pulled through. So how, exactly, was the recession reducing divorce?

And yet my analysis shows the recession probably did reduce divorce in the aggregate (just not in their case). My suspicion remains that the recession increased stress and conflict within marriages, like CBS’s couple. It probably raised the Levines’ odds of divorce, even if not quite up to 1.0. There is just a lot of evidence at the individual level that job loss increases the odds of divorce (here are three studies). Lots of people — and relationships — had to have been made miserable by the recession.

If that is true, then was the drop in divorce rates good or bad? Was it a silver lining? You have to think about the continuum of marriages — from happy to sad — and who is affected. People who are bouncing around between kinda happy and kinda sad aren’t likely considering the cost of a lawyer yet. Not like those that have hit bottom. But if the cost of divorce — legal fees, real estate, relocation, or whatever — actually delays or forestalls some divorces, it’s probably the ones that are closest to actually occurring for which the outcome changes. That is, the almost-most miserable marriages.

If the recession made more people miserable, and yet fewer got divorced, divorce was more selective. Think of grant funding: when times are tight, more people apply but fewer are funded, so the ones that do are the best of the best (ideally). And the number of good ones not funded goes up. With marriages in a recession, more are miserable, yet the bar for divorcing is raised (or lowered) by the costs relative to income. So there are more miserable marriages not ending in divorce. Obviously, God thinks this is good, because he has no patience for our petty divorce excuses (which explains Wilcox’s interpretation).

One obvious possibility is that family violence increases when more miserable marriages produce fewer divorces. There was a spike in intimate partner violence in 2008 and 2009, the years men’s unemployment rates jumped. (We will address this and related issues at an American Sociological Association special session this year.)

It is very common, yet wholly unjustified, to always assume falling divorce rates are good. As I argued before: We simply do not know what is the best level of divorce to maximize the benefits of good marriage while mitigating the harms caused by bad marriage.

Source: Divorces rise as economy recovers, study finds (Los Angeles Times, January 27, 2014).

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

Facts: Mother and Father are the unmarried parents of Child. In 2008, Child was brought into the custody of the Department of Children’s Services (“DCS”) because, among other reasons, Mother tested positive for cocaine, marijuana and opiates, and lacked adequate housing. The trial court found Mother failed to comply with her permanency plan. Mother’s parental rights were terminated. Although Mother’s issues were addressed on appeal, they will not be discussed in this blog post.

At the time of trial, Father was serving an eight-year sentence for selling drugs within 1000 feet of a school. The trial court found that Father engaged in conduct that exhibits a wanton disregard for Child’s welfare by not visiting regularly with Child prior to DCS custody, showing a lack of interest in Child’s welfare by not monitoring her well-being, being convicted of selling drugs within 1000 feet of a school and, as a result, becoming incarcerated and being unable to provide for Child or visit with Child. The trial court further found that Father’s “repeated criminal acts further show a wanton disregard for the children in the community by selling dangerous drugs where schoolchildren are likely to be present.”

After finding termination of Father’s parental rights to be in Child’s best interests, Father’s parental rights were terminated. Father appealed.

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

It is well established that parents have a fundamental right to the care, custody, and control of their children. However, this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute.

Termination of parental rights must be based upon a finding by the court that: (1) the grounds for termination of parental or guardianship rights have been established by clear and convincing evidence; and (2) termination of the parent’s or guardian’s rights is in the best interests of the child. Before a parent’s rights can be terminated, it must be shown that the parent is unfit or substantial harm to the child will result if parental rights are not terminated. Similarly, before the court may inquire as to whether termination of parental rights is in the best interests of the child, the court must first determine that the grounds for termination have been established by clear and convincing evidence. Clear and convincing evidence supporting any single ground will justify a termination order.

In pertinent part, Tennessee Code Annotated § 36-1-102(1)(A)(iv) provides:

(1)(A) For purposes of terminating the parental or guardian rights of parent(s) or guardian(s) of a child to that child in order to make that child available for adoption, “abandonment” means that:
* * *
(iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent’s or guardian’s incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child….

Tennessee courts have repeatedly held that probation violations, repeated incarceration, criminal behavior, substance abuse, and the failure to provide adequate support or supervision for a child can, alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare of a child. While a parent’s criminal behavior does not automatically constitute wanton disregard for the welfare of a child, it certainly may constitute such wanton disregard under the appropriate circumstances. Both the severity and frequency of the criminal acts are factors to be considered in determining whether a parent’s criminal behavior constitutes wanton disregard for the welfare of a child.

After reviewing the record, the Court concluded:

Father’s criminal behavior was serious and detrimental to his child’s welfare. As a result of Father’s crimes, Father has rendered himself absent from [Child's] life for most of her childhood. It also is noteworthy that Father’s acts were committed on two separate dates. Father’s criminal behavior was, therefore, repeated, and this repetition served only to increase the jeopardy to [Child's] welfare.

Finding that the evidence does not preponderate against the findings made by the trial court, the Court of Appeals affirmed the finding of abandonment by wanton disregard and, subsequently, the termination of Father’s parental rights.

K.O.’s Comment: I have always been troubled by the “wanton disregard” ground for termination. In practice, I find it to be an all-encompassing “catch-all” ground that lacks a consistent analytical framework. Family law attorneys, litigants, and trial courts would benefit from greater clarity from the appellate courts as to when it applies and how it should be analyzed. The existing standard of “appropriate circumstances” — whatever that means — is not helpful at all.

In re Kierra B. (Tennessee Court of Appeals, Eastern Section, January 14, 2014).

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

Knoxville divorce lawyersFacts: The parties divorced after 25 years of marriage. Husband is a dentist who operated a solo practice for over 30 years. Although many issues were raised on appeal, the only one I find noteworthy is the valuation of Husband’s dental practice.

Wife presented the testimony of an expert witness who valued Husband’s dental practice between $468,000 and $500,000 without including the real property. The witness testified in her valuation was based on a “market approach” that was based on production and revenue. In determining the market value of the dental practice, Wife’s expert considered that the purchaser would be “buying a going concern; you are buying something that is already operating. So part of the value is the fact that you have got an in-place, existing, going-concern business.” Wife’s expert testified that her valuation did not depend upon Husband being the person to continue working in the practice.

Husband testified his dental practice should be valued at -$100,000 (that’s right, negative $100,000), which the trial court found lacked credibility.

The trial court valued Husband’s dental practice at $468,000. Husband appealed.

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

Under Tennessee law, professional goodwill is not a marital asset that can be divided in a divorce proceeding. The basic rationale in the cases disallowing goodwill as a component of the marital estate in valuing a professional practice results from the inequity in compelling a professional practitioner to pay a spouse a share of an intangible asset at a judicially determined value that could not be realized by a sale or another method of liquidating value.

There is a fine line, however, between the personal goodwill of a practitioner and the business goodwill of a practitioner’s business, complete with staff, equipment, and a location that could be assumed by another practitioner. As opposed to cases where the professional practice’s value as a going concern and its business reputation is inseparable from the professional reputation of the practitioner, ‘net asset value’ principles do not apply to incorporated professional practices that do not depend solely on the professional reputation of the practitioner.

After reviewing the record, the Court reasoned:

[Wife's expert] was clearly distinguishing between Husband’s personal goodwill in the community and the goodwill his practice would continue to enjoy with a different practitioner in terms of equipment, staff, location, and established patients. This Court has previously determined that such a distinction may be considered in including business goodwill for valuation where the practitioner has one or more partners or pre-established contracts that could be assumed by another practitioner. However, in a case such as the one at bar, wherein Husband is the sole practitioner of an unincorporated dental practice, whether his business could continue without him is speculative, leading to the conclusion that the goodwill of Husband’s practice should not be considered in valuing said practice. We therefore must reverse the trial court’s valuation of Husband’s dental practice and remand for valuation without consideration of goodwill, regardless of whether that goodwill is associated personally with Husband or with his practice.

Accordingly, the trial court’s judgment was reversed. The case was remanded to the trial court to allow the parties to present additional evidence regarding the value of the dental practice.

Hartline v. Hartline (Tennessee Court of Appeals, Eastern Section, January 13, 2014).

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

Posted by: K.O. Herston | February 3, 2014

Unmarried Parents Are Increasingly Cohabitating

This recent article by Hope Yen in the Washington Post may be of interest to readers of this blog.

More couples who become parents are living together but not marrying, data show

No longer taboo, living together has become a more common arrangement for U.S. couples who become pregnant while dating.

Soon-to-be-released government figures show a major cultural shift since the days of “shotgun weddings” aimed at avoiding family embarrassment. With marriage on the decline, the shift is helping redefine the traditional notion of family.

“The emergence of cohabitation as an acceptable context for childbearing has changed the family-formation landscape,” said Christina Gibson-Davis, a sociology professor at Duke University. “Individuals still value the idea of a two-parent family but no longer consider it necessary for the parents to be married.”

Still, she cautions that children in cohabiting households may face more difficulties growing up if their unmarried parents are at higher risk of breaking up.

In all, the share of unmarried couples who opted to have “shotgun cohabitations” — moving in together after a pregnancy — surpassed “shotgun marriages” for the first time during the last decade, according to a forthcoming paper from the National Center for Health Statistics, part of the Centers for Disease Control and Prevention. The trend was affirmed by three demographers who conducted separate research on the topic.

It’s the latest demographic tipping point as cohabitations turn mainstream — a far cry from the days when the father of a pregnant daughter might coerce the baby’s father into marriage.

The numbers are based on the government’s National Survey of Family Growth, typically issued every four years. It provides the only government data on cohabiting mothers by asking questions on a woman’s relationship status before and after conception and childbirth. Women who say they were single before conception and then married before childbirth are counted as someone who had a post-conception, or “shotgun” marriage; those who moved in with their boyfriends after pregnancy had a post-conception or “shotgun” cohabitation.

Demographers say the cohabiting trend among new parents is likely to continue. Social stigma regarding out-of-wedlock births is loosening, and economic factors play a role. Many couples, especially those who lack a bachelor’s degree, are postponing marriage until their finances are more stable. But because of globalization, automation and outsourcing, good-paying middle-income jobs are harder to come by.

“Because marriages are becoming more polarized by economic status, I don’t see the trend of shotgun cohabitations reversing any time soon,” said Casey Copen, a demographer at the government’s National Center for Health Statistics, which administers the government survey.

About 18.1 percent of all single women who became pregnant opted to move in with their boyfriends before the child was born, according to 2006-2010 data from the government’s National Survey of Family Growth, the latest available. That is compared with 5.3 percent who chose a post-conception marriage.

As recently as the early 1990s, 25 percent of such couples got married.

Cohabiting mothers are spurring increases in out-of-wedlock births, now at a high of 41 percent. In all, about 60 percent of all births during the 2000s were to married mothers, compared with 24 percent to cohabiting mothers and 16 percent to non-cohabiting mothers. That was the first time that cohabiting births exceeded births from single mothers who weren’t living with their child’s father.

Since the early 1990s, the share of out-of-wedlock, cohabiting births has grown from 11 percent to 24 percent, while those to noncohabiting, single mothers has remained steady at 16 percent.

Sometimes referred to as the “poor person’s marriage,” cohabitation is growing fastest among high school graduates with children. Between the 1997-2001 and 2002-2009 periods, it grew from 23 percent to 32 percent, according to Sheela Kennedy, a researcher at the University of Minnesota. For mothers with some college attendance, it grew from 15 percent to 23 percent during that period. Among those with four-year college degrees, the share has changed from 3 percent to 5 percent.

Daniel Lichter, a Cornell sociologist and past president of the Population Association of America, said the government needs to do more to reflect increasing cohabitation in statistics. Cohabitation status is not on birth certificates, and that can skew policy debates over the government safety net for poor households. It also means a growing trend of fragile families in which cohabitating parents may be more likely to break up can be neglected, he said.

Researchers at Harvard and Cornell have found that about half of mothers who were cohabiting when their child was born were still in relationships with the biological father five years later.

“The latest results seem to indicate that marriage, as a context for childbearing and childrearing,” Lichter said, “is increasingly reserved for America’s middle- and upper-class populations.”

Source: More couples who become parents are living together but not marrying, data show (Washington Post, January 7, 2014).

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

Posted by: K.O. Herston | January 30, 2014

Collaborative Divorce In One Weekend

This recent article by Matt Baron in the Chicago Tribune may be of interest to readers of this blog.

‘The Weekend Divorce’: Attorneys Develop Innovative Approach to Untying the Knot

Breaking up is hard to do—even when both husband and wife are ready to bring their marriage to an end. As a result, divorce can often be financially devastating and time consuming.

Against that backdrop, attorneys Sandra Young and Brian Garvey have developed an innovative antidote that is believed to be the first of its kind anywhere: “The Weekend Divorce.”

A centerpiece of their streamlined approach is booking a hotel conference room for two days and negotiating every detail of the divorce agreement and signing all documents by the time the couple leaves on Sunday. Both attorneys assess a flat fee for their services.

The International Academy of Collaborative Professionals, with more than 5,000 members in 24 countries, knows of no other attorneys who are using a model like The Weekend Divorce.

The duo’s shared passion for helping couples move on with the rest of their lives, as harmoniously and as efficiently as possible, sparked The Weekend Divorce concept.

“Too often, a breakup that begins with civility declines into civil war as stress levels rise and, in some cases, unscrupulous attorneys pit their clients against one another,” said Young. “The collaborative divorce model is less disruptive, both in the present and the future, especially where children are involved.”

One of the distinguishing features of collaborative divorce is that both parties pledge to work together respectfully, honestly, and in good faith to resolve issues and reach agreements beneficial to everyone involved.

The concept of “The Weekend Divorce” took shape, fittingly enough, over a weekend in October 2012 when Young and Garvey helped a couple bring their marriage to a halt. In that and any other divorce representation, each advocates solely for one individual.

Collaborative Divorce (aka Collaborative Law or Collaborative Practice) is a “no-court-client-centered” dispute resolution process that separating spouses can use with the help of specially trained and licensed legal, mental health and financial professionals.

When it comes to divorce, Young and Garvey have heard a similar refrain from clients as well as others in their lives: it tends to take a lot longer, and cost a lot more, than people expected.

“So many times, even though people want to get a divorce, they don’t even want to start the process,” Young explained. “They are worried about where it’s going to end.”

While hotly contested divorces are prone to those drawn-out, expensive sagas, there are plenty of relatively amicable partings that would be good candidates for The Weekend Divorce, according to Young and Garvey.

Both attorneys have extensive experience working in collaborative divorce. Combined, they have represented couples more than 80 times, including three occasions in which they worked together as a team for divorcing couples.

Reflecting on her career, Young said that in all but a few of the divorce cases she worked on, The Weekend Divorce model would have been a viable option; for Garvey, about one-third of his cases would have been a potential fit, he estimated.

Terminating a marriage with efficiency should not be construed as doing anything in haste, said Garvey. He noted that both parties are required to provide the same level of documentation as any other divorce case.

“The standard divorce case—and even with collaborative divorce sometimes—it drags on with all of the required documentation, and ongoing negotiation, happening little by little, piece by piece over a number of court hearings,” Garvey noted. “With The Weekend Divorce, we simply accelerate in a few days what typically takes months, if not years.”

“This is not like those quickie marriages you hear about in Las Vegas drive-thrus,” he cautioned. “It’s not Bill and Sue getting into a fight on Thursday, then meeting with us the next day to call it quits. The Weekend Divorce is for couples who have thoughtfully agreed that their marriage has run its course.”

A pivotal document that guides couples, in advance of The Weekend Divorce, is a financial checklist in which they gather copies of statements ranging from tax returns, paycheck stubs, bank accounts and life insurance policies to mortgages, automobile debt and real estate appraisals. That paperwork must be furnished to the attorneys at least 10 days before The Weekend Divorce session.

Source: The Weekend Divorce: Attorneys Develop Innovative Approach to Untying the Knot (Chicago Tribune, December 27, 2013).

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

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