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 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.

Posted by: K.O. Herston | August 5, 2014

Divorce Advice: Selecting the Right Divorce Lawyer

Selecting the Right Divorce Lawyer

Your selection of a lawyer is as important as your decision to divorce. Your divorce is likely to be the most significant interaction you ever have with the legal system. Your life and your children’s lives will be forever affected by the outcome.

Hiring a lawyer is like anything else — you get what you pay for. If you are diagnosed with a serious illness, you do not hire the cheapest doctor you can find. You hire the best doctor you can find. The same is true of lawyers, especially in a case with all the potential life-changing consequences associated with a divorce.

Knoxville DivorceTrust is the most important component in any attorney-client relationship. The time will come in your case when, if you are smart, you will rely on your lawyer’s advice. That will be difficult to do if you do not trust your lawyer’s knowledge, experience and ability to give you good advice. The smart client follows his or her attorney’s instructions and advice.

Lawyers earn their reputations by blending talent, intelligence, competence, judgment and integrity. A well-founded reputation for integrity is an attorney’s most important attribute.

Many people think they need a lawyer with a reputation for aggressiveness, i.e., a “bulldog.” Nothing could be further from the truth. Lawyers who are unnecessarily combative tend to be ineffective. The time for a lawyer to be aggressive is when doing so directly benefits the client. An experienced, effective attorney knows when to be aggressive and when not to. The best divorce lawyers tend to avoid overt displays of combativeness and aggression except in those rare instances when doing so is beneficial.

Investigate your lawyer’s credentials before you hire him or her. Meet with the lawyer before you hire him or her. Your first meeting with a lawyer should be educational. If you do not feel more knowledgeable about your situation and the applicable law after the meeting, keep looking for another lawyer. The one you met with is not the right attorney for you.

Do not hire a lawyer who guarantees results in court or who claims to have never lost a case.

Ask your lawyer about what he or she charges. Most charge by the hour for the time they work on your case and charge in increments of one-tenth to one-quarter of an hour for all phone calls, emails, text messages, letters, meetings, and so forth be sure you clearly understand his or her hourly rate and the hourly rate of every other attorney or staff member who may work on your case.

Most lawyers require the payment of a fee retainer. A fee retainer is payment in advance for legal work to be performed at a later date. The fee retainer is typically deposited in a trust account from which the lawyer is paid for work performed. Make sure the fee retainer is refundable.

Ask your lawyer if there will be additional costs other than attorney’s fees for services such as filing fees, court reporters, copies, faxes, long-distance phone calls, computerized legal research, expert witnesses and mediators.

Ask your lawyer if he or she will pay for the expenses upfront and bill you later or if you will be required to pay the expenses as they are charged.

Most lawyers require clients to sign a fee agreement contract when the lawyer accepts the case. Read the fee agreement carefully. Be sure you fully understand it. Always sign a fee agreement with your lawyer and retain a copy for yourself.

Make sure to receive monthly statements documenting the work performed on your case and the balance of funds remaining in your trust account.

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 4, 2014

Divorce Advice: The Decision to Divorce

The Decision to Divorce and Early Considerations

The decision to divorce is one of the most significant decisions you will ever make. Divorce is a traumatic experience for everyone involved. Nothing about it is pleasant or easy. Divorce does not mean you are a failure as a spouse, parent or person.

Knoxville divorceDivorce and child custody cases involve many complex issues because they involve couples who were (or sometimes still are) in love with each other. Sometimes they grow to dislike each other just as passionately.

Do not allow your family or friends to create unrealistic expectations about your case. Every case is different. Avoid the legal advice of well-meaning family members or friends who are recently divorced. In most cases, the legal advice you get from your friends and family is worth exactly what you paid for it — nothing.

Accept that you will not end up with everything you want. Likewise, your spouse will not get everything he or she wants. Fighting over matters of “principle” can be costly and frustrating. So can fighting over every little thing. Choose your battles carefully. Do not spend $1,000 in legal fees to address a $100 problem. Spend less time worrying about who is right and more time worrying about what is right. Always take the high road.

If you are like most people going through divorce, you are not as innocent as you claim, and your spouse is not as guilty as you claim. There is always another side to the story. Everyone has shortcomings. It is human nature to try and hide them. Whether intentionally or not, both spouses typically contribute in one way or another to the failure of the marriage. Accept responsibility for your conduct, good or bad. Admit your mistakes. Be honest with yourself and your lawyer.

Getting through the divorce with your dignity intact should be one of your main goals. The way you handle yourself during the divorce will affect your relationship with your spouse and children forever.

It is natural to grieve the loss of your relationship with your spouse and/or children. There is no shortcut to healing. You do not have to suffer alone. Do not be afraid or embarrassed to ask for help. In most cases, extreme emotions are only temporary. It is normal to experience emotions such as anger, fear, guilt, loneliness, helplessness, sorrow, resentment, regret and depression.

If the other parent is a bad person whom you have grown to hate, remember that he or she will always be your children’s father or mother. Do not forget that you chose your spouse to be the parent of your children. Always treat your spouse, their friends, and their family with courtesy and respect. Respect your spouse’s role as a parent.

Divorce can be more difficult on the children than the parents. It may take your children months or even years to adjust to the divorce. What is best for you is not always best for your children. Your children’s needs should always come first.

Your children will eventually ask you why you are getting a divorce. Tell them that you and your spouse are the ones responsible for the divorce. Your children will want to know where they will live, whether they will see both parents, whether they will go to the same schools and have the same friends, etc. They want clear and honest answers. Tell your children that both parents love them very much and this will never change, but you and your spouse just cannot live together.

Never discuss the details of the case when you can be overheard by the children. Never discuss details of your case with your children under the excuse that they need to know the truth. They do not.

Never make derogatory comments about the other parent to the children, and never allow others to make derogatory comments about the other parent to the children.

Do not interfere with or try to cut short your children’s telephone calls, emails, text messages or other contact with your spouse. Never tell your children that your spouse is not paying child support and/or alimony. It places the child in the middle of the dispute. Never tell your children they cannot participate in any activity because your spouse refuses to pay for it, even if it is true.

Never argue with your spouse in front of the children. Never try to encourage your children to dislike your spouse.

Never tell your children they do not have to visit your spouse if they do not want to. Never use your children to relay messages to the other spouse or to spy on your spouse.

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 1, 2014

Photo of the Week: American Black Bear

Black Bear

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

Knoxville divorceFacts: Child was born to the never-married Mother and Father. Well after paternity and visitation were established, Mother and Father agreed to give “temporary legal and physical custody” of Child to the paternal grandparents. Although this was never a case of dependency and neglect, the trial court found neither parent was a proper custodian for Child at that time. Both Mother and Father were awarded visitation.

Approximately six months later, Mother sought to have Child returned to her custody. The trial court found there was no showing of a material change in circumstances warranting a change in custody.

Mother appealed.

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

Mother argued the trial court erred in requiring that she demonstrate a material change in circumstances in order to obtain a modification of the existing “temporary” custody arrangement. Instead, Mother argued the doctrine of superior parental rights should have been applied to a request to modify a temporary custody order placing custody of the parties’ minor child with non-parents.

In Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002) (“Blair II”), the Tennessee Supreme Court held

that a natural parent is not generally entitled to invoke the doctrine of superior parental rights to modify a valid custody order awarding custody to a non-parent. Instead, in the absence of extraordinary circumstances — for instance, the natural parent was not afforded an opportunity to assert superior parental rights in the initial custody proceeding; the custody order is invalid on its face; the order is the result of fraud or procedural illegality; or the order grants only temporary custody to the non-parent – a trial court should apply the standard typically applied in parent-vs-parent modification cases: that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests.

After reviewing the record, the Court reasoned:

[T]he agreed order in this case [] expressly provides that it was a “temporary custody agreement” that gave only “temporary physical and legal custody” of the Child to the paternal grandparents. As such, the order falls squarely within one of the exceptions contemplated by [the Tennessee Supreme Court] in that it is not a valid final custody order. It follows that Mother is clearly entitled to invoke the doctrine of superior parental rights in her motion to modify custody. Accordingly, the trial court erred by instead subjecting her motion to modify to a “material change in circumstances” standard.

The trial court’s judgment was vacated and the matter remanded for further proceedings.

Clark v. Cooper (Tennessee Court of Appeals, Eastern Section, June 19, 2014).

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

Facts: When Mother and Father divorced, Mother was designated the primary residential parent of Child.

Seven years later, Father petitioned to change custody, alleging that Mother failed to attend to Child’s medical needs and need for speech therapy.

Knoxville divorceThe proof shows Father took Child to the doctor for severe breathing issues. Mother thought these problems were caused by allergies. The doctor disagreed, finding a serious problem with Child’s enlarged adenoids indicated the need for surgery. Mother took no action. Finally, Father had the surgery done while Child was with him. Child also experienced emotional stress as a result of her speech problem which was not addressed until Father put Child in speech therapy.

The trial court found a material change in circumstances in that Mother did not follow up on Child’s medical condition and failed to address the issues — emotional and behavioral — associated with Child’s speech problems. The trial court further found it was in Child’s best interest for Father to be designated the primary residential parent.

Mother appealed.

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

A petition to modify the custody of a child requires the court to conduct a two-step analysis. The threshold question is whether a material change in circumstances has occurred since the entry of the prior custody order. Only if the court finds a material change in circumstances does it proceed to consider whether changing custody is in the child’s best interest.

Decisions involving the custody of a child are among the most important decisions faced by the courts. The party seeking modification of the parenting plan to change the designation of the primary residential parent has the burden of proving a material change in circumstances. Although there are no bright-line rules for determining when such a material change of circumstances has occurred, there are several relevant considerations: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way.

After reviewing the record, the Court commented:

Father noticed [Child] was having difficulty breathing at night and she was having difficulty saying certain sounds. When Mother was made aware of Father’s concerns [], Mother responded she did not have time to deal with these issues and Father would have to take care of what Father perceived to be [Child's] medical and speech problems….

The record contains notes from [Child's] physician. These notes indicate Father asked the physician to contact Mother to discuss [Child's] condition and the physician attempted to reach Mother. The physician stated in his notes he left a message with Mother, asking her to return his call. According to the physician, Mother never returned his call. Father arranged to have the recommended surgery performed on [Child]…. Father testified the surgery was successful and [Child's] breathing problems at night ceased following the surgery….

The record contains evidence [Child] was difficult to understand in class due to her inability to make certain sounds and, as a result, [Child] did not like to talk in front of her friends or volunteer to speak in class. Father testified he was alarmed at the negative effects on [Child] from not being able to speak properly and [] he decided to set up a speech evaluation in an effort to improve his daughter’s quality of life even if Mother refused to participate in this effort. As a result of the speech therapy she received over several months’ time, the evidence was undisputed [Child] has become better adjusted socially and her speech is much improved….

Despite Mother’s pretension she was not informed about [Child's] medical condition and her need for surgery before the surgery was scheduled, there is strong evidence to the contrary….

Based upon our review of the record, we find the evidence does not preponderate against the trial court’s findings Father has established a material change of circumstances by a preponderance of the evidence.

The Court went on to agree with the trial court’s judgment that it is in Child’s best interest for Father to be named the primary residential parent.

Accordingly, the trial court’s judgment was affirmed.

In the Matter of Shayla H. (Tennessee Court of Appeals, Middle Section, June 9, 2014).

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

Posted by: K.O. Herston | July 25, 2014

Photo of the Week: Common House Fly

Common House Fly

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

Facts: Mother gave birth to Child in 2009.

The following year, the State of Tennessee, acting on Mother’s behalf, filed a petition against Alleged Father to establish paternity. After finding that Alleged Father failed to appear at the hearing despite being served with process, the trial court entered a default judgment establishing paternity and setting Alleged Father’s ongoing and retroactive child support obligation.

A year later, after his wages were garnished to satisfy the child support order, Alleged Father appeared at a hearing and requested DNA testing. After the paternity testing showed Alleged Father was not Child’s biological parent, Alleged Father moved to set aside the default judgment and child support order. He further alleged that Mother “knew or should have known that [Alleged Father] was not the biological father as she was not intimate with him at a time that would be consistent with the birth of the child and its conception.”

Despite Alleged Father’s protestations to the contrary, the trial court found Alleged Father had willfully evaded personal service of process and knew to appear at the hearing where the default judgment occurred, thereby establishing actual or constructive notice. Alleged Father’s motion to set aside was untimely inasmuch as it was filed more than 30 days after the entry of the default judgment. The trial court held it could not retroactively forgive the child support arrears and that statutory interest had to be imposed. Accordingly, the trial court entered a judgment against Alleged Father for $23,472.02.The trial court amended its previous order, however, to reflect that Alleged Father “is not the biological father of [Child] and, therefore, [Alleged Father] will not have any future child support obligations.”

Alleged Father appealed.

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

Regarding Alleged Father’s claim that he was never served with process for the underlying petition to establish paternity, the Court noted that Alleged Father, appearing pro se both at the trial court level and on appeal, failed to provide a transcript or statement of the evidence from which the Court could determine whether the evidence preponderates for or against the trial court’s findings. In the absence of the trial court record, the Court must presume that the trial court’s findings of fact are supported by the evidence. Thus, the Court must presume that Alleged Father willfully evaded service of process and knew to appear at the hearing where the default judgment occurred. The Court did so.

Regarding the retroactive modification of child support, Tennessee Code Annotated § 36-5-101(f)(1) provides that a judgment for child support “shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed. . . .” This provision is required by federal law to ensure that children receive adequate parental support. When the provision was enacted, equitable defenses were specifically disallowed because, according to the Tennessee Supreme Court, it would create “a situation where exceptions could easily swallow up the rule.”

Pursuant to Tennessee Code Annotated § 36-5-101(f)(1), Tennessee courts have consistently upheld the prohibition against retroactive modification of child support in the face of equitable defenses.

After reviewing some analogous cases, the Court concluded:

In light of [] the statutory prohibition against retroactive modification of child support, we must affirm the trial court’s denial of Rule 60 relief because such relief would result in the retroactive modification of child support. We find this result harsh, but the statutes and case law require this result.

Although [Alleged Father] cannot receive retroactive modification of child support, the trial court did grant Rule 60 relief as to any obligation to pay child support prospectively. Thus, [Alleged Father] is relieved from any child support obligation as of the date his motion to set aside the child support order was filed….

Accordingly, the trial court’s judgment was affirmed.

K.O.’s Comment: Arguably, Alleged Father could bring a “paternity fraud” action against Mother to recover his pecuniary loss pursuant to Hodge v. Craig — that is, if the one-year statute of limitations has not run (I believe it likely has). Alleged Father really could have benefited from having a knowledgeable family law attorney (and a court reporter) at the trial court level.

Purdy v. Smith (Tennessee Court of Appeals, Middle Section, May 23, 2014).

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

Facts: Mother and Father, parents of Child, divorced in 2011. They agreed that Mother be designated the primary residential parent. Father received reasonable visitation.

Two years later, Maternal Grandparents filed a petition for custody of Child on the grounds that Child was dependent and neglected in Mother’s care. Specifically, Maternal Grandparents alleged Mother is bipolar and was abusing prescription and nonprescription drugs. They claimed Mother had been in and out of several mental institutions but they did not help her at all.

Upon learning of the petition, Father filed a petition to modify the parenting plan, alleging that a material change in circumstances has occurred as evidenced by Maternal Grandparents’ petition for custody.

At the hearing on Father’s petition, Maternal Grandparents minimized and contradicted the allegations asserted in their petition for custody. The trial court denied Maternal Grandparents’ request to intervene in the child custody modification proceeding.

The trial court found a material change of circumstances had occurred that affected Child’s well-being in a meaningful way and that it was in Child’s best interest to designate Father as the primary residential parent. The trial court specifically found that Maternal Grandparents were not credible witnesses, but that Father was a credible witness whose “parenting had been undermined by the continuous interference by [Maternal Grandparents] and the bizarre behavior of [Mother].”

Mother appealed.

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

Mother argued she had addressed and corrected her behavioral issues prior to trial and, therefore, that was not a material change of circumstances justifying the change of child custody.

The determination of whether a “material change in circumstance” occurred requires a different standard depending upon whether a parent is seeking to modify custody (i.e., change the primary residential parent) or modify the residential parenting schedule. The Tennessee Code establishes a lower threshold for modification of a residential parenting schedule.

There are no hard and fast rules for when there has been a change of circumstances sufficient to justify a change in custody. However, to determine whether a material change in circumstances has occurred, the court should consider whether: (1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child’s well-being in a meaningful way.

After reviewing the record, the Court concluded:

In this case, Mother’s behavior progressively deteriorated while she resided with Grandparents. Despite Grandparents’ retraction of their initial allegation that Mother was unfit, the record establishes that the Child’s living environment had simply become unsafe and contentious and involved regular police intervention. While Mother may have made efforts to address her behavioral issues, the trial court found that Grandparents were not credible witnesses. Additionally, Grandparents and Mother admitted to hiding her behavior from Father in an effort to preclude his involvement with the Child. The increasingly hostile environment in which the Child lived and the interference with Father’s ability to parent the Child was a material change in circumstances that was not reasonably anticipated and that affected the Child’s well-being in a meaningful way.

Having found a material change of circumstances, the Court proceeded to determine whether a change in custody was in Child’s best interest. On that issue, the Court wrote:

While Mother previously served as the primary caregiver for a number of years, the relevant factors are fairly equally weighted between the Parents. However, the record is clear that Mother’s ability to parent the Child by herself without interference from Grandparents and to facilitate and encourage a close and continuing parent-child relationship between the Child and Father is severely lacking. With all of the above considerations in mind, we conclude that the preponderance of the evidence supports the trial court’s naming of Father as the primary residential parent as being in the best interest of the Child.

Accordingly, the trial court’s judgment was affirmed.

Dickerson v. Cantrell (Tennessee Court of Appeals, Eastern Section, May 16, 2014).

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

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