Posted by: koherston | March 22, 2017

Divorce Rate in U.S. Drops to Nearly 40-Year Low

This article by Abigail Abrams in Time Magazine may be of interest.

Divorce Rate in U.S. Drops to Nearly 40-Year Low

The U.S. divorce rate dropped for the third year in a row, reaching its lowest point in nearly 40 years, according to data released Thursday.

Marriage rates, on the other hand, increased last year. In 2015, there were 32.2 marriages for every 1,000 unmarried women age 15 or older, according to the National Center for Family and Marriage Research at Bowling Green State University. This represents a jump from 31.9 in 2014 and is the highest number of marriages since 2009, which suggests that marriage rates may be stabilizing after decades of decline.

On the divorce side, the 2015 rate was 16.9 divorces per 1,000 married women age 15 or older, which is down from 17.6 in 2014 and a peak of almost 23 divorces in 1980.

The two measurements are not necessarily related, and it’s tough to know why divorce rates are going down, but it could be that as cohabiting becomes less stigmatized, people don’t look to marriage to shore up an unstable relationship. Marriage rates had been declining for years in part because younger generations have waited longer to get married. But researchers have found that typical marriages still have about a 50% chance of lasting. (This number has been widely debated, since first marriages are much more likely to survive than second or third.)

Divorce and marriage rates vary drastically in different groups of people. The wealthy and well-educated tend to marry and stay together much more than those who are less well-off. The new divorce data show Washington, D.C., had the highest divorce rate in the country last year with nearly 30 marriages per 1,000 ending in divorce. Hawaii had the lowest. Conservative states like Utah and Alaska had the highest marriage rates in 2015, while Rhode Island had the lowest.

tennessee divorce

Source: Divorce Rate in U.S. Drops to Nearly 40-Year Low (Time Magazine, November 17, 2016)

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

Facts: Mother and Father are the divorced parents of two children aged 13 and 12. Their agreed parenting plan at the time of divorce designated Father as the primary residential parent and awarded Mother 160 days of parenting time.

Five years later, Father petitioned to modify the parenting plan to restrict Mother’s parenting time to supervised visitation. Father alleged that Mother had been attempting to undermine one of the children’s relationship with Father, and that Mother was allowing Child to engage in unsupervised access to the Internet such that Child was posting age-inappropriate materials online.

The trial court expressed concern about Child and Mother’s activities on the Internet, commenting that Mother posting fully-clothed pictures of the children on sites such as Facebook and Instagram would be tempting to child predators.

The trial court temporarily restricted mother’s visitation to supervised visitation at a local supervised-parenting center known as the Exchange Club.

Mother was also ordered to complete a Rule 35 evaluation, which evaluation concluded that Mother was capable of caring for the children on an unsupervised basis. Specifically, the evaluator concluded that Mother demonstrates the capacity to care for the children in a loving, careful, and thoughtful manner, and does not represent a danger of harm to herself or others.

Despite this proof, the trial court granted Father’s petition to modify the parenting plan and ordered that Mother’s parenting time be limited to six hours of supervised visitation on Saturday and six hours on Sunday every other weekend. The new parenting plan does not allow Mother to have any holiday time with the children, and gives Father sole decision-making authority. The trial court also stated, “If I see one more [Internet] post with that child’s face on it, I may be cutting off all visitation together totally.”

Mother appealed.

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

Except in certain extreme circumstances, the public policy of the State of Tennessee requires courts to fashion custodial arrangements with the least restrictive visitation limits possible on the alternate residential parent in order to encourage the parent-child relationship.

Tennessee Code Annotated § 36-6-301 allows for supervised visitation if the court finds that visitation is likely to endanger the child’s physical or emotional health, or that the parent has physically or emotionally abused the child.

Supervised visitation may also be warranted based on findings consistent with Tennessee Code Annotated § 36-6-406.

Finally, a trial court may also consider the child’s safety and any risk of substantial harm posed by a parent in its best-interest analysis under Tennessee Code Annotated § 36-6-106.

The Court found the proof did not satisfy the standard required to order supervised visitation:

Father argues that examples of Mother’s irresponsible/dangerous conduct warranting supervised visitation include Mother’s lack of supervision over [Child’s] Internet usage, [Child’s] posting on social media sites and uploading makeup tutorials, . . . Mother not following the Exchange Club’s rules during supervised visits, e.g., giving the children gifts on no-gift days, and manipulating [Child] into wanting to live with her Mother. Based on our entire review of the record, we cannot agree that these occurrences rise to the level necessary to impose supervised visitation. . . . [T]he evidence does not support the finding that Mother is a threat to [Child’s] well-being. We also conclude that the remaining allegations made by Father, which were predominantly adopted by the trial court, do not rise to the level required for the trial court to limit Mother’s parenting time to 12 hours of supervised visitation every other week.

Because the evidentiary record did not support the trial court’s decision to impose supervised visitation, the trial court’s judgment was reversed.

K.O.’s Comment: (1) Supervision of a parent’s visitation is a significant intrusion on the parent-child relationship. While it is sometimes necessary in order to protect the child while permitting the continuation of the parent-child relationship, it is not to be undertaken lightly by a party or a court.

(2) Although this opinion does not say it, other cases make clear Tennessee courts may only restrict a parent’s visitation rights after finding “clear and definite evidence” that permitting continued visitation will jeopardize the child physically, emotionally, or morally. This evidentiary standard effectively creates a presumption against severely restricting or denying visitation. See, e.g., Mashburn v. Mashburn.

Allen v. Allen (Tennessee Court of Appeals, Western Section, March 7, 2017).

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

Posted by: koherston | March 17, 2017

Photo of the Week: Mountain Laurel in Bloom

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

Facts: Mother and Father never married. Child was born in 2010 in Arizona. Mother listed Father on Child’s birth certificate.

Initially, Father lived in California while Mother and Child lived in Arizona. Mother granted Father informal visitation with Child on a regular basis. Father would travel to Arizona for this visitation.

Later, Father moved to Arizona, where he continued his regular visitation with Child.

In 2013, Father moved to Tennessee. Despite the distance between Tennessee and Arizona, Father continued to exercise informal visitation with Child, including traveling to Arizona and bringing Child back to Tennessee for visitation.

In 2014, Mother and Child moved to Tennessee. Again, Father continued to exercise his informal visitation with Child.

In 2016, Mother and Child moved back to Arizona.

east tennessee child custodyTwo weeks later, Father petitioned to establish paternity and obtain custody of Child. Father alleged that Mother’s “numerous moves” with Child were often due to domestic disagreements between Mother and the head of whomever’s household she resided and were often made without a plan of where to go next. Father requested an emergency injunction giving custody to him or requiring Mother to return with Child to Tennessee until the case was resolved.

On the same day Father filed his petition, the trial court entered an ex parte injunction ordering Mother to return to Tennessee with Child.

When Mother was served with the ex parte injunction, she filed a motion to set it aside because she is the sole legal parent of Child and, therefore, was not required to provide Father with prior notice of her intent to relocate to Arizona with Child.

Father then filed a second petition seeking to have Mother held in contempt for not complying with the ex parte injunction. Father also requested another injunction transferring custody of Child to Father.

Without having heard Mother’s pending motion to set aside the initial ex parte injunction, the trial court entered a second ex parte injunction ordering the immediate transfer of custody to Father. Father traveled to Arizona with the injunction and, with the assistance of local law enforcement, removed Child from Mother’s custody, returning to Tennessee with Child the next day.

Mother filed an emergency motion to set aside both injunctions. Two weeks later, the trial court held a telephonic hearing that consisted of argument from counsel but no evidence. The trial court upheld the issuance of both injunctions.

Mother filed an application for an extraordinary appeal.

Shortly thereafter, the trial court entered a written order denying Mother’s emergency motion to set aside both ex parte injunctions, explaining that “it was not appropriate for [Mother] to pack up and leave the State of Tennessee” with Child.

The Court of Appeals granted Mother’s application for an extraordinary appeal.

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

Extraordinary appeals are only granted when the challenged ruling represents a fundamental illegality, fails to proceed according to the essential requirements of the law, is tantamount to the denial of the party’s day in court, is without legal authority, is a plain and palpable abuse of discretion, or results in either party losing a right or interest that may never be recaptured. These appeals are reserved only for extraordinary departures from the accepted and usual course of judicial proceedings.

Tennessee Code Annotated § 36-2-303 provides that absent a court order to the contrary, custody of a child born out of wedlock is with the mother. Here, Father’s acknowledgment of paternity did not vest him with any custody or visitation rights.

Under these circumstances, the Court held that Mother had no obligation to advise or notify Father of her intent to move with Child from Tennessee prior to doing so. The Court explained:

We are sympathetic to the fact that Father may have mistakenly believed that Mother’s moved to Arizona with Child, without prior notice, somehow violated his “rights” as Child’s father. However, given the fact that there has never been an initial custody order or parenting plan establishing the custodial rights of Father to Child, any “rights” Father may have as Child’s biological father, or even as Child’s putative biological father, did not include the “right” to notice of Mother’s intent to move to Arizona with Child. . . . Until such time as the trial court enters an order establishing Father to be Child’s legal father, there exists no legal parent-child relationship between Father and Child. Even where, as here, a mother has listed a putative father on a child’s birth certificate or informally by other acts, words, or cohabitation, acknowledged that a man was the child’s natural father, the putative father would still not have the legal status of a parent under Tennessee law. As such, it is unclear upon what basis the trial court concluded that it was “not appropriate for [Mother] to pack up and leave the State of Tennessee with the minor child,” or how this action justified the issuance of either ex parte injunction.

The Court summed it up:

With due respect to the trial court, we conclude that issuance of the ex parte injunctions in this case were not in accord with the essential requirements of law, denied Mother her day in court, were without legal authority, and resulted in a loss to Mother of her unqualified right to exclusive custody of Child during the pendency of the proceedings below, the purpose of which are to establish Father’s legal rights as a parent to Child.

Thus, both of the trial court’s ex parte injunctions were reversed. Father was directed to return Child to Mother pending further action in the trial court.

K.O.’s Comment: By all accounts, Father has been actively involved in Child’s life. But because he never went to court to establish his paternity, he never attained any legal rights associated with a parent-child relationship. No initial custody determination was ever made by a court. For that reason, Mother was entitled to relocate to Arizona with Child without giving notice to Father. The trial court’s ex parte (!!!) removal of custody from the child’s only legal parent and subsequent placement of the child in the custody of a legal “nonparent” was considered so extreme as to warrant summary reversal in an extraordinary appeal.

Milton v. Harness (Tennessee Court of Appeals, Eastern Section, March 3, 2017).

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

Facts: When Husband and Wife divorced in 2009, the court entered their agreed parenting plan which provided that Husband agreed to pay the children’s private school expenses through 12th grade.

knoxville, tn child supportIn 2015, Husband petitioned to modify the parenting plan because, he argued, there had been a material change in circumstances regarding his obligation to pay private school tuition. Specifically, Husband alleged that his daughter had recently been expelled from her private school. He sought to modify his obligation to pay private school tuition by equitably apportioning the responsibility between the parents or, alternatively, for a downward deviation to his child support obligation to reflect his financial burden of paying private school tuition.

The trial court denied Husband’s petition, holding that his tuition obligation was voluntarily assumed, was contractual, and because “it is not the role of the courts to rewrite contracts for dissatisfied parties.”

Husband appealed.

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

Husband argued the trial court erred in holding that it lacked authority to modify his obligation to pay private school tuition because this obligation was voluntarily assumed and was contractual in nature.

In Tennessee, a trial court lacks the authority to order a parent to pay for the college education of a child who has reached the age of majority. A parent may voluntarily assume such a duty by agreement, and an agreement to support a child beyond the age of majority will be enforced. However, because such agreements are beyond the legal duty of child support, they retain their contractual nature when incorporated into a court order. Therefore, such agreements are not subject to modification by the court.

On the other hand, private elementary and secondary education tuition is an educational expense that may fall within the parents duty to support his or her child in certain cases. When parents contract with respect to the legal duty of child support and the court approves that contract, the agreement becomes merged into the court order and loses its contractual nature. Therefore, unlike an agreement to pay college tuition, a parent’s agreement to pay for private elementary or secondary education that has been incorporated into a court order is subject to subsequent modification by the trial court.

In light of this distinction between the modifiability of a voluntary agreement to pay private elementary or secondary school tuition as compared to college expenses, the Court reversed the trial court:

Although a parent’s agreement to pay for post-secondary education expenses is contractual in nature and not subject to modification by the trial court, this case involves Husband’s agreement to pay for private elementary and secondary education. [For this reason,] the trial court possessed of the authority to order this type of support even without an agreement of the parents. Further, upon adoption of the parties’ parenting plan into the trial court’s final order of divorce, this support obligation merged into the divorce decree and lost its contractual nature. Accordingly, the trial court erred in holding that it was without power to modify Husband’s private school tuition obligation.

Thus, the trial court’s judgment was reversed and the issue remanded for a determination of whether modification of Husband’s private school tuition obligation is warranted and, if so, to what extent.

K.O.’s Comment: Tennessee lawyers should be mindful of the difference between voluntary agreements to provide pre-emancipation “child” support, which agreements can be modified, and voluntary agreements to provide post-emancipation “adult” support, which agreements cannot be modified.

Ghorashi-Bajestani v. Bajestani (Tennessee Court of Appeals, Eastern Section, March 1, 2017).

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

Posted by: koherston | March 10, 2017

Photo of the Week: Cub Climbing

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

Facts: Mother is the biological mother of two children aged 3 and 4. At the time of their births, Mother was unmarried and resided with her parents, the children’s maternal grandparents.

Grandparents petitioned to terminate Mother’s parental rights and to adopt the children. They allege that Mother moved out of their home several years earlier and gradually abandoned her parental obligations.

Knoxville divorceMother and Grandparents entered into an agreement that Grandparents would be the custodians of the children, the petition to terminate Mother’s parental rights would be dismissed, and Mother would lose her superior parental rights such that in any future proceeding she must show it is in the children’s best interest for her to receive custody. The trial court approved this agreement, and Grandparents’ petition was dismissed.

Roughly one year later, Mother petitioned to regain custody of her children. First, Mother argued she retained her superior parental rights. Alternatively, Mother alleged that Grandparents frequently disparaged Mother in the children’s presence, provided an inadequate living environment, and unreasonably refused Mother access to the children, all of which constituted a material change of circumstances making a change of custody in the children’s best interest.

The proof at trial showed that Mother had matured and is now in a position to care for the children. She married, is financially stable, and has maintained steady employment.

The trial court found that Mother had established physical, emotional, and financial stability over the previous year. The trial court also found that Grandparents lacked credibility, had unnecessarily hindered Mother’s access to the children, and had failed to promote a loving and nurturing relationship between Mother and the children.

Based on these findings, the trial court granted Mother’s petition, thereby returning the children to her custody. The trial court found that Mother retained her superior parental rights and is a fit parent. Alternatively, the trial court found that Mother established a material change and that the restoration of custody was in the children’s best interest.

Grandparents appealed.

On Appeal: The Court of Appeals reversed in part and affirmed in part.

A parent has a fundamental right, based in both the federal and Tennessee constitutions, to the care and custody of his or her own child. Thus, courts deciding initial custody disputes give natural parents a presumption of “superior parental rights” regarding the custody of their children. Under this doctrine of superior parental rights, courts must favor the biological parent when faced with a competing custody claim by a nonparent. For this reason, in an initial custody proceeding, a court cannot award custody to a nonparent over a natural parent unless the nonparent can demonstrate that the child will be exposed to substantial harm if custody is awarded to the biological parent.

A parent is generally not entitled to invoke the doctrine of superior parental rights, however, when seeking to modify a valid order placing custody with a nonparent. In such cases, trial courts 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. The material change in circumstances standard is applied even if the biological parent voluntarily ceded custody of the children to the nonparent.

Still, a natural parent can retain his or her superior parental rights despite the fact that a nonparent has been awarded custody:

  • when no order exists that transfers custody from the natural parent;
  • when the order transferring custody from the natural parent is accomplished by fraud or without notice to the parent;
  • when the order transferring custody from the natural parent is invalid on its face; and
  • when the natural parent cedes only temporary and informal custody to the nonparents.

The Court of Appeals reversed the trial court’s judgment that Mother retained her superior parental rights:

In the present case, the trial court determined that Mother retained her superior parental rights because it found the [] agreed order concerning custody to be a temporary order. We disagree.

The order uses express language representing that it is a final custody determination. . . . Moreover, both the agreed order and the handwritten agreement upon which the order was based plainly state that the arrangement “defeats [Mother’s] superior parental rights.” The order goes on to specifically cite Blair v. Badenhope, the very case in which our Supreme Court recognized that a parent who voluntarily cedes custody cannot invoke the doctrine of superior parental rights to modify a valid order transferring custody to a nonparent.

We recognize that the next line of the order stating that “for purposes of future proceedings, [Mother] must show that it is in the best interest of the minor children for her to receive custody” is misleading. As explained in Blair, a parent in cases such as this one must demonstrate both a material change of circumstance and that a change in custody is in the child’s best interest in order to regain custody. Still, despite the inconsistency in the [agreed] order, we conclude it was a final order granting Grandparents custody of Mother’s children.

Thus, Mother did not retain superior parental rights because the agreed order granting custody to Grandparents was a final order, not a temporary one.

Nonetheless, the trial court’s change of custody was affirmed because the trial court properly found there had been a material change in circumstance such that the change of custody was in the children’s best interest.

Thus, even though Mother no longer possessed superior parental rights, the trial court’s decision to grant her custody of her children was affirmed.

Holley v. Ortiz (Tennessee Court of Appeals, Middle Section, February 24, 2017).

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

Facts: During the marriage, Husband and Wife lived off the income from a trust fund and stock portfolio.

When they divorced in 2008, the trial court approved their marital dissolution agreement, which provided that Husband would pay 35% of the income from the trust fund and stock portfolio to Wife as alimony in futuro. Notably, the marital dissolution agreement provided that “Wife shall never receive less than $1200 per month, even if $1200 is greater than the previously agreed 35%.”

knoxville alimonyIn 2013, Husband petitioned to modify his alimony obligation on the grounds that the value of the assets and income from the trust fund and stock portfolio had substantially declined. Husband argued the substantial drop in his investment income since the divorce was a substantial and material change in circumstances that was not anticipated when the marital dissolution agreement was signed.

The trial court found there had not been a substantial and material change in circumstances because the the parties anticipated the ups and downs of the stock market by establishing a minimum floor of $1200 in the marital dissolution agreement.

The proof also showed that Wife’s two adult children were now living with her. The trial court found the adult children did not provide any financial support to Wife and, therefore, there was no reason to modify alimony on this basis.

For these reasons, Husband’s petition to modify his alimony obligation was denied.

Husband appealed.

On Appeal: The Court of Appeals affirmed in part and reversed in part.

Modification of alimony. Alimony in futuro is intended to provide support on a long-term basis until the death or remarriage of the recipient. Tennessee Code Annotated § 36-5-121(f)(2)(A) states that alimony in futuro remains in the trial court’s control for the duration of the award and may be increased, decreased, terminated, extended, or otherwise modified upon a showing of a substantial and material change in circumstances. Thus, a court may not modify or terminate a spousal support award unless it first finds that a sufficient change in circumstances has occurred since the entry of the original support order.

Husband argued the parties could not have foreseen that the investment income would ever produce less than $1200 per month. The Court rejected this argument, explaining:

The language of the MDA is clear and unequivocal. The baseline for Wife’s alimony is at least $1,200 per month “regardless of the distribution from the stock portfolio. . . even if $1,200.00 is greater than the previously agreed 35%.” We find unavailing Husband’s arguments about the unforeseeability of the market downturn. On the contrary, that the market fluctuates is both self-evident and acknowledged by the MDA itself. The MDA provision setting a baseline minimum of $1,200 reasonably could be viewed as a nod to the market’s instability, establishing a minimum despite its variations. The lone fact that the stock market underwent a sharp downturn in 2008, while a devastating economic event, cannot in itself constitute a material change in circumstances because such downturns, even drastic ones, are part and parcel of the risk of the stock market and are therefore eminently foreseeable. Further, the parties, as found by the Trial Court, “anticipated the variances of the stock market by putting in a minimum floor of $1,200.00 . . . .”

Thus, the trial court’s decision was affirmed.

Cohabitation. Tennessee Code Annotated § 36-5-121(f)(2)(B) provides that where a person is receiving alimony in futuro and the recipient lives with a third person, a rebuttable presumption is raised that the third person is contributing to the support of the alimony recipient or is receiving support from the alimony recipient such that the alimony recipient does not need the amount of support previously awarded.

Under the statute, the trial court’s remedy is to suspend all or part of the alimony obligation, not forever terminate the alimony. The implication is that if the situation justifying the suspension ceases to exist, the alimony recipient may seek reinstatement of the support award from the former spouse.

The Court of Appeals vacated the trial court’s ruling regarding cohabitation, explaining:

[It] was undisputed that Wife’s two adult children reside with her on her property. This implicates the rebuttable presumption contained in Tennessee Code Annotated § 36-5-121(f)(2)(B). The Trial Court found that the adult children did not provide any monetary aid to Wife. The Trial Court, however, did not address whether the services provided by her adult children to Wife contributed to her support or whether the adult children received support from Wife and, if so, whether Wife still showed a need for the alimony, as required by the statute.

For these reasons, the case was remanded to the trial court for a specific determination as to whether Wife overcame the rebuttable presumption created by her cohabitation with her adult children and, if not, to reconsider whether to suspend all or part of Husband’s alimony obligation.

Schrade v. Schrade (Tennessee Court of Appeals, Eastern Section, February 13, 2017).

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

Posted by: koherston | March 3, 2017

Photo of the Week: Sunset in the Mountains

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

Posted by: koherston | March 1, 2017

Is It Time for Tennessee to Adopt a Formula for Alimony?

This article by Robert McCoppin in the Chicago Tribune may be of interest.

Divorces of Rich Raise Eyebrows, but New Laws Affect Those of More Modest Means

For better or for worse, when it comes to divorce “for richer or for poorer” helps determine how much one spouse pays the other.

In an ongoing divorce trial due to resume in mid-December, the multimillionaire founder of Cancer Treatment Centers of America, Richard Stephenson, and his ex-wife Alicia Stephenson are battling over whether she needs more than $400,000 a month to maintain her living expenses.

tennessee alimonyWhile the super-rich duke it out over a standard of living most people will never experience, a shift in Illinois divorce law aims to reduce conflicts in dissolving marriages and establish better equity for former spouses with more modest incomes.

The policy changes are driven by attempts to correct past injustices that often left ex-wives with little money and no viable way to support themselves after years of raising children, divorce attorneys said. They mark the first major revamp of Illinois divorce law in almost 40 years.

“If you’re in a difficult relationship, nothing will eliminate the fact that people don’t get along,” prominent divorce attorney Pamela Kuzniar said. “But because there’s a template for agreement, it helps somewhat to resolve the issues.”

In the wake of the women’s liberation movement, divorce law in Illinois underwent major revisions in 1977, in particular to provide for divorcing wives with little or no education or who dropped out of careers to help their spouses advance. Before that, husbands typically kept most of a divorcing couple’s assets and paid sometimes negligible alimony.

The first comprehensive changes to the law since then took effect this year and reflect other cultural shifts. The new version, for example, swaps out the language “husband and wife” with the gender-neutral “spouses” because of the legalization of same-sex marriage. It also reduces the previous two-year separation period to six months.

But perhaps the biggest change is that the old grounds for divorce — like adultery, bigamy and cruelty — have largely been eliminated, moving Illinois to a no-fault divorce system that generally streamlines the process because no party has to prove fault. Wait time has been reduced to six months in cases where one spouse opposes the dissolution.

The new law also eliminated the words “custody” and “visitation,” replacing them with “parental responsibilities” and “parenting time.” That means parents must propose and accept an agreement on who will have the kids when, and how the parents will jointly make decisions about their children’s education, religion, health and extracurricular activities.

In addition, for the first time, Illinois’ divorce laws have set a formula for determining maintenance, or what used to be called alimony. Previously, divorce attorneys said, there was little consistency in how such payment levels were set, and some downstate judges tended to not award maintenance at all.

Now, for couples making a combined gross income of less than $250,000, the payer — generally the spouse with the higher income — must pay 30 percent of his or her income minus 20 percent of the recipient’s income. So if a husband earns $100,000 a year and his wife $50,000, he would pay her $30,000, minus $10,000, for a total of $20,000.

The duration of maintenance was left to the judge’s discretion before; now it depends on the length of the marriage.

There’s a minimum payment of $40 per month per child, and a maximum of 40 percent of combined income, and judges may still decide whether maintenance is appropriate, or may deviate from the guidelines if they see fit.

Not only has the new law made maintenance more predictable, courts are more willing to grant maintenance, and it goes on for a longer time, divorce attorney Roman Seckel said.

And rather than setting the amount of child support first and then the maintenance to get the desired overall split in income, now judges often set the maintenance by formula, then adjust child support, often downward, to reach the desired balance of income, Seckel said.

But a new formula is due to be set for child support next year as well. Currently, the guidelines call for 20 percent of the noncustodial parent’s net income for one child, 28 percent for two children, 32 percent for three and so on.

In the future, support is expected to be based on the concept of shared income, which some 38 other states use. The formula estimates the amount of money needed to raise a given number of children, then determines what share parents must pay based on their income.

Parents may reduce the amount of support they pay by increasing the amount of parenting time, which may become an even more contentious issue, lawyers warned.

For all the attempts at uniformity, though, the maintenance guidelines apply only to those who toil for combined incomes below $250,000. That means the rich, such as the Stephensons, still must either settle or fight out everything in court.

Divorcees and attorneys still complain about some aspects of the law, but the Illinois State Bar Association called it “improved” overall.

Wealthy spouses fighting over riches attract media attention, but it’s far more common for poor couples to wrestle with the increased expense of maintaining two households instead of one, said attorney Alan Hoffenberg, past president of the Illinois chapter of the American Academy of Matrimonial Lawyers.

“It’s more than a rude awakening. It’s sometimes devastating,” he said. “It’s hard for the breadwinner to understand why they have to pay a substantial portion of their income to their spouse. That’s why blue-collar cases are so difficult, because there’s just not enough money to go around.”

Under past changes in the law, fathers have had to pay more while also losing custody of their children, Hoffenberg said. Now, the law provides for more collaborative parenting, and more experts are recognizing that children need both parents, he said.

“The new act goes a long way to remove a lot of the acrimony in custody disputes,” he said. “The pendulum is swinging back in a fairly good way.”

In general, fewer marriages are ending up in divorce court. From their peaks in the 1970s, marriage rates fell substantially in Illinois through 2013, the most recent year for which statistics are available, according to the Illinois Department of Public Health. Divorce rates have similarly dipped, though less dramatically.

K.O.’s Comment: I am in favor of anything that brings more consistency and predictability to alimony rulings in Tennessee. On the other hand, I have long opposed one-size-fits-all approaches to family-law issues. I could support some advisory guidelines that establish a range for alimony awards provided they allow for deviations based on the circumstances. Something like that could encourage more uniformity across the state while still allowing trial courts the discretion they need to tailor their decisions to the specific facts of individual cases. What do you think? Share your thoughts by leaving a comment below.

Source: Divorces of Rich Raise Eyebrows, but New Laws Affect Those of More Modest Means (Chicago Tribune, November 28, 2016).

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

knoxville tn alimonyFacts: Husband and Wife were married for approximately 37 years.

Husband is a dentist practicing in both Tennessee and Indiana. Wife worked in Husband’s dental office for much of the marriage, but she was working as a legal secretary at the time of divorce.

After dividing the marital property, the trial court ordered Husband to pay Wife $6000 per month for 10 years as alimony in solido, explaining:

The Court has considered that Husband’s earning capacity is greater than Wife’s. He will still have a thriving dental practice while her employment will still be limited to a legal secretary. Husband can still remain in his profession; Wife cannot. The marriage was of long duration and both parties are approaching 60. . . . Until [Husband’s] of adulterous affair, the parties maintained a comfortable living condition, although it might have been beyond their means. Both parties contributed equally to the acquisition of the [marital] estate. The fault in the marriage is entirely with Husband. The Court has reviewed the financial records of Husband, including his [tax] returns. The most important factor to be considered is [Husband’s] ability to pay support. The Court finds that [Husband’s] income ranges from $120,000 to $150,000, which means he has the ability to pay.

Husband appealed.

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

Tennessee Code Annotated § 36-5-121(i) requires trial courts to consider several factors when determining whether alimony is appropriate and in determining the nature, amount, duration, and manner of payment. It is well-settled that the economically disadvantaged spouse’s need and the obligor spouse’s ability to pay are the two most important factors. The economically disadvantaged spouse’s need, however, is a threshold consideration.

While the trial court analyzed Husband’s ability to pay, it did not assess Wife’s need for alimony. The Court found this was error:

Although Husband’s ability to pay is an extremely important factor for the trial court to examine, is not the most important consideration in determining whether the trial court’s alimony award is appropriate. The trial court’s statement to the contrary is in error. As we have noted, Wife’s need should be the threshold consideration in determining whether alimony should be awarded and end shaping the type and amount of the award. Here, however, the trial court’s findings do not appear to give any consideration to this factor, especially as would inform its decision to award alimony in solido as opposed to other forms of support and to give Wife an effective award of $720,000. Given the absence of proper findings with regard to Wife’s needs, we find it appropriate to vacate the alimony award and remand the issue to the trial court for reconsideration in light of the factors presented in Tennessee Code Annotated § 36-5-121(i), including Wife’s needs.

Thus, the alimony award was vacated and remanded for reconsideration.

K.O.’s Comment: It is sometimes overlooked that that “economically disadvantaged spouse” is a term of art referring to a spouse who suffered “economic detriment” for the sake of the marriage or the family. It does not include a spouse who simply earns less than than other spouse when the lower-earning spouse did not subordinate his or her career to benefit the marriage or the family. See, e.g., McKee v. McKee.

Bewick v. Bewick (Tennessee Court of Appeals, Middle Section, February 13, 2017).

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

Posted by: koherston | February 24, 2017

Photo of the Week: Tiny Spider

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

Facts: Mother and father are the never-married parents of Child. A parenting plan was entered designating Mother as the primary residential parent and granting Father 103 days of parenting time.

Several years later, Father petitioned to modify the parenting plan. Mother counter-petitioned to modify the parenting plan.

knoxville child custodyThe trial court heard proof that both parties failed to adhere to the parenting plan. For example, Father was allotted 2-3 telephone calls with Child each week, but those calls did not always occur. There was evidence that Mother traveled with Child to Canada for a weekend without notifying Father.

After hearing, the trial court found a material change in circumstance sufficient to change custody. After considering Child’s best interest, the trial court entered a parenting plan changing the primary residential parent to Father and granting Mother 130 days of parenting time.

Mother appealed.

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

To modify a parenting plan, Tennessee courts must engage in a two-step analysis. The threshold issue is whether a material change in circumstance has occurred since the court’s prior custody order. Only after it is determined that a material change in circumstance has occurred must the court determine whether modification is in the child’s best interest.

Although there are no hard and fast rules for determining when a material change in circumstance has occurred, factors for consideration include

  • whether the change occurred after entry of the order sought to be modified,
  • whether the change was known or reasonably anticipated when the order was entered, and
  • whether the change affects the child’s well-being in a meaningful way.

A material change in circumstance regarding a change to the parenting schedule is a different concept from a change in circumstance with respect to a change of custody. The material change necessary to reconsider the parenting schedule is considered a “very low threshold” while the change necessary to reconsider the primary residential parent designation is considered a “more stringent standard.”

For example, to modify the parenting schedule, merely showing that the existing arrangement has proven unworkable is sufficient to satisfy the material change of circumstance test.

After reviewing the record, the Court concluded the proof did not establish a material change of circumstance sufficient to change custody:

The specific difficulties cited by the court here, however, are not of such a character or magnitude that, standing alone, would support a change in the primary residential parent; rather, they relate directly to the workability of the parenting plan and are more appropriately addressed by modifying the plan. . . .

No specific evidence relating to whether the changes in circumstances affected [Child’s] well-being was presented . . . .

[T]he matters cited by the court or more appropriately addressed in modifying the parenting schedule, rather than changing the designation of primary residential parent. The evidence preponderates against the court’s finding that Mother’s trip to Canada or the difficulties with Father’s phone visitation constituted a material change sufficient to modify custody.

Thus, the trial court’s judgment changing the primary residential parent designation was reversed.

K.O.’s Comment: Lawyers and judges often confuse the material change standards needed to modify either the parenting schedule or the primary residential parent designation. For some recent examples, see Newberry v. Newberry and Williamson v. Lamb.

To modify child custody, a.k.a. the primary residential parent designation, one must travel under the standard found in Tennessee Code Annotated § 36-6-101(a)(2)(B). This is considered the more stringent standard because changing the primary residential parent is a comparatively more drastic remedy.

To modify other parts of a parenting plan, such as the parenting scheduling, one must travel under the standard found in Tennessee Code Annotated § 36-6-101(a)(2)(B). As mentioned above, this is considered a very low threshold.

Here’s a handy slide I use each year in my Tennessee Family Law Update seminars:

knoxville divorce

Also, lawyers often overlook the necessity of proving how the change in circumstance is affecting the child’s well-being in a meaningful way. For example, see Kelly v. Kelly.

Remember, parenting plans are not modified “just because.” The lawyer must prove, and the trial court must find, a material change in circumstance sufficient to allow the court to consider the type of relief the lawyer requests. As part of this, the lawyer must show a significant impact on the child. If the lawyer glosses over step one (material change) on his or her way to step two (child’s best interest), the lawyer invites reversal on appeal.

In re Braylin D. (Tennessee Court of Appeals, Middle Section, February 7, 2017).

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

tennessee divorceFacts: Mother and Father are the unmarried parents of Child.

Within a week of Child’s birth, Father filed a petition to establish paternity and a parenting schedule. An agreed temporary parenting plan was entered.

Later, disputes regarding parenting and contempt landed the parents back in court.

The only issues I find noteworthy are the trial court’s decision (1) to not require Father to pay child support via a wage assignment, and (2) to change Child’s last name to Father’s last name.

Mother appealed.

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

Wage assignment and child support. Mother argued the trial court erred in failing to order Father to pay child support by wage assignment.

Tennessee Code Annotated § 36-5-501 requires that a wage assignment for the payment of child support is required in every case regardless of whether child support payments are in arrears. There are two exceptions to this rule:

  • if there is a written finding that it is not the child’s best interest to require a wage assignment, or
  • if there is a written agreement by both parties that provides for alternative arrangements, which agreement must be reviewed and approved by the court.

The Court agreed with Mother that it is error not to require an income assignment from Father:

In the present case, there is no written agreement between the parties for alternative arrangements for the payment of child support. As to the first exception, the trial court’s order does not contain written findings setting forth good cause to excuse Father from wage assignment.

Thus, the trial court’s decision not to order Father to pay child support by wage assignment was reversed.

Changing Child’s last name. Mother argued the trial court erred in changing Child’s surname to Father’s surname.

Tennessee Code Annotated § 68-3-305(b)(1) requires that the last name of a child born to an unmarried mother shall be the surname of the mother, the mother’s maiden surname, or a combination of those two surnames. A child’s surname does not change as the result of a paternity determination unless the court so orders.

Tennessee courts should not change a child’s surname unless the change promotes the child’s best interest. Among the criteria for determining whether changing a child’s surname will be in the child’s best interests are:

  • a child’s preference,
  • the changes potential effect on the child’s relationship with each parent,
  • the length of time the child has had its present surname,
  • the degree of community respect associated with the present and proposed surname, and
  • the difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed surname.

The parent seeking to change the child’s surname has the burden of proving that the change will further the child’s best interests. The amount of proof required to justify the change is not insubstantial. Minor inconvenience or embarrassment is not sufficient. Likewise, the mere preference of a parent is not a reason to justify a name change under the statute.

At the trial, Father argued, “I want my daughter growing up having my last name, you know, having, you know, relation to the last name. It doesn’t make sense to me why [Mother] wouldn’t want her daughter to have her father’s last name, but her sisters’ dad’s last name.”

The trial court found Mother’s history of thwarting Father’s parenting time was also a consideration, as well as her hostility towards Father and his family. Based on this history, the trial court reasoned that changing Child surname would strengthen the relationship between Father and Child.

The Court rejected this reasoning, explaining:

[T]he sole reason for the trial court’s decision to change the child’s surname to Father’s surname was its concern over Mother’s previous attempts to thwart the relationship between Father and child and its belief that changing the child’s surname would somehow strengthen the relationship between the child and Father. The burden of proof was upon Father to support a finding that a change of surname would serve the best interest of the child. We find no evidence in the record to support a conclusion that changing the child’s surname to Father’s surname would improve the relationship between Father and the child.

Thus, the trial court decision to change Child’s last name to Father’s last name was reversed.

Howell v. Smithwick (Tennessee Court of Appeals, Eastern Section, February 1, 2017).

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

Posted by: koherston | February 17, 2017

Photo of the Week: Cicada Emerging

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

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