As always, I recommend you start drinking now. You’re going to need it by the end.

It’s the most dreadful time of the year—when I must sift through the detritus left by the Tennessee General Assembly to inform you of what (mostly) unnecessary, ill-conceived, or duplicative laws those who represent us passed that affect family-law attorneys.

Before we get to that, let’s start with some good news for a change! Here’s a list of some bills that failed this year, buying us at least one more year in our race to the bottom (watch out, Mississippi!):

• House Bill 800/Senate Bill 1216 was Tennessee’s latest “Don’t say gay” bill. It would’ve banned “textbooks and instructional materials or supplemental instructional materials that promote, support, or address lesbian, gay, bisexual, or transgender issues or lifestyles. Out of sight, out of mind!
• House Bill 233/Senate Bill 562 would have recognized common-law marriage for opposite-sex couples as an “alternative form” of marriage, with a certificate but no formal license, and limited to one man and one woman.
• House Bill 2633/Senate Bill 2777 would have explicitly allowed teachers to disregard students’ pronouns and immunize them from lawsuits arising from their refusal to address students with pronouns other than those aligned with their gender assigned at birth.

All these bills failed! (For now.) Hooray!

But guess what passed? Public Chapter 908 allows people who believe, despite all available evidence, that Ivermectin can treat COVID-19 to get it without a prescription at a pharmacy instead of a local feed store. What if the dupes are harmed by taking a drug that does nothing to treat COVID-19? The law says they cannot sue the pharmacist forced by this law to give it to them. I’m sure this will end well.

As you can see, our legislators are very serious people working on solving very serious problems. Anyone who thinks they are culture war performance artists playing to our society’s worst elements is mistaken.

So what have they done to Tennessee family law this year? First, drink! Then, read on!

Child’s best-interest factors. Public Chapter 671 added this new factor to the best-interest factors found in Tennessee Code Annotated § 36-6-106(a): “whether a parent has failed to pay court-ordered child support for a period of three years or more.” This became effective on March 18, 2022.

K.O.’s Comment: Does the three-year minimum suggest that courts cannot consider failing to pay court-ordered child support for less than three years? Why include a temporal limitation at all? Isn’t this duplicative of several other factors, e.g., each parent’s past performance of parenting responsibilities, a parent’s disposition to provide the child with necessaries, etc.?

Mandatory mediation in divorces. Public Chapter 697 amends Tennessee Code Annotated § 36-4-131, effective July 1, 2022, to allow the court to order that mediation occurs via videoconference “when appropriate.”

Property division. Effective March 31, 2022, Public Chapter 762 changed Tennessee Code Annotated § 36-4-121 to:

• explicitly state that courts must divide marital debt along with marital assets;
• define “marital debt” as all debts incurred by either spouse during the marriage, including debt for attorney’s fees and unpaid attorney’s fees;
• define “separate debt” as all debt incurred by either spouse before the marriage;
• require courts to consider these factors when allocating marital debt:
  • the debt’s purpose;
  • who incurred the debt;
  • who benefited from the debt; and
  • who is best able to repay the debt;
• require courts to consider these factors when allocating debt for unpaid attorney’s fees:
  • the amount of attorney’s fees and expenses incurred by each party;
  • the amount of attorney’s fees and expenses paid by each party; and
  • whether the fees and expenses incurred by each party were reasonable and necessary;
• add a new factor to the equitable division factors requiring courts to consider whether attorney’s fees and expenses were paid from marital property, separate property, or funds borrowed by a party, and whether those fees were reasonable and necessary.

Public Chapter 762 also modified the alimony statute, Tennessee Code Annotated § 36-5-121, to:

• state the purpose of alimony in solido is to enable the court “to equitably divide and distribute marital property, or both”; and
• provide that alimony in solido may be awarded for attorney’s fees after considering the statutory alimony factors, the total amount of fees and expenses incurred by each party, and whether those fees and expenses were reasonable and necessary.

K.O.’s Comment: The new statutory guidance on dividing marital debt reflects longstanding Tennessee caselaw and, therefore, is nothing new. But including “debt for attorney’s fees and unpaid attorney’s fees” in the definition of “marital debt” is a substantive change that contradicts some Tennessee caselaw holding that attorney’s fees incurred by each party are not marital debt. See, e.g., Rountree v. Rountree, 369 S.W.3d 122, 134 (Tenn. Ct. App. Feb. 1, 2012) (“Attorney’s fees incurred by each party are not marital debt.”). That line of caselaw appears to have now been abrogated by statute.

Parentage. Effective May 11, 2022, Public Chapter 1028 creates a new parentage statute requiring both trial and appellate courts to expedite custody proceedings in all contested custody cases involving unmarried parties where a paternity test exists or has been requested from or by the court.

DCS Investigations. When the Department of Children’s Services (“DCS”) receives an allegation of potential child abuse or neglect, Tennessee Code Annotated § 37-1-406 requires them to interview the child, whether at home or school or elsewhere. If a parent refuses access to the child, the juvenile court can order it. Effective April 20, 2022, Public Chapter 849 amended this law in cases where the report of harm was made anonymously. In such cases, the juvenile court can now order a parent to provide DCS access to the child only if DCS presents evidence corroborating the anonymous report.

Severe child abuse, termination of parental rights, and adoption updates. In this year’s version of what is becoming the annual omnibus adoption bill, Public Chapter 937 amends the definition of “severe child abuse” in Tennessee Code Annotated § 37-1-102(b)(27)(C) to add the crime of aggravated sexual exploitation of a minor to the list of crimes that constitute severe abuse (especially aggravated sexual exploitation of a minor was already included, so this adds a lesser included offense). It also cleans up the portion of Tennessee Code Annotated § 36-1-113 that addresses when a parent has standing to terminate the parental rights of the other parent, adds new crimes to the definition of “severe child sexual abuse,” and makes various other technical revisions to parental termination and adoption statutes, including an addition to Tennessee Code Annotated § 36-1-113 clarifying that “resuming or starting visitation or support after the filing of a petition to terminate parental rights or seeking the adoption of the child does not rectify a ground for termination” for abandonment by a putative father, and a new statute that declares all adoption records confidential until 100 years after the adoption was finalized. These changes are effective July 1, 2022.

Child abduction. Public Chapter 767 creates a new statute that only applies if there is a pending custody, parentage, child support, or dependency and neglect proceeding. In such cases, if the noncustodial parent fails to return the child to the custodial parent per the operative court order, then the custodial parent may report the child missing to a law enforcement agency and, if the child has not been returned to the custodial parent within 48 hours, the court may issue an order declaring the child to be in imminent danger of serious bodily injury or death and ordering the noncustodial parent to return the child immediately to the custodial parent. When such an order is issued, the clerk must promptly email it to the law enforcement agency. This became effective April 6, 2022.

K.O’s Comment: I assume the intent of this is to enable a court order to pressure the law enforcement agency to act without delay when the noncustodial parent has removed a child for over 48 hours instead of telling the custodial parent it’s merely “a civil matter” when the noncustodial parent absconds with a child in violation of the court order.

Voluntary Acknowledgment of Paternity. Public Chapter 863 removes the five-year statute of limitations for challenging a voluntary acknowledgment of paternity on the grounds of fraud, duress, or material mistake of fact. This becomes effective July 1, 2022.

Child support after vehicular homicide or aggravated vehicular homicide. Public Chapter 1056 provides that for drunk drivers convicted of vehicular homicide or aggravated vehicular homicide where the deceased victim has a minor child, a court shall determine “reasonable and necessary” child support after considering the financial needs of the child and surviving parent, the standard of living to which the child is accustomed, the child’s physical and emotional condition and educational needs, and other factors. If the drunk driver is incarcerated, they must start paying within one year after their release from prison. If the surviving parent sues the drunk driver for wrongful death, no child support can be ordered.

K.O.’s Comment: (1) The child’s Social Security survivor’s benefits should factor into determining their need. (2) If the drunk driver has assets of any significance, the surviving parent will likely choose to pursue a wrongful death claim instead.

Rules of Evidence. Rule 412(d)(2) was amended to require, in criminal cases involving sex offenses, that a defendant’s motion to offer reputation or opinion evidence about the victim’s conduct must now be filed under seal.

Rules of Civil Procedure. Rules 5B and 11.01 were changed to allow an attorney’s signature on an electronically filed pleading to be in the form of s/________ or a digital representation of the signature, like the practice in federal courts.

Rule 45 was changed to allow clerks to issue subpoenas via paper documents or electronic means.

Rule 58 was changed to clarify that an order is effective on the date the clerk marks it as filed for entry.

Rules of Appellate Procedure. The Supreme Court changed the length restrictions on various appellate filings and briefs from page limitations to word limitations. Briefs are now limited to 15,000 words, reply briefs to 5000 words, and amicus briefs to 7500 words.

Note that the word count only applies to the statement of issues, statement of facts, argument, and conclusion. Words in the cover page, table of contents, table of authorities, certificate of compliance, attorney’s signature block, and certificate of service do not count toward the 15,000-word limit. Details can be found in Rule 30, although Rules 9, 10, 11, and 27 were also amended to follow the changes to Rule 30.

All changes to the rules of evidence and procedure become effective July 1, 2022.

Constitutional rights. Finally, Tennessee family-law attorneys should review the recent U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization and understand its impact on Tennesseans. This opinion removed a woman’s constitutional right to an abortion, which right was previously recognized as part of the right to “liberty” under the Fourteenth Amendment to the U.S. Constitution. This same liberty interest has been the rationale for the Supreme Court striking down laws:

• requiring involuntary sterilization,
• interfering with who people could choose to live with or marry, and
• criminalizing contraception and same-sex intimacy.

In the near term, abortion will be banned in Tennessee, which has a “trigger law” banning nearly all abortions essentially from the moment an egg is fertilized, with no exceptions for rape or incest. It takes effect 30 days from the Supreme Court’s decision. Tennessee’s Attorney General, Knoxville’s Herbert Slatery III, filed an emergency motion before the Sixth Circuit Court of Appeals seeking to ban abortion immediately in Tennessee. Yesterday, the Sixth Circuit granted the motion.

In the longer term, the opinion threatens other fundamental rights that Tennesseans enjoy. The Dobbs opinion holds that the Fourteenth Amendment only protects unwritten rights that were understood to exist in 1868 when it was ratified. (Reminder: women could not vote in 1868.) This logic means other constitutional rights such as the right to access birth control, the right to engage in same-sex intimacy, and the right to interracial or same-sex marriage—all of which rely on the same liberty interest, and none of which were understood to exist as unwritten rights in 1868—are at risk. In a concurring opinion, Clarence Thomas explicitly calls for those cases to be reconsidered after Dobbs.

People in interracial or same-sex marriages and same-sex parents may want to consider duplicative legal arrangements to protect themselves. Tennessee family-law attorneys will need continuing legal education seminars to help us assist our clients in that regard.

Beyond that, we must vote with the understanding that fundamental rights are on the ballot.

Protection from government overreach is on the ballot.

Privacy is on the ballot.

Bodily autonomy is on the ballot.

The right to marry who you want is on the ballot.

The right to access safe, effective birth control is on the ballot.

The right to be left alone is on the ballot.

It’s hard to comprehend how this is happening in 2022, but we must get beyond the shock, come together, and vote like our freedom depends on it. Because it does.

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