Posted by: koherston | June 16, 2017

Photo of the Week: Peekaboo!


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

Posted by: koherston | June 14, 2017

Who Is at Risk for a Gray Divorce? It Depends

Two law professors, Naomi Cahn and June Carbone, recently wrote about the latest research studying “gray divorces,” i.e., divorces for those over 50, in an article for the Institute for Family Studies.

Who Is at Risk for a Gray Divorce? It Depends

Recent headlines about increasing gray divorces are scary, such as this one from the Pew Research Center, “Led by Baby Boomers, divorce rates climb for America’s 50+ population,” or this one, “‘Gray divorce’ affects millennials as parents split,” or this one, “Surviving Divorce after 50.”

But what’s really behind the so-called gray divorce phenomenon?

For the two of us, this is a personal issue. We’ve each been married for more than 30 years, and we are each (gulp!) over the age of 50, with college-age or older children. As we contemplate our empty nests and these reports, it is natural to wonder: Are our marriages in trouble? What is our own risk of divorce?

As a recent IFS post reported, “a sizable share of gray divorces (34 percent) occur among couples that have been married for over 30 years, and one-in-10 couples (12 percent) have been married for more than 40.” Yet, as that post also noted, there is a lot of nuance in the gray divorce statistics.

For our own comfort, and for the comfort of our Millennial children and their spouses and significant others—and for June’s (almost) one-year-old grandchild— we wanted to pull out some of the more important divorce trends. As we found when looking through a range of studies, divorce risk is not evenly spread among those aged 50 and older. Depending on your demographic, you may or may not be comforted by these trends.

First, some good news for everyone: the divorce rate is still not all that high for those over the age of 50. Yes, it has doubled over the past 30 years: in 1990, five out of every 1,000 married people divorced, and in 2010, it was 10 out of every 1,000 married people. And yes, the rate has risen much more dramatically for gray Americans than for those under 50; in fact, there was a decline in the rate for those between the ages of 25-39. But the divorce rate for those over 50 is still half the rate for those under 50.

Second, the triggering events for gray divorce are not what one might assume. One New York matrimonial lawyer who experienced a gray divorce himself speculated:

A lot of marriages died a long time ago, but because of the shame involved, in a family people often stuck together for the children. Now the children are grown up. Viagra is another reason—men are able to satisfy younger women. And people are living longer and they can get out and still have a life.

But that account isn’t necessarily accurate, according to research from a 2016 paper from the National Center for Family & Marriage Research (NCFMR) at Bowling Green State University, which also wrote the definitive paper on “The Gray Divorce Revolution” in 2012. The authors found that Baby Boomer divorce is not related to children leaving home, the retirement of either spouse, or even chronic illness; nor is it related to education—a result that surprised us, given our work. While for younger couples, the better educated are substantially less likely to divorce than those without college degrees, lack of education does not play the same role for those over 50.1 (Note: the 2012 research from the NCFMR, with a different dataset, does show a lower rate of divorce for those with a college education than without).

To tease out which variables are correlated with gray divorce, the 2016 study looked through the marital histories of more than 5,000 couples, where one spouse was born before 1960, using a longitudinal study of a nationally representative, continuous cohort, with interviews conducted every two years. They found that several factors were related to staying married. Couples who owned property together were less likely to divorce. And wealthy couples had a higher probability of staying together: “The odds of divorce were roughly 38 percent lower for those with over $250,000 in assets compared with couples whose assets ranged from $0 to 50,000.” The authors noted that “financial security” was a “protective factor” against a later-in-life divorce. The NCFMR’s 2012 research also noted the importance of economic resources.

Moreover, among these older couples, the 2012 study found that the divorce rate for those in a first marriage was less than half that for those who had remarried. Consider that although marriages of 40 years or more were the least likely to end, even among these couples, gray divorce was still almost three times higher for remarried couples than for first-married couples. The authors also believed that marital quality, measured by the couples’ evaluation of how they allocated their free time together and their level of enjoyment of that time, was a significant factor, although their data on this issue was limited.

These statistics don’t mean that gray divorce isn’t a problem. Those who divorce at older ages, like those who divorce at younger ages, tend to have less wealth than those who remain married, with the gray divorced having only one-fifth of the assets of gray married couples. Compared to married couples, gray divorced women have relatively low Social Security benefits and relatively high poverty rates. While gray married, remarried, and cohabiting couples have poverty rates of four percent or less, 11 percent of men who divorced after the age of 50 were in poverty, and 27 percent of the women were in poverty. And as Naomi and her co-author, Amy Ziettlow, have recently written, now that family structures have become increasingly complex, so, too, has elder care.

Of course, these statistics also don’t mean that our marriages will last forever. Statistics can only give a general picture, and can’t tell us whether our husbands will leave us—or whether we will leave them. Relationship quality, such as fostering “friendship” over the years, is also key to lasting marriages.

But looking at the numbers more carefully can help us assess our likelihood of getting divorced, and help us understand policy choices for older Americans. In light of the role of financial security, programs that enhance economic opportunities throughout the life cycle and lead to the accumulation of assets—programs that are productive under any measure—might also help with the gray divorce rate itself and with managing the consequences.

Source: Who Is at Risk for a Gray Divorce? It Depends (Institute for Family Studies, May 24, 2015)

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

Posted by: koherston | June 12, 2017

Tennessee Family Law Legislative Update 2017

tennessee family lawHello, friends! It’s that time of year again—time to review how our legislators made Tennessee family law worse than it was this time last year.

First, let’s all take a minute to chug a jar of East Tennessee moonshine to prepare ourselves for what’s to come.

OK, now that we’re sufficiently numb, let’s get started. Hit us with your best shot, Tennessee General Assembly!

Child support. Public Chapter 145 easily wins the contest for the worst family-law legislation of the year. It lowers the mandatory interest rate on judgments for child-support arrearages to anywhere from zero to no more than 4%. Guess which non-child-support judgments automatically carry a higher interest rate in Tennessee?

tennessee child support

The worst part about this is the argument the bill’s proponents used to give this gift to deadbeat parents, i.e., that disincentivizing the prompt payment of child support will somehow encourage the prompt payment of child support.

You see that, right? C’mon—you don’t have to be some fancy-pants lawyer to see how that makes perfect sense!

Applying this same logic to other issues, expect our legislators next year to reduce the penalties for repeat drunk drivers because they believe doing so will somehow encourage repeat offenders to change their ways and start driving sober.

This law went into effect on April 17, 2017. For a more detailed analysis of this embarrassment, read this.

In another gift to deadbeat parents, Public Chapter 419 effectively provides a five-year limit on child-support arrearages. Specifically, it prevents a trial court from awarding retroactive child support for more than five years from the date the action to recover child support is filed unless the custodial parent can prove “good cause” for why the child-support award should go back more than five years. It also permits the court to award less than five years if it wants.

Public Chapter 300 allows the state to seize up to 50% of an inmate’s commissary account to satisfy a judgment for a child-support arrearage. This law went into effect on May 5, 2017.

Property division. Public Chapter 309 adds a new factor courts should consider when making an equitable division of marital property. Candidly, this new statutory factor is so poorly written that I’m not 100% sure exactly what it does. Here’s what it says:

In determining the value of an interest in a closely held business or similar asset, all relevant evidence, including valuation methods typically used with regard to such assets without regard to whether the sale of the asset is reasonably foreseeable. Depending on the characteristics of the asset, such considerations could include, but would not be limited to, a lack of marketability discount, a discount for lack of control, and a control premium, if any should be relevant and supported by the evidence.

Although one cannot be certain because of its incoherence, I assume the drafter’s intent is to reverse the caselaw finding error when courts apply a discount for lack of marketability of shares in a closely-held corporation when there is no evidence that a sale of the shares is necessary, desirable, or intended. See, e.g., Barnes v. Barnes.

Of course, the same caselaw applies to the valuation of real property, i.e., there is no discount for the cost of sale if there is no evidence a sale is contemplated. Rather than applying the same principle to real property — which is owned by most divorcing parties — the legislature reserves this discount only for owners of closely-held corporations. I wonder why.


Juvenile Court. Public Chapter 263 updates the list of information that must be included in petitions filed in juvenile courts.

Public Chapter 292 adds the commission of trafficking for commercial sex acts to the definitions of child sexual abuse and severe child abuse.

Tennessee Rules of Appellate Procedure. Several amendments to the rules of appellate procedure go into effect on July 1, 2017. The two most notable are:

  • Tenn. R. Civ. P. 4(a) now provides that a notice of appeal is filed with the appellate court clerk, not the trial court clerk.
  • Tenn. R. Civ. P. 6 now requires the appellant to pay a filing fee to the appellate court clerk. It also disposes of the former practice of requiring a cost bond on appeal.

Tennessee Rules of Evidence. A new Advisory Commission Comment to Rule 611 allows trial courts to permit a witness to have a support animal, toy, or support person present when testifying if the witness is at risk for being unable to communicate effectively without it.

Supreme Court forms for uncontested divorces. The Supreme Court made minor stylistic changes to the forms pro se litigants can use for agreed divorces without children.

Unless noted otherwise above, these new laws and rule changes go into effect July 1, 2017.

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

Posted by: koherston | June 9, 2017

Photo of the Week: Smoky Mountain Water


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

Facts: During this 5 ½ year marriage, Husband created a revocable trust into which several pieces of real property were transferred. Wife signed warranty deeds whereby she conveyed any marital interest she had in the properties to Husband as trustee of the Trust. Husband designated Wife and her children as beneficiaries of the Trust and named Wife as successor trustee.

download (2)Before the Trust was created, Husband and Wife had a conversation about creating the Trust. Wife recorded the conversation and introduced a transcript of the recording as an exhibit at the trial. The parties began by discussing the issues of distrust with each other and agreeing that they intended to stay married. The discussion then turned to the creation of the Trust to protect the properties from potential lawsuits connected to Husband’s land survey business. The recording did not indicate that the parties discussed divorce issues related to the division of the properties transferred into the Trust.

Husband testified the Trust was created to protect his assets in case of a divorce.

Wife admitted signing the trust agreement and the accompanying warranty deeds but said she did not know that she was conveying any marital interest she might have had in the properties. Wife explained she signed the documents because she “took [Husband] at his word” and believed that the Trust was created to protect his personal assets from potential lawsuits from third parties.

The trial court concluded that the parties held different understandings about the purpose of the Trust. Thus, there was insufficient mutual assent for the parties to have a meeting of the minds and, as a result, there was not an enforceable postnuptial agreement.

The trial court divested the Trust of the properties and reverted the titles of those properties to the way they existed prior to the creation of the Trust. The trial court then divided the marital estate 50% to each party.

Husband appealed.

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

Spouses or prospective spouses may enter into various types of agreements, including prenuptial agreements, reconciliation agreements, and postnuptial agreements.

Prospective spouses execute prenuptial agreements in contemplation of marriage, whereas reconciliation agreements and postnuptial agreements are entered into by spouses after marriage.

Spouses execute reconciliation agreements after a separation or the filing of a complaint for divorce. Postnuptial agreements, on the other hand, are entered into before marital problems arise.

Postnuptial agreements are interpreted and enforced the same as any other contract.

The principle of contract law is that most contracts can be expressed, implied, written, or oral. Valid, enforceable contracts require a meeting of the minds, adequate consideration, and sufficient definiteness to be enforced.

There must be mutual assent to a contract in order for the contracting parties to have a meeting of the minds. If there is insufficient mutual assent, no contract exists.

The Court of Appeals agreed there was no postnuptial agreement:

In order for an enforceable written postnuptial agreement to exist in the current case, Husband and Wife must have had a meeting of the minds regarding creation of the Trust as a postnuptial agreement. The trust documents neither reference a postnuptial agreement nor do they discuss divorce and separation issues pertaining to the division of the real properties transferred into the Trust. The trust agreement appoints Husband as the sole trustee and grant him the power to pay himself, or pay for his benefit, “as much of the net income and principal from the Trust as [he] shall request.” Husband also has the power, as trustee, to dispose of, by sale or other means, any properties transferred into the Trust. Thus, there is no guarantee that any assets would remain in the Trust until Husband’s death because he could have, as the trial court found, “done away with all assets of the Trust and attempted to take possession of the Trust property or proceeds and transferred them to himself in his individual capacity.” The record does not reflect that the parties discussed or considered this possibility before Husband created the Trust. In light of these facts and the parties’ differing views of the purpose of the Trust, there was insufficient mutual assent to form a contract.

Thus, the trial court’s judgment that there was no enforceable oral or written postnuptial agreement was affirmed.

K.O.’s Comment: Congratulations to my colleague, Mandy Hancock, Esq., for her successful representation of Wife in this matter.

Ogle v. Duff (Tennessee Court of Appeals, Eastern Section, May 24, 2017).

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

Facts: Father and Mother divorced in 2011. The trial court approved their marital dissolution agreement (MDA) that included the following fee provision:

In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting the action.

The MDA also incorporated the terms of the parties’ agreed parenting plan, which includes provisions related to child support and assigning responsibility for the children’s uncovered medical expenses.

Postdivorce litigation ensued on several issues, including Mother’s request for reimbursement of Father’s portion of the uncovered medical expenses for their three children.

The trial court awarded a judgment against Father for reimbursement of the children’s uncovered medical expenses in the amount of $26,096.50. Under the MDA, Mother was also awarded a judgment for her attorney’s fees in the amount of $19,870.

Father appealed to the Court of Appeals, which affirmed the trial court’s judgments but declined to award Mother her attorney’s fees on appeal.

Mother appealed.

On Appeal: The Tennessee Supreme Court reversed the denial of an award of attorney’s fees to Mother.

Mother argued the Court of Appeals lacks the discretion to deny attorney’s fees to prevailing parties when there is a contract between the parties entitling the prevailing party to such fees.

Tennessee has long followed the “American Rule” with regard to attorney’s fees. This rule provides that a party in a civil action may recover attorney’s fees only if a contractual or statutory provision creates a right to recover attorney’s fees or some other exception applies. Otherwise, litigants are responsible for their own attorney’s fees.

tennessee attorney's feesOne of the most common exceptions to the American Rule involves contracts that contain provisions expressly permitting or requiring the prevailing party to recover its reasonable attorney’s fees incurred to enforce the contract.

A marital dissolution agreement is a contract entered into by spouses in contemplation of divorce. As a contract, a MDA generally is subject to the rules governing construction of contracts. A MDA may include enforceable contractual provisions regarding an award of attorney’s fees in postdivorce legal proceedings.

Parties to postdivorce proceedings may also request an award of attorney’s fees on statutory grounds. Three commonly used statutes are Tennessee Code Annotated § 27-1-122 (frivolous appeals), Tennessee Code Annotated § 36-5-103(c) (enforcing orders for alimony or child support, or cases about child custody or visitation), and Tennessee Code Annotated § 36-6-108(i) (parental relocation), all of which give courts the discretion to award attorney’s fees.

The same is not true when the parties to postdivorce litigation have a MDA that contains a mandatory fee-award provision. It is well-settled that parties are contractually entitled to recover their reasonable attorney’s fees when they have an agreement that says the prevailing party in litigation is entitled to recover fees. In such cases, the trial court does not have the discretion to set aside the parties’ agreement and supplant it with its own judgment. The sole discretionary judgment the trial court may make is to determine the amount of attorney’s fees that is reasonable under the circumstances.

The Supreme Court held the same analysis applies to appellate courts:

A marital dissolution agreement is a contract and as such is subject to the rules governing construction of contracts. Absent fraud, mistake, or some other defect, our courts are required to interpret contracts as written, giving the language used a natural meaning. This axiomatic rule does not change or lose its force because the parties to an agreement are before an appellate court. . . .

It necessarily follows that if an agreement is valid and enforceable, it must be enforced as written regardless of whether the parties are before a trial court or an appellate court. Accordingly, we hold that the Court of Appeals has no discretion whether to award attorney’s fees when the parties have a valid and enforceable marital dissolution agreement which requires an award of reasonable attorney’s fees to a prevailing or successful party.

Applying this holding, the Court ruled that Mother was entitled to recover attorney’s fees on appeal:

[B]ecause [Mother] was the prevailing party at both the trial and appellate levels, the parties’ MDA entitles her “to a judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting the action” in each of the proceedings.

Thus, the case was remanded to the trial court to enter an award for the reasonable attorney’s fees Mother incurred both before the Court of Appeals and the Supreme Court.

Eberbach v. Eberbach (Tennessee Supreme Court, May 23, 2017).

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

Posted by: koherston | June 2, 2017

Photo of the Week: Smoky Mountain Sunrise


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

Facts: Mother and Father divorced in 2012. Their parenting plan designated them as “co-primary residential parents” of their two children, and they shared equal parenting time. The parenting plan provided that Father is designated the primary residential parent for purposes of federal and state statutes.

Father remarried and had another child. Mother moved in with the children’s female pediatrician.

tennessee child custodyBecause of ongoing problems complying with their parenting plan, Mother petitioned to modify the parenting plan and be designated the primary residential parent. Father counter-petitioned for the same designation.

The trial court found the current parenting plan was not working in the best interest of the children. Specifically, the parents were constantly arguing over parenting time, the children’s activities, and the other parent’s failure to communicate with or consult the other parent regarding decisions about the children’s educational, medical, or extracurricular activities.

The trial court also observed that Mother was living with the children’s female pediatrician, commenting:

Dr. Jones has no legal obligation to continue to support the mother and the children and should the relationship sour or something happened to Dr. Jones, the mother and the children would be without a home.

The trial court designated Father as the primary residential parent and awarded frequent parenting time to Mother.

Mother appealed.

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

Tennessee Code Annotated § 36-6-402(4) defines the primary residential parent as “the parent with whom the child resides more than 50% of the time.”

When parents share equal time, neither parent meets the statutory definition of a primary residential parent.

Even though there may be no primary residential parent in fact, Tennessee Code Annotated § 36-6-410 states that the designation of a primary residential parent is necessary “solely for the purpose of” compliance with state and federal statutes and insurance policies that require a determination of “custody.”

The primary residential parent designation in equal-time cases is significant because it establishes the standard for determining whether a material change exists to modify the parenting plan.

When a modification changes the primary residential parent designation, the material change must satisfy the “more stringent standard” of Tennessee Code Annotated § 36-6-101(a)(2)(B).

When a modification does not change the primary residential parent designation, the material change need only meet the “very low threshold” of Tennessee Code Annotated § 36-6-101(a)(2)(C).

What level of material change is required when, as here, neither parent fits the statutory definition? The Court determined the “very low threshold” applied because Father had the primary residential parent designation solely for purposes of state and federal statutes:

In this case, it appears as though both parties sought to modify the parenting plan to become exclusive primary residential parent, even though there should have been only one primary residential parent named in the first place. This is relevant to our standard of review applied to subsequent modifications. Although the trial court and the parties went along with the questionable notion of “co-primary residential parent,” Father was in fact the primary residential parent because of the language designating him as such for the purposes of [state and] federal statutes. Therefore, we will proceed with our analysis under the view that, rather than changing custody, the trial court simply increased Father’s and decreased Mother’s visitation time.

After applying this standard to the trial court’s findings, the trial court’s judgment was affirmed.

Concurrence: Judge Susano wrote separately to comment on the trial court’s characterization of Mother’s relationship with the children’s female pediatrician:

The majority correctly notes “[t]he trial court also was concerned with Mother’s financial dependence upon Dr. Jones and contrasted that arrangement with Father’s independence and relative stability.” I do not understand why Father’s situation is considered to be more stable than that of Mothers. Both parents appear to be living in stable environments. I don’t believe it is appropriate to speculate how on either situation will last. While Dr. Jones could put Mother and the children out of her house, the stable situation that Father is currently in could change tomorrow. Simply stated, I do not understand why the trial court was critical of Mother’s living arrangement with Dr. Jones.

K.O.’s Comment:  I am a longtime critic of the caselaw giving substantive effect to the primary residential parent designation required by Tennessee Code Annotated § 36-6-410 “solely for the purpose of” certain state and federal statutes. When will this mess get fixed? Click here to read my recent commentary on this subject.

Bell v. Bell (Tennessee Court of Appeals, Eastern Section, May 18, 2017).

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

Facts: After 15 years of marriage, Husband and Wife divorced.

Wife was awarded a mixture of rehabilitative alimony, transitional alimony, and alimony in solido. The alimony in solido award was for Wife’s attorney’s fees and totaled $12,239.29.

tennessee divorceThe trial court granted Husband’s request to pay the alimony in solido in monthly installments of $203.99 over 72 months, but ordered that the judgment “carry the standard 10% interest for judgments.”

Wife appealed, arguing that Husband should have to pay the alimony in solido award in one lump sum rather than over 72 months.

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

Alimony in solido is an award of a definite sum of alimony. It may be paid in installments so long as the payments are for a definite period of time and the sum of the alimony to be paid is ascertainable at the time it is awarded.

An award of attorney’s fees to an economically disadvantaged spouse is usually characterized as alimony in solido.

After reviewing the record, the Court affirmed the installment payments but reversed the 10% interest:

[W]e affirm the trial court’s award in the amount of $12,239.29. In light of [Tennessee Code Annotated § 36-5-121(h)(1)’s] explicit allowance that these payments be made in installments, we reject Wife’s argument that the trial court erred by allowing Husband to make these payments and 72 equal installments over the course of six years.

[Regarding interest], Tennessee Code Annotated § 47-14-122 provides that “[i]nterest shall be computed on every judgment from the day on which the jury or the court, sitting without a jury, returned the verdict without regard to a motion for a new trial.” (Emphasis added.) Courts do not have discretion about whether to award interest on judgment; it is required by the statute.

The statute that addresses postjudgment interest is Tennessee Code Annotated § 47-14-121, which was amended in 2012. Before the amendment, the statute set the rate of interest on judgments at 10% per annum. Starting on July 1, 2012, and continuing to the present time, however, the interest rate on judgments fluctuates and is [published on the administrative office of the courts’ website]. . . .

The trial court filed its order directing Husband to pay Wife’s attorney’s fees as alimony in solido on June 29, 2016. According to the administrative office of the courts’ website, the interest rate applicable to judgments entered between January 1 and June 30, 2016, is 5.50% per annum. Thus, we remand the case to the trial court with directions to modify its order awarding Wife alimony in solido, dated June 29, 2016, to lower the interest rate on the judgment from 10% per annum to 5.50% per annum so that it complies with the version of Tennessee Code Annotated § 47-14-121 applicable at the time of trial.

Thus, the trial court’s award of postjudgment interest was nearly cut in half.

K.O.’s Comment: Family-law attorneys who attended our annual update seminar back in 2012 already know that the interest rate on judgments changed dramatically that year. From that point forward, the interest rate fluctuates every six months. You can always find the current and historical postjudgment interest rates here.

tennessee judgment interest

Cardle v. Cardle (Tennessee Court of Appeals, Middle Section, May 17, 2017).

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


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

This article by Lauren McEwan in The Washington Post may be of interest.

Living together is basically the same as marriage, study finds

It has been long understood that marriage provided more emotional health benefits than cohabiting or dating. But that’s showing signs of shifting.

Young people are choosing to live with their significant others before, or instead of, getting hitched. For “emerging adults,” or those in their 20s, cohabitation may offer the same emotional health benefits as marriage, according to a recent study published by the Journal of Family Psychology.

Using data from the 1997 National Longitudinal Survey of Youth, Sara E. Mernitz and Claire Kamp Dush from Ohio State University looked at what happens when young people cohabitate, transition into marriage or progress from a first to second cohabitation — and how men and women experience these changes differently.

Although there’s a lot of research that examines marriage and health, more broadly, Mernitz said in a phone interview, “we now have more advanced statistical methods that allow us to look at the change as an individual experiences this transition from cohabitation to marriage.”

For some of the people surveyed, living with their partner proved just as beneficial as marriage. “Past studies that compared those that are married and those that are cohabitating always found this sort of marriage benefit,” Mernitz said. “But even when we look at individuals who transition from a current cohabitation into marriage, that transition into marriage didn’t really provide any additional emotional health benefits and we kind of thought it would.”

The most surprising result to Mernitz was that women seem to benefit from cohabitation more than men do. The researchers think it might have something to do with the fact that women and men view living together differently.

Some past research, for example, “has really shown that men are more likely to view cohabitation as a trial run or testing period for marriage and may not be taking it as seriously as women, or at least the women in our study,” Mernitz said.

Although she did add that past research has shown that women don’t like to cohabit for long if marriage isn’t on the horizon.

The older we get, the more important romantic relationships can be for our emotional health. In the study, emotional health was measured by looking at depressive or anxiety symptoms, but not diagnoses of depression. For example, some of the questions were “Have you felt downhearted or blue?” or “Have you felt calm and peaceful?” They found that for those who went from being single to living with a significant other or those who got married without living together first, both setups greatly reduced emotional stress.

The researchers also found that people who moved in with new partners received greater emotional benefits than they’d found in their previous relationships. That could be because people are more selective when entering a second cohabitation.

Basically, everything Beyoncé ever taught you about recovering from a split — “I could have another you in a minute,” or her entire “Survivor” verse — is probably true.

Source: Living together is basically the same as marriage, study finds (Washington Post, December 10, 2015).

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

The Tennessee Alternative Dispute Resolution (ADR) Commission was recently presented with the following question:

Is drafting a marital dissolution agreement or other legal document for presentation to the court by a Neutral in a mediation setting considered “participation as attorney” or is it considered an appropriate memorialization of a settlement agreement under Rule 31?

On April 25, 2017, the ADR Commission answered this question in Advisory Opinion 2017-0002.

But first, let’s review.

Family-law mediators are governed by Tennessee Supreme Court Rule 31. Rule 31 § 10(c)(1) provides that family-law mediators “shall refrain from participation as attorney, advisor, judge, guardian ad litem, master, or in any other judicial or quasi-judicial capacity in the matter in which the Rule 31 ADR Proceeding was conducted.”

Rule 31 Appendix A § 10(a)(1) requires the family-law mediator to (1) request that any settlement agreement “be memorialized appropriately,” and (2) discuss “the process for formalization and implementation of the agreement.”

Finally, Rule 31 § 10(c) says, “The Neutral may assist the parties in memorializing the terms of the parties’ settlement at the end of the mediation.”

Against this background, the ADR Commission determined that family-law mediators can only prepare a “memorandum of understanding” reflecting the terms of the parties’ agreement but the mediator cannot prepare the necessary legal documents for filing with the court:

A Rule 31 Listed Mediator may assist the parties in memorializing the terms of the agreement by preparing a Memorandum of Understanding (“MOU”). A Rule 31 Listed Mediator should not prepare a Marital Dissolution Agreement or other legal document for presentation to the court. If the parties have attorneys, then the attorneys can prepare the paperwork necessary for filing with the court. If the parties do not have attorneys, the parties can prepare the paperwork necessary for filing with the court.

The memorandum of understanding should reflect the terms of the parties’ agreement and state that the parties expect those terms to be reduced to a court order. The parties can then

take the MOU to a lawyer and have the lawyer draft a Marital Dissolution Agreement that uses the MOU and includes additional language prepared by the attorney.

If the parties do not have attorneys and/or they choose to fill out the parenting plan themselves and submit it to the court for approval, the Mediator may discuss with the parties which categories their MOU agreements pertain[] to within the body of the Parenting Plan. . . . If both parties agree on all items in the Parenting Plan, then the parties must reduce that Parenting Plan to a formal Order and that Order must be submitted to the court for approval. A Rule 31 Mediator should not prepare legal documents, such as a Parenting Plan, that can be filed with the court for the parties to a mediation that the Mediator conducted.

K.O.’s Comment: It is not easy to draft a good parenting plan or marital dissolution agreement. I often see ambiguous, confusing, and contradictory agreements drafted by lawyers.

As presently written, Rule 31 forces laypeople — many of whom are poor, some of whom may not even be literate — to draft their own court orders or hire another lawyer (or two) to do it. Is this consistent with the Tennessee Supreme Court’s Access to Justice initiatives?

tennessee mediationIf unrepresented parties hire me as their mediator and the mediation produces an agreement, why shouldn’t they be able to benefit from my skill, knowledge, and experience in drafting the required court orders? How does performing that service remove my neutrality?

Judges, wouldn’t you prefer that attorney-mediators prepare agreed parenting plans and marital dissolution agreements instead of leaving that task to pro se parties?

The rules need to be revised to allow unrepresented parties to receive this necessary service from attorney-mediators.

Source: Advisory Opinion No. 2017-0002 (ADR Commission, April 25, 2017)

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

Posted by: koherston | May 19, 2017

Photo of the Week: Dog Days of Summer


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

Facts: Mother and Father are the divorced parents of Child. This appeal involved several postdivorce disputes, only two of which are noteworthy:

  • the dispute over what constitutes a “day” for child-support purposes, and
  • the trial court’s calculation of Father’s gross income for child-support purposes.

cat child supportRegarding the calculation of parenting time, Father argued the agreed parenting plan entered at the time of divorce was incorrect. It said he has 140 days of parenting time each year. Father argued that the correct amount is 208 days. The trial court disagreed.

Regarding Father’s income for child-support purposes, the proof showed that Father received a piece of real estate as a gift. The trial court determined Father’s gross monthly income to be $8477:

  • farm income: $3500;
  • dividend & interest: $742;
  • capital gains: $1183;
  • annual cash gift: $1166; and
  • gift of real estate: $1886.

Regarding the gift of real estate, Mother’s attorney explained that “the way I came up with $1886 a month is I took a 30-year mortgage on a $400,000 house at 3.25% and put that in his income figure.” The trial court included that amount in its calculation of Father’s gross income.

Father appealed.

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

Determining a “day” for child-support purposes. The Tennessee Child Support Guidelines define “day” as

when the child spends more than 12 consecutive hours in a 24-hour period under the care, control, or direct supervision of one parent or caretaker. The 24-hour period need not be the same as a 24-hour calendar day. Accordingly, a “day” of parenting time may encompass either an overnight period or a daytime period, or a combination thereof.

The Court held the trial court correctly calculated Father’s parenting time:

[W]e conclude that the trial court was correct in counting the period beginning Saturdays at 11:00 a.m. and ending Mondays at 6:00 p.m. as two days rather than three days. Our calculation of the days in this case is as follows:

  • Saturday 11:00 a.m. through Sunday 11:00 a.m. = Day 1
  • Sunday 11:00 a.m. through Monday 11:00 a.m. = Day 2
  • Monday 11:00 a.m. through Monday 6:00 p.m. = 7 hours (not a day)

Father also asserts that his weekly overnight visits . . . that began on Wednesdays at 11:00 AM and end on Thursdays at 5:00 PM should count as two days instead of one day as the trial court held. Again, we agree with the trial court and calculate that time period as follows:

  • Wednesday 11:00 a.m. through Thursday 11:00 a.m. — Day 1
  • Thursday 11:00 a.m. through Thursday 5:00 p.m. — 6 hours (not a day)

Gifts of real estate as income for child-support purposes. The Child Support Guidelines define a parent’s “gross income” to include all income from any source, whether earned or unearned, including, but not limited to,

  • wages,
  • commissions and tips,
  • bonuses,
  • interest income,
  • net capital gains,
  • and gifts that consist of cash or other liquid instruments, or which can be converted to cash.

The Court ruled the trial court erred by including the gift of real estate in Father’s gross income:

[T]he trial court conceded in its findings of fact and conclusions of law that “there is no precedent for whether or not a one-time gift of a home should be considered in the child support calculations under Tennessee’s Child Support Guidelines as interpreted by our appellate courts.” Furthermore, other than the fact that the figures were proposed by Mother’s counsel, is not clear from the record how the trial court settled on a 30-year mortgage, or how it concluded that Father’s loan would be at an interest rate of 3.25%. The Child Support Guidelines allow a court the discretion to average a parent’s income over a period that is proper under the specific facts of a particular issue. However, in this case, we do not construe that principle to extend so far as imputing the value of Father’s home in Virginia into the calculation of his gross monthly income by fashioning a hypothetical mortgage at a speculative interest rate.

Thus, the trial court’s calculation of Father’s gross income to include the value of his home in Virginia was reversed.

K.O.’s Comment: (1) I have litigated the issue of what counts as a “day” for child-support purposes way more than should have been necessary. For whatever reason, this issue often confuses family-law attorneys and litigants. This is the first time I recall seeing the Court break down its calculation on an hour-by-hour basis. Perhaps they, too, are getting tired of explaining this.

(2) Father raised 10 distinct issues on appeal. The Court described it as a “‘throw everything at the wall and hope something sticks’ approach to this appeal, which was largely ineffective . . . .” Bryan Garner, author of The Winning Brief (3d. ed.), eschews this practice, instead recommending that lawyers raise no more than three or four key issues on appeal. If you don’t have a good argument, leave it out. You don’t want the Court to comment on one of your arguments the way they did on one of Father’s in this case: “Father makes absolutely no coherent argument on appeal as to how the trial court erred in awarding Mother attorney’s fees.” Ouch! Better to leave it out.

Sansom v. Sansom (Tennessee Court of Appeals, Middle Section, May 10, 2017).

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

Facts: Mother and Father are the parents of Child. They never married. Child lived with Mother.

The Tennessee Department of Children’s Services (DCS) received a referral alleging that Child had been exposed to drugs.

When Mother appeared in court, she notified the court that she was homeless and without income. After Mother tested positive for methamphetamine, the court placed Child in DCS custody.

After Child was removed from Mother’s custody, DCS approached Father about Child possibly living with him. When he was drug tested, however, Father also tested positive for methamphetamine.

Shortly thereafter, Child — who was three years old at the time — was given a hair follicle drug test and tested positive for methamphetamine. (!!!)

Child was found to be dependent and neglected. A permanency plan was developed that required Father to

  • sign all releases for DCS to obtain information;
  • submit to random drug screens;
  • refrain from being around those who use illegal drugs;
  • attend Child’s medical appointments;
  • show DCS with a valid lease;
  • show DCS with a valid driver’s license;
  • maintain stable housing for six months;
  • maintain contact with DCS;
  • provide proof of legal income; and
  • submit to an alcohol and drug assessment and follow any recommendations.

Father’s first alcohol and drug assessment recommended that he attend five meetings of a chemical dependency support group.

Energy drinks…yeah, that’s the ticket!

Father continued to fail random drug tests after completing the meetings. Father blamed the failed drug tests on Mother breaking into his residence and contaminating his tea with methamphetamine or, alternatively, resulting from his consumption of energy drinks.

Father’s second alcohol and drug assessment recommended no treatment at all.

A year later, mother surrendered her parental rights. DCS petitioned to terminate Father’s parental rights on grounds of substantial noncompliance with the requirements of the permanency plan.

The trial court found that Father had not substantially complied with the permanency plan because he failed to submit to random drug screens and did not provide proof of legal income. The trial court terminated Father’s parental rights.

Father appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

Tennessee law authorizes termination of parental rights when there has been substantial noncompliance by the parent with the court-approved permanency plan.

Substantial noncompliance is not defined in the termination statute. It is clear, however, that noncompliance is not enough; noncompliance must be substantial, i.e., of real worth and importance. In the context of the requirements of a permanency plan, the real worth and importance of noncompliance should be measured by both the degree of noncompliance and the weight assigned to that requirement. Terms that are not reasonable or related to the issues that led to removal are irrelevant, and substantial noncompliance with such terms is irrelevant.

A majority of the Court concluded that substantial noncompliance was not proven here:

[T]he trial court primarily relied on Father’s failure to submit to random drug screens as the basis for its finding that he had failed to substantially comply with the requirements of the permanency plan. It appears that the trial court gave little consideration to the fact that Father satisfied the majority of the requirements of the plan. . . . Father complied with all of the permanency plan requirements except for the drug screens and proof of income . . . . While we concede that Father’s failure to submit to drug screens undermines his attempts to regain custody of [Child], we have concern that the drug screening requirement may not garner the weight it did at the outset of these proceedings in light of the second drug and alcohol assessment, which recommended no further treatment.

*     *     *     *     *

In light of Father’s current alcohol and drug assessment, which recommended no further treatment, we cannot conclude that his failure to submit to random drug testing is substantial enough to warrant the grave consequences of termination of his parental rights at this point.

Thus, because DCS failed to meet its burden to prove grounds for termination of Father’s parental rights by clear and convincing evidence, the trial court’s ruling was reversed.

Dissent: Judge Susano dissented because “[t]he excuses given by [F]ather with respect to his failed drug tests strain credulity. His explanations are preposterous. The fact that he would use them tells me the that we are dealing with a practicing drug addict.” Judge Susano would’ve upheld the trial court’s termination of parental rights.

K.O.’s Comment: This is the first time Judge Susano has dissented where I have not agreed with him. While I certainly agree with his assessment of Father’s credibility, I’m not comfortable concluding that it proves Father is a practicing drug addict. That’s too big a leap for me to take considering the serious — and permanent — effects of a termination of parental rights.

In re Damien G. M. (Tennessee Court of Appeals, Eastern Section, May 3, 2017).

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

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