Divorce

What are the grounds for absolute divorce in Tennessee?
Grounds must be proven or agreed. Grounds for divorce include the following:

Either party, at the time of the contract, was and still is naturally impotent and incapable of procreation;

Either party has knowingly entered into a second marriage, in violation of a previous marriage, still subsisting;

Either party has committed adultery;

Willful or malicious desertion or absence of either party, without a reasonable cause, for one (1) whole year;

Being convicted of any crime which, by the laws of the state, renders the party infamous;

Being convicted of a crime which, by the laws of the state, is declared to be a felony, and sentenced to confinement in the penitentiary;

Either party has attempted the life of the other, by poison or any other means showing malice;

Refusal, on the part of a spouse, to remove with that person's spouse to this state, without a reasonable cause, and being willfully absent from the spouse residing in Tennessee for two (2) years;

The wife was pregnant at the time of the marriage, by another person, without the knowledge of the husband;

Habitual drunkenness or abuse of narcotic drugs by either party, when the spouse has contracted either such habit after marriage;

Irreconcilable differences between the parties;

For a continuous period of two (2) or more years which commenced prior to or after April 18, 1985, both parties have lived in separate residences, the parties have not cohabitated as man and wife during such period, and there are no minor children of the parties;

The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct;

The husband has offered such indignities to the wife's person as to render the wife's condition intolerable, and thereby forced the wife to withdraw;

and, The husband has abandoned the wife, or turned the wife out of doors, and refused or neglected to provide for the wife.

Overview of the Divorce Process

There are only two ways to end a marriage: a divorce trial or settlement. Almost everyone agrees that a settlement is less traumatic and does less damage to everyone involved, especially children. Certainly it costs less than a trial, and very few divorces these days actually end in a trial. Before a settlement is reached or a trial held, there is the divorce process. *Click Here for the comprehensive overview of the divorce process*

Marital Dissolution Agreement
Your lawyer will help you address and solve foreseeable problems in the M.D.A. Some possible situations, though, cannot be addressed an M.D.A. There is no such thing as a standard divorce. Going back to court to resolve a dispute is costly and painful, especially if it could have been addressed at the time of the divorce. For a divorcing couple with children, the other important court pleading is the permanent parenting plan, which lists all details for the children's residential and holiday schedule, child support, and decision-making authority. For every case, great care must go into its negotiation and drafting. Click Here for some of the important areas that can be addressed in an M.D.A.

Taping Telephone Calls, Reading E-mail, and Wiretapping
Privacy laws have been in the news lately. From new law protecting privacy of medical records and financial privacy, the focus has been clear - society wants to protect privacy. Even older laws, such as federal and state criminal law have been enforced more than ever. If you want to learn more about these laws, see the outlines below. Other states' laws may apply as well. Some are much more restrictive. The unmistakable conclusion should be to discuss your plan with your lawyer before engaging in any of the listed activities. Click Here for an Outline of the Electronic Communications Privacy Act (ECPA) and the Tennessee Wiretapping and Electronic Surveillance Act (As of 2004)

LIFE AFTER DIVORCE
Realistically, running two households costs more than running just one. Couples rarely do financial planning for divorce. Be smart. Do your homework. Do not buy expensive luxury cars. Save cash. Money represents the freedom to make choices.

After the divorce, if you and your ex-spouse agree to change any term of an order or agreement, it will need to be written, formalized, and entered as a new order with the court to be effective. For example, if one spouse agrees that alimony no longer has to be paid, the alimony will still be due unless an order is entered with the court.

If only you want to change some term of the divorce, check with your lawyer. Some things can be changed. If you get laid off, some courts will allow a temporary reduction in child support. Some forms of alimony are modifiable. As a child gets older, changes in the parenting plan may make sense. The law changes as well. Your relationship with your lawyer should not end with the divorce. You should feel comfortable enough to call and ask questions.

Pre-nuptial agreements can be valid in Tennessee. If you entered into such an agreement, be sure to tell your lawyer. If you are interested in obtaining a pre-nuptial agreement before your next marriage, plan ahead. For important legal reasons, do not wait until the last minute.

Tax time means checking child support amount. Child support is based on gross income. For most, calculating child support is a simple process of looking at all of the W-2's and adding them up. But it can get more complicated. Income for purposes of child support can include such items as interest income, bonuses, and capital gains. There are only a few ways, however, to reduce the gross income before calculating child support. These items are almost always reflected on tax returns. That is why it is important for the attorney reviewing a child support obligation to look at the entire tax return.

The process to modify child support obligation can be very simple. The attorney for the obligee can review the return, recalculate child support, and draft a Consent Order if the amount is agreed upon. If the matter is not agreed upon, the matter must be brought before the court by a Petition to Modify Child Support. The court will not have the authority to modify the support, however, if the amount of the obligation has not varied significantly.

Many M.D.A.'s provide for the obligor's mandatory voluntary delivery of the income tax return. Everyone who has this provision should take full advantage of it. If you do not have this clause, you can still make the request. If you are the obligee and you feel comfortable asking for a copy of the return, do so. If you are the obligor, call your lawyer if you have any questions about this process. If you are the obligee and do not feel comfortable making this request, your lawyer can request a copy of the return from the obligor in writing, possibly without charge. Also possibly without charge, your lawyer can review the child support calculation.

Finally, if your spouse was a loser before the divorce, your spouse will likely be a loser after the divorce. If something is not right, check in with your lawyer. Failing to pay a credit card debt can be addressed in a post-divorce petition. Failing to pay child support sometimes can be corrected with a letter threatening to file a Petition for Contempt. Courts look unfavorably upon denial of visitation even when child support is not being paid and, in most circumstances, will order that visitation be restored immediately. The court will not care, however, if a non-primary residential parent forgets to send a birthday present or acts ugly at a family event. The most important thing to remember is not to wait. Waiting sometimes can make the problem even worse. Call and ask your attorney!

Custody - top

In today's mobile and constantly changing society it is very common that custody rights are modified. Courts recognize that children's desires, wishes or even relationships with parents change over the course of time. Therefore, with the children's best interest in mind, courts are willing to alter custodial rights in order to adapt to new circumstances and living situations. Alternatively, the ex-spouses can voluntarily modify the last court order and come to a mutual agreement about the new custody rights.

Parental Relocation
Tennessee Code Annotated 36-6-108, known as the "Parent Relocation Statute," sets out the course of action for divorced parents when one parent wishes to relocate the child (or children) outside the state or more than one hundred (100) miles from the other parent within the state. The relocating parent is required to send written notice to the non-relocating parent no later than sixty (60) days prior to the move. The non-relocating parent then has thirty (30) days after receiving the notice to object to the court. If the non-relocating parent does not object within thirty (30) days, he or she may not be able to object later.

For more information on the Parent Relocation Statue of Tennessee click here.

Child Support - top

Tennessee child support guidelines dictate the amount of child support to be paid after a divorce or determination of parentage. The amount of child support is based upon the combined income of the parent with primary residential custody and the parent with the co-parenting or "visitation". Tennessee child support guidelines calculate earned income and passive income when determining the combined or gross income of both parents. Salaries, wages, commissions, bonuses, severance pay as well as the sale of goods or services are included in determining earned income. Examples of passive income are benefits from social security, unemployment or workers compensation as well as stock dividends and gifts. Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI) and Food Stamps are not considered income when calculating the gross income.

When determining the amount of child support to be paid, Tennessee will always act in what it deems in the best interest of the child. The amount determined to be paid will be paid until the child/children reach eighteen (18) years of age unless the child has not graduated from high school with his/her senior class and is still in school.  Tennessee child support laws follow a standardized system dictating the amount of child support to be paid to the parent who has primary residential custody. However, if you can not afford to pay the child support, or otherwise it is an unfair amount and/or the amount of child support is not in the best interest of the child, Tennessee child support laws allow the court to deviate "change" their determined amount of child support upon good cause shown.

Contact the lawyers at Ogle, Elrod & Baril, PLLC; we have child support lawyers experienced in Tennessee Child Support, child support guidelines, child support laws that can help you with your Tennessee child support questions.

Alimony - top

1. The court may make an order for the support of one spouse by the other spouse. On application of either party for spousal support, the court may decree an increase or decrease only upon a showing of a substantial and material change of circumstances.
   
   In cases involving child support, the court shall decree an increase or decrease of such allowance when there is found to be a significant variance between the guidelines and the amount of support currently ordered unless the variance has resulted from a previously court-ordered deviation from the guidelines.
   
   The necessity to provide for the child's health care needs shall also be a basis for modification of the amount of the order, regardless of whether a modification in the amount of child support is necessary. In no event shall eligibility for or receipt of Medicaid or TennCare-Medicaid by the custodial parent be considered to meet the need to provide for the child's health care needs in the order.
   
   The court shall not refuse to consider a modification of a prior order and decree as it relates to future payments of child support because the party is in arrears under that order and decree, unless the arrearage is a result of intentional action by the party.
   
   The court shall set a specific amount which is due in each month to be paid in one (1) or more payments as the court directs.
2. Courts having jurisdiction of the subject matter and of the parties are hereby expressly authorized to provide for the future support of a spouse and of the children, in proper cases, by fixing some definite amount or amounts to be paid in monthly, semimonthly, or weekly installments, or otherwise, as circumstances may warrant, and such awards, if not paid, may be enforced by any appropriate process of the court having jurisdiction thereof, including levy of execution.
3. In all cases where a person is receiving alimony in futuro or alimony the amount of which is not calculable on the date the decree was entered, and that person remarries, the alimony in futuro or alimony the amount of which is not calculable on the date the decree was entered, will terminate automatically and unconditionally upon the remarriage of the recipient. The recipient shall notify the obligor of the remarriage timely upon remarriage. Failure of the recipient to timely give notice of the remarriage will allow the obligor to recover all amounts paid as alimony in futuro or alimony the amount of which is not calculable on the date the decree was entered, to the recipient after the recipient's marriage.
4. In all cases where a person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption is thereby raised that:
5. The third person is contributing to the support of the alimony recipient and the alimony recipient therefore does not need the amount of support previously awarded, and the court therefore should suspend all or part of the alimony obligation of the former spouse; or
6. The third person is receiving support from the alimony recipient and the alimony recipient therefore does not need the amount of alimony previously awarded and the court therefore should suspend all or part of the alimony obligation of the former spouse.

Adoption - top

In Tennessee ALL adoptions must include the termination of all legal and biological parents' parental rights.  Upon finalization of an adoption, the adoptive parents become the child's legal parents as if the child was actually born to these two parents.  After the judicial process is compete, a new birth certificate is issued with the adoptive parents listed as mother and father which likewise includes the name change of the child (if any). 

The child must be in the physical custody of the adoptive parents for six (6) months prior to finalization of the adoption with ALL adoptions, except for relatives,   (The final termination of parental rights typically occurs much sooner.)  The six (6) month period is so that an agency can supervise the placement and report to the Court their evaluation of the placement. 

The two types of Adoption

Step-Parent  - Step-parent Adoption is quite common.  Post adoption, the step parent legally becomes the adopted child's parent as though child were born to that parent.  Additionally,  should a  divorce occur, custody and child support issues would be the same as if the step-parent were the child's biological parent.   The parental rights of any other legal or biological parent (not the parent married to the step-parent) must be terminated before the step-parent can adopt.  It does NOT matter in the State of Tennessee that a father is not on the birth certificate.  Step-parent adoptions are considered relative adoptions.  Therefore, the home study and six month waiting period may be waived by the Judge.  However, some judges prefer that the couple be married 6 months - 1 year before the adoption is finalized.

Relative - Tennessee Code Annotated 36-1-102(42) defines relative as: grandparents or any degree of grandparents, great-grandparents, aunts or uncles, or any degree of great aunts or great uncles, or step-parent, cousins of the first degree or any sibling of the whole or half degree.  There is no waiting period before the adoption can be finalized, and the home study may be waived by the Judge.  The child's legal and biological parents' parental rights must be terminated or they must consent.

Mediation - top

Mediation is a form of "Alternative Dispute Resolution." Alternative Dispute Resolution is a general term that describes new procedures used by the courts to facilitate settlements. The theory is that many cases that result in trial can be resolved if there is a formal process by which the parties meet to discuss the issues in the case. The process is controlled by Supreme Court of Tennessee Rule 31.

Pursuant to the provisions of this Rule, a court may order the parties to an eligible civil action to participate in an alternative dispute resolution proceeding in accordance with this Rule.

"Mediation" is an informal process in which a neutral person, called a mediator, conducts discussions among the disputing parties designed to enable them to reach a mutually acceptable agreement among themselves on all or any part of the issues in dispute. 

Rule 31 dispute resolution neutral or settlement judge shall preserve and maintain the confidentiality of all alternative dispute resolution proceedings except where required by law to disclose the information.

Orientation Session. On commencement of the mediation session, a mediator shall inform all parties that the process is consensual in nature, that the mediator is an impartial facilitator, and that the mediator may not impose or force any settlement on the parties.

Continuation of Mediation. A mediator shall not unnecessarily or inappropriately prolong a mediation session if it becomes apparent that the case is unsuitable for mediation or if one or more of the parties is unwilling or unable to participate in the mediation process in a meaningful manner.

Parties' Right to Decide. A mediator shall assist the parties in reaching an informed and voluntary settlement. Decisions are to be made voluntarily by the parties themselves.

Prohibition of Mediator Coercion. A mediator shall not coerce or unfairly influence a party into a settlement agreement and shall not make substantive decisions for any party to a mediation process.

Prohibition of Misrepresentation. A mediator shall not intentionally nor knowingly misrepresent material facts or circumstances in the course of conducting a mediation.

A Balanced Process. A mediator shall promote a balanced process and shall encourage the parties to conduct the mediation deliberations in a non adversarial manner.

Mutual Respect. A mediator shall promote mutual respect among the parties throughout the mediation process.

 Professional Advice

Generally. A mediator shall not provide information the mediator is not qualified by training or experience to provide.

Independent Legal Advice. When a mediator believes a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator shall advise the participants to seek independent legal counsel.

Personal Opinion. While a mediator may point out possible outcomes of the case, a mediator should not offer a firm opinion as to how the court in which the case has been filed will resolve the dispute.

Orders of Protection - top

If you are in the middle of a domestic violence altercation, even if you have been in similar situations before, call the police. If you are also represented by a lawyer, call him. The law dictates that law enforcement's preferred response is arrest. If you fear for your life and have nowhere to go, the police may direct you to an absolutely secret shelter. Even your lawyer is not allowed to know where you are. If you have children, they may go as well.

If you are the victim of abuse, never underestimate the true danger that rage poses. Fight any feelings you might have of responsibility for the abuser. In the middle of a difficult situation, worry about one thing only - saving your own life. Sort out the details later.

If you are the abuser, seek treatment. Situations such as this are common, and help is available. Once domestic violence is brought to the attention of a court, there is no doubt in any judge's mind that the domestic violence cycle of rage and terror will continue without some form of professional intervention. Without treatment, abusers risk jail time and losing parental rights.

Women:

Thirty percent of Americans say they know a woman who has been physically abused by her husband or boyfriend in the past year.

Three in four women (76 percent) who reported they had been raped and/or physically assaulted since age 18 said that a current or former husband, cohabiting partner, or date committed the assault.

In 2002, 76% of IPV homicide victims were female; 24% were male (Fox and Zawitz 2004).

Previous literature suggests that women who have separated from their abusive partners often remain at risk of violence (Campbell et al. 2003; Fleury, Sullivan and Bybee 2000).

Between 4% and 8% of pregnant women are abused at least once during the pregnancy (Gazmararian et al. 2000).

Children:

More than half of the children whose mothers are abused are also likely to be victims of physical abuse. Older children are often injured while trying to protect their mothers.

Whether or not the children are abused physically, they suffer emotional trauma and psychological scars from watching their fathers beat their mothers.

Children form these homes may experience stress-related physical ailments, as well as hearing and speech problems.

Children from violent homes have higher risks of alcohol/drug abuse and juvenile delinquency

Juvenile/DCS Litigation - top

Paternity is a complex and at times emotionally charged area of the law. The establishment of paternity allows a father to enforce his right to be a part of his child's life as well as allow a mother, on behalf of her child, to enforce the child's right to receive financial support, including contribution to medical costs, daycare costs, and education costs.

The family law attorneys at Ogle, Elrod & Baril can help you in filing or defending against an action for paternity. For a free initial consultation, call us at (888) 546-5030.

The attorneys at Ogle, Elrod & Baril have significant experience in all aspects of paternity. As science and the law have evolved, so has the use of paternity tests to establish facts and secure rights under the law.

For example, we can help a mother establish the paternity of a child and then use the results to obtain child support, medical benefits, and life insurance benefits. On behalf of a putative father, we can use a paternity test to challenge the client's paternity when the mother is claiming that the client is the father of her child or use a paternity test to establish the father's rights when a mother is denying the father a relationship with his child.

Ogle, Elrod & Baril represents mothers, fathers, and putative fathers in Knox, Blount, Anderson, Loudon, Grainger, Sevier, Hamblen, Jefferson, and surrounding counties in these matters. DNA testing can rule out paternity with 100% accuracy, and can also conclusively determine paternity with 99.99% accuracy. DNA testing is simple and painless. It involves a swab to scrape a few skin cells from the gums of the putative father and the child. Men should be aware that signing a Voluntary Acknowledgement of can lock you into fatherhood and the responsibility for child support, even if you are not indeed the real father.

In a free and confidential consultation, our lawyers can explain paternity law, your rights, and how we may be able to resolve your paternity matter.