To Prenup, or Not to Prenup. That is the Question.

Introductionshakespeare

Maybe the law of prenups in Tennessee is not the most Shakespearean of topics, but knowing the benefits and drawbacks of entering an antenuptial agreement in Tennessee can help make an informed decision about whether or not to entera prenup prior to marriage.  Previously, I provided an introduction to the laws pertaining to prenuptial agreements in Tennessee.  While I provided information and insight into what an antenuptial agreement can and cannot do and how to enforce one, I did not discuss in great detail why one may or may not enter a prenuptial agreement.

Pros to a Prenup a.k.a. “To Prenup”

To answer the five million dollar question (yes, there are prenuptial agreements that have this level of consequence), let’s start with a few reasons an individual may want to bite the bullet and enter a prenup prior to marriage.  First, individuals who have previously been through a divorce on less than harmonious terms are familiar with the possible conflict, stress, strain, and tension, that accompany contested divorces.  Through a prenuptial agreement, you can avoid many potential conflicts before they start by addressing the issue of property division and alimony on the front end.  You can also save money that you may later need to spend on an attorney with a well-drafted antenuptial agreement.

Second, if you are entering a marriage with substantial property ownership-specifically, income producing property, then you may want to consider a prenuptial agreement.    Also, business owners may want to consider a prenuptial agreement to ensure that the business and its income remains their separate property.  Carefully defining what will be marital and separate property prior to the marriage and how you would like to divide said property can provide each party with clarity before entering the marriage.  Also, a prenup can remove the financial incentive for a spouse to marry (although, the reverse could be true as well – it may relieve the “benefiting” party of the risk of consequence for divorce).

Also, a prenuptial agreement allows the party to enter into any special agreement they may be considering prior to a marriage.  Perhaps one party has a cat (or six) of which they would like to ensure full custody following a divorce, this could be addressed in a prenuptial agreement.

Finally, since financial issues are a primary source of strain in many failing marriages, a prenuptial agreement provides a process whereby there is full disclosure of financials up front, and can help the future spouses get on the same page regarding finances.  It could be argued that the divorce rate would be lower if every couple sat down together prior to marriage, disclosed assets, debts, and income, and planned their financial futures together.  A prenuptial agreement is a means to force the parties to ask the hard questions at the beginning.

Cons to a Prenup a.k.a. “Not to Prenup”

There’s no avoiding it, prenuptial agreements are not romantic.  They are not fun.  Sitting down and discussing how to address issues in the event of divorce before you are even married is not on anyone’s list of favorite pre-wedding rituals.  If you believe discussing the topic with your future spouse may have a negative impact on the relationship, then a prenuptial agreement is probably not for you.

Also, state law may provide enough protection for you in the event of divorce anyway.  Tennessee statutes clearly defines what is considered “marital property” and what is considered “separate property” in the event of a divorce, and courts are tasked with fairly and equitably distributing all marital assets and debts.  There are also statutes directly addressing how alimony is to be categorized and determined.  Therefore, even without a prenuptial agreement, state law may be enough to provide the peace of mind you need in the event of divorce.

Additionally, prenuptial agreements cannot address child custody and child support.  The courts will retain jurisdiction to make child custody determinations, and child support in Tennessee is established through a set of regulations known as the Tennessee Child Support Guidelines.  Parties may not enter private agreement for child support in Tennessee.  So while you may avoid the conflict of fighting over property and alimony through a prenuptial agreement, you may still wind up in a stressful custody dispute.

Finally, prenuptial agreements may not properly address unanticipated changed circumstances.  Since antenuptial agreements are typically based on the circumstances at the time of entry of the agreement, changed circumstances can have detrimental consequences to one or the other party.  Also, if a prenuptial agreement does not clearly and explicitly address how to resolve issues, it can create more confusion and conflict down the line, resulting in a court challenge, and increased attorney fees.

Conclusion

It is my opinion that there are scenarios where parties should absolutely consider and could benefit from the entry of a prenuptial agreement.  However, no two situation is exactly alike.  Fully weighing the benefits and drawbacks to entering a prenuptial agreement can help answer that ever elusive question – to prenup, or not to prenup?

Disclaimer:  Ryan C. Smith’s legal blog is for educational purposes only, as well as to provide general information regarding Tennessee law, not to provide legal advice. By reading the blog, it is understood that there is no attorney-client relationship created between you and attorney Ryan C. Smith, and that the blog does not constitute legal advice.

Please do not act upon the information contained in this blog without seeking advice from a duly licensed attorney in your own state or jurisdiction. This blog is not a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction.

Any use of the information contained in the blog is at your own risk. The materials in the blog may not accurately  reflect the most current state of law in Tennessee, and may be changed, improved, or updated without notice. Ryan C. Smith is not responsible for any errors or omissions in the content of this site or for damages arising from the use or performance of this site under any circumstances.

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Superior Parental Rights – Custody Between Parents and Non-Parents in Tennessee

Parents have the fundamental right, based both upon the federal and Tennessee constitutions, to the care and custody of their own children.  In Tennessee, this right comes from the right to privacy in article I, Section 8 of the Tennessee Constitution.  This constitutional right carries with it a legal presumption of superior parental rights in the State of Tennessee, which requires the courts to favor parents when making custody determinations between natural parents and non-parents.

In an initial custody proceeding, a non-parent must demonstrate that a child will be subject to substantial harm if custody was to be awarded to a non-parent.  Additionally, unlike the typical civil case that requires the lower “preponderance of the evidence” standard of proof, the risk of substantial harm must be proved by the non-parent by the higher clear and convincing evidence standard.  Once there is a finding that there is a substantial risk of harm, then the court’s analysis would shift to whether a change in custody is in the best interest of the child.

However, once a parent either relinquishes the right to the care and custody of his or her own child or loses that right based upon a court finding that substantial harm would result if the child was to remain with the parent, he or she cannot thereafter invoke the doctrine of superior parental rights in a future modification proceeding.  Rather, the parent would be required to apply the same standard applied in typical parent vs. parent modifications, that: 1) there has been a material change in circumstances, and 2) that a change in custody or a modification of the custody schedule is in the minor child’s best interest.

There are four exceptions provided by the Tennessee Supreme Court in Blair v. Badenhope, 77 S.W.3d 137, 143 (Tenn. 2002) when a parent may invoke the doctrine of superior parental rights in a future modification:

(1) when no order exists that transfers custody from the natural parent;
(2) when the order transferring custody from the natural parent is
accomplished by fraud or without notice to the parent;
(3) when the order transferring custody from the natural parent is invalid on
its face; and
(4) when the natural parent cedes only temporary and informal custody to
the non-parents.
Therefore, for informal agreements between parents and non-parents (frequently, grandparents) without the involvement of the court, parents could invoke the doctrine of superior parental rights for a future modification, because no court order would exist transferring custody from the natural parent.
The right of parents to the care and custody of their children, stemming from both the Tennessee and U.S. Constitutions, is one of the most fundamental rights we have in this country.  The legal presumption that parents’ rights are superior to all others flows from this constitutional right.  However, this presumption and the right to parent your children are not absolute, and once either waived or lost via formal agreement and court order or through a court’s determination that there is a risk of substantial harm for the child to remain with the parent, a parent is thereafter on equal footing with all others for future modifications.

 

Disclaimer:  Ryan C. Smith’s legal blog is for educational purposes only, as well as to provide general information regarding Tennessee law, not to provide legal advice. By reading the blog, it is understood that there is no attorney-client relationship created between you and attorney Ryan C. Smith, and that the blog does not constitute legal advice.

Please do not act upon the information contained in this blog without seeking advice from a duly licensed attorney in your own state or jurisdiction. This blog is not a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction.

Any use of the information contained in the blog is at your own risk. The materials in the blog may not accurately  reflect the most current state of law in Tennessee, and may be changed, improved, or updated without notice. Ryan C. Smith is not responsible for any errors or omissions in the content of this site or for damages arising from the use or performance of this site under any circumstances.

Hearsay Explained in Three Minutes

Hearsay is a concept familiar to most folks but understood by very few.  Prior to attending law school, I essentially equated hearsay with speculation.  If you did not know something for a fact but were merely told by someone else, that is hearsay, right?  Well, not exactly.

Hearsay is a principle of evidence that is intended to keep unreliable testimony out of evidence in a legal proceeding. Hearsay is defined by Rule 801 of the Tennessee Rules of Evidence as a statement, other than one made by the declarant while testifying at the trial or hearing (a.k.a. an “out of court statement”), offered in evidence to prove the truth of the matter asserted.  Declarant is defined as a person who makes a statement, and statement is defined as 1) an oral or written assertion, or 2) nonverbal conduct of a person if it is intended by the person as an assertion.

For example, imagine a witness on the stand in a divorce trial.  This witness just testified that he knows that his spouse had an affair during the marriage.  When asked how he knows this, the witness states that “I was told by J…” **OBJECTION.  Opposing counsel would then make his argument that this testimony is unreliable hearsay and should be excluded from evidence.  Why?  Because it is an out of court statement that is being offered in evidence to prove the truth of the matter asserted – that the spouse had an affair.  Conversely, this declarant could have been subpoenaed to testify if he or she had knowledge of an affair, and could then be subject to cross-examination.  As do most of the Rules of Evidence, the principle of hearsay allows the court to ensure that the evidence that is presented is trustworthy and provides a fair procedure to help parties resolve disputes.

One of the key elements in the hearsay definition is that the statement is being used to prove the truth of the matter asserted.  This means that if the statement is being presented for some other reason, such as to show the effect on the listener, then it is not hearsay and would be admissible into evidence.  For example, a witness testifies that “Tom told me that Jerry was in downtown Chattanooga, and that is why I was running frantically downtown looking for him.”  “Objection – hearsay,” argues opposing counsel.  However, the previous testimony was that Jerry was the witness’s pet mouse, and the witness was distraught when he lost him.  In that situation, counsel would argue that the statement by the witness that “Tom told me that Jerry was in downtown Chattanooga” was not being presented to prove that Jerry was actually in Chattanooga, but rather that hearing that Jerry was in Chattanooga caused the witness to run frantically downtown to look for him.  Therefore, this is not hearsay.  I never said hearsay was simple.

Additionally, to complicate things further, Tennessee recognizes over twenty hearsay exceptions, which would make the otherwise inadmissible statements not excluded by the hearsay rule.  Some examples of hearsay exceptions are party-opponent admissions, excited utterances, and statements of then existing mental, emotional, or physical condition.  These exceptions will be further developed in a future post.

In sum, hearsay is an out of court statement that is offered into evidence to prove the truth of the matter asserted.  The key is to listen to the testimony for out of court statements and be prepared to state your objection.  Attorneys must also be prepared to run through the analysis of whether the statement is being used to prove the truth of the matter asserted, and whether any of the over twenty exceptions exist that would make the otherwise inadmissible statement admissible.  Attorneys must be highly prepared for possible evidentiary issues at hearings and also be able to think quickly on their feet to timely state and respond to objections for hearsay and other evidentiary objections.

Disclaimer:  Ryan C. Smith’s legal blog is for educational purposes only, as well as to provide general information regarding Tennessee law, not to provide legal advice. By reading the blog, it is understood that there is no attorney-client relationship created between you and attorney Ryan C. Smith, and that the blog does not constitute legal advice.

Please do not act upon the information contained in this blog without seeking advice from a duly licensed attorney in your own state or jurisdiction. This blog is not a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction.

Any use of the information contained in the blog is at your own risk. The materials in the blog may not accurately  reflect the most current state of law in Tennessee, and may be changed, improved, or updated without notice. Ryan C. Smith is not responsible for any errors or omissions in the content of this site or for damages arising from the use or performance of this site under any circumstances.

 

 

Modifying Alimony When Spouse Receiving Support Begins Residing with a Third Party – Schrade v. Schrade

In the recent Tennessee Court of Appeals case Schrade v. Schrade, the Court addressed the issue of whether to modify husband’s alimony obligation following a divorce, when the parties had a provision in the Marital Dissolution Agreement pertaining to the type and manner in which alimony would be paid.  The Marital Dissolution Agreement contained the following alimony provision:

Investment Accounts and Retirement Accounts: The parties acknowledge that they have been living on the income from an Orange County Trust and stock portfolio, and that these funds from this Trust and this stock portfolio are owned by the Husband, or attributable to him.  The Husband agrees that he will pay the Wife from these funds 35% of the regular monthly distributed amounts, each month, from both accounts. Further, from the stock portfolio, the Husband agrees that regardless of the distribution from the stock portfolio, the Wife shall never receive less than $1,200.00 per month, even if $1,200.00 is greater than the previously agreed 35%. This 35%…shall be received by the Wife as periodic alimony[.]

Husband’s request to modify alimony was two-fold: 1) that there was a material change in circumstances because economic circumstances have changed, causing the distributions from the two accounts to drop dramatically, and 2) that Wife is now living with third parties – her adult daughter and son – creating a rebuttable presumption that she no longer needs alimony.

The trial court declined Husband’s request to modify alimony pursuant to the economic downturn.  The court reasoned that the alimony provision from the MDA actually anticipated a change in economic circumstances by providing a floor of $1,200.00 per month, even if $1,200.00 was more than 35% of the regular monthly distributed amounts from the accounts.  I agree with the trial court’s reasoning on this issue, and so did the Court of Appeals.  When an MDA provision expressly provides how alimony  may be modified and the language is plain and unambiguous, the court’s function is to interpret and enforce the provision.  Here, the plain language of the MDA created a baseline alimony amount of $1,200.00, regardless of whether $1,200.00 was more than the 35% distributions.  Therefore, since the MDA itself anticipated this very scenario, the Court ruled that the significant economic downturn and decrease in distributions would not constitute a material change in circumstances to justify a modification.

Next, the trial court declined to suspend or terminate Husband’s alimony obligation on the basis of Wife’s adult children residing with her.  The Court of Appeals vacated the trial court’s decision to decline to modify alimony pursuant to Wife’s residing with a third party, and remanded the case back to the trial court to make a specific determination as to whether Wife overcame the statutory rebuttable presumption that the alimony be suspended.

Tennessee Code Annotated Section 36-5-121(f)(2)(B) provides as follows:

In all cases where a person is receiving alimony in futuro (a.k.a. periodic alimony) and the alimony recipient lives with a third person, a rebuttable presumption is raised that:

(i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or
(ii) The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should
suspend all or part of the alimony obligation of the former spouse.
In this case, the evidence showed that Wife was not receiving any support from either her daughter or her son who were residing with her.  However, the record was unclear as to whether either the daughter or son were receiving any type of support from Wife, which would show that Wife does not need the amount of alimony previously awarded.  Therefore, the Court of Appeals sent the case back to the trial court to conduct another hearing to determine whether Wife overcame the rebuttable presumption  that she no longer needed the same amount of alimony due to her cohabitation with a third person.
What are some key takewaways from this case?  First, the language in the MDA regarding alimony provisions is crucial, and will govern if the language is clear and unambiguous.  Second, the type of alimony awarded is very important.  Not all types of alimony are modifiable, and only alimony in futuro and transitional alimony expressly contains the rebuttable presumption that the alimony be modified in these cohabitation scenarios.  Third, the cohabitation does not have to be with a new boyfriend or girlfriend to trigger the rebuttable presumption – adult children qualify as well.  Finally, the rebuttable presumption is…rebuttable!  It is not determinative of the issue, but merely shifts the burden back to the Wife to show that she still needs the same amount of alimony.

Disclaimer:  Ryan C. Smith’s legal blog is for educational purposes only, as well as to provide general information regarding Tennessee law, not to provide legal advice. By reading the blog, it is understood that there is no attorney-client relationship created between you and attorney Ryan C. Smith, and that the blog does not constitute legal advice.

Please do not act upon the information contained in this blog without seeking advice from a duly licensed attorney in your own state or jurisdiction. This blog is not a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction.

Any use of the information contained in the blog is at your own risk. The materials in the blog may not accurately  reflect the most current state of law in Tennessee, and may be changed, improved, or updated without notice. Ryan C. Smith is not responsible for any errors or omissions in the content of this site or for damages arising from the use or performance of this site under any circumstances.

An Introduction to the Law of Prenuptial Agreements in Tennessee

Most people have heard the word “prenup” at some point in their life.  Whether viewed as a safety blanket for those unwilling to truly commit, or as a wise recognition of the risk inherent in marriage in our modern society, prenuptial agreements – a.k.a. antenuptial agreements or premarital agreements – have long been favored by Tennessee law.  A prenuptial agreement is a contract between two parties in anticipation of marriage to decide how to divide property and assess alimony following a divorce.  Prenuptial agreements can be favored by those with considerable wealth, who own a business, or who are entering a second marriage with significant personal assets.

While the policy behind the decision of whether to enter a prenuptial agreement has been long debated, this article is meant merely to provide information about state law regarding prenups in Tennessee.  A future article will highlight the reasons why a prenup can be a really great idea, and also why a prenup can be a truly awful idea.

So, what can a prenuptial agreement do exactly?  In a divorce, there are three primary issues to address: 1) the division of marital property and debts, 2) child custody and support, and 3) alimony.  Not every divorce will address all three of these topics, but many do, and all address at least one.  A prenuptial agreement can address two of the three big ticket items; namely, parties can specify prior to the marriage how to divide the marital estate upon divorce and can make provisions setting or waiving alimony in the event of divorce.

There is one limitation on the ability to waive alimony in Tennessee, and that is if the spouse who waived the right to receive alimony would become a “public charge” as a result of the waiver.  For example, if a homemaker of forty years with little to no education entered a prenuptial agreement waiving any interest in the marital estate and waiving alimony and could show that she had no previous work experience and no future job prospects, the court could hold that the alimony provision in the antenuptial agreement is invalid and award alimony anyway.

So, what can a prenuptial agreement not do?  Courts retain jurisdiction over issues regarding children of divorcing parents in Tennessee.  Courts will not allow parties to privately negotiate child support amounts, and will not allow parties to anticipate child support amounts in prenuptial agreements.  Additionally, parents cannot limit child custody and visitation in prenuptial agreements.

Generally, a prenuptial agreement will be enforced in Tennessee provided that the party seeking its enforcement can demonstrate that it was entered into freely, knowledgeably, and in good faith.  Additionally, the party seeking enforcement of the prenuptial agreement must show that it was entered without duress or undue influence.  The burden is on the person requesting to enforce the prenuptial agreement to prove its validity.

The Tennessee Supreme Court has provided some guidance regarding what it means to enter a prenuptial agreement “knowledgeably.”  In the case of Randolph v. Randolph, 937 S.W.2d 815, 821 (Tenn. 1996), the Supreme Court instructed as follows:

“As we interpret the knowledge element of the statute, the spouse seeking to enforce an antenuptial agreement must prove, by a preponderance of the evidence, either that a full and fair disclosure of the nature, extent, and value of his or her holdings was provided to the spouse seeking to avoid the agreement, or that disclosure was unnecessary because the spouse seeking to avoid the agreement had independent knowledge of the full nature, extent, and value of the proponent spouse’s holdings.”

Therefore, full disclosure of all assets, income, and liabilities is the best policy when entering a prenuptial agreement.  The major issue is whether the disclosure was fair and not intentionally misleading, even if not 100% complete.  Providing your spouse with an opportunity to ask questions and delve further into the extent of your holdings is also evidence that the agreement was entered in good faith.  Also, the timing of entry of the prenuptial agreement is a key to enforceability.  For example, if you asked your spouse to sign a prenup that your lawyer prepared on the way to dress rehearsals for your big day, you may have some issues when the time comes to prove that the agreement was entered in good faith and without duress or undue influence.

Additionally, while not specifically required, independent counsel representing each party provides the best assurance that the legal requirements for enforceability have been met.  The court will consider the circumstances surrounding the presentation and execution of the agreement when deciding whether to enforce it.

Prenuptial agreements are primarily used as a pre-marital tool to decide how to divide a marital estate in the event of a divorce or separation, and to address the issue of alimony.  While parties may not address issues such as child custody and child support in a prenuptial agreement, most other issues can be addressed in the prenup.  Enforceability issues can arise upon divorce when there is an existing prenuptial agreement, so parties should be well-advised when entering and executing the prenuptial agreement, and take the appropriate steps to ensure enforcement.  Stay tuned on a policy-based article on why it is a great idea to get a prenuptial agreement – and why it is also a terrible idea.

 

Disclaimer:  Ryan C. Smith’s legal blog is for educational purposes only, as well as to provide general information regarding Tennessee law, not to provide legal advice. By reading the blog, it is understood that there is no attorney-client relationship created between you and attorney Ryan C. Smith, and that the blog does not constitute legal advice.

Please do not act upon the information contained in this blog without seeking advice from a duly licensed attorney in your own state or jurisdiction. This blog is not a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction.

Any use of the information contained in the blog is at your own risk. The materials in the blog may not accurately  reflect the most current state of law in Tennessee, and may be changed, improved, or updated without notice. Ryan C. Smith is not responsible for any errors or omissions in the content of this site or for damages arising from the use or performance of this site under any circumstances.

 

The Importance of Attorney Fee Provisions in Divorce Agreements – Panda v. Panda

Upon divorce, parties will enter a Marital Dissolution Agreement (MDA) that will spell out certain agreements between the parties, such as the division of marital property, the division of debt, the payment of alimony, and any other agreements pertaining to the couple’s separation.  Many times, the MDA will include a provision similar to the following:

“Should either party incur any expense or legal fees as a result of the breach of any portion of this Marital Dissolution Agreement by the other party, the Court shall award reasonable attorney’s fees and suit expenses to the non-defaulting party.”

Obviously, such a provision is intended to protect a person from incurring future attorney fees and other legal expenses due to the former spouses failure to comply with their agreement.  Recently in the case of Panda v. Panda, the Tennessee Court of Appeals addressed the issue of whether the trial court erred when it denied a Wife’s request for attorney fees when Wife filed a Contempt action due to Husband’s failure to comply with the parties’ MDA.

The parties were divorced after 26 years of marriage, and the MDA provided, among other things, that the parties would split the mortgage payments on the marital home 50/50 pending sale of the property and the parties would execute any documents necessary to transfer title to a timeshare.  Wife’s Petition for Contempt alleged, essentially, that Husband failed to comply with the MDA due to failure to make mortgage payments and failure to execute the necessary documents.  Further, the parties’ MDA included the following provision: “In the event that either party defaults in the performance of the provisions of this agreement and the other party is required to file an action to enforce the agreement and compel performance, the other party will pay the attorney’s fees incurred by the other party.”

Following a hearing, Wife was awarded a judgment for maintenance of the marital residence due to Husband’s failure to make payments; however, the trial court denied Wife’s request for attorney fees based upon its finding that Husband was not in contempt.  The trial court stated that “the issue of attorney fees [is] in the sound discretion of the trial court to award.  And…if there is a finding of contempt tha[n] I can award those, but there’s no finding of contempt.”

Wife’s appeal followed due to the trial court’s denial of her request for attorney fees, and the Tennessee Court of Appeals reversed the trial court and remanded the case back to the trial court for a determination of the Wife’s reasonable attorney fees (Wife wins appeal!).  The Court of Appeals reasoned that the MDA was a contract, subject to the rules governing contracts.  The Court of Appeals clarified that the trial court has no discretion of whether to award attorney fees when the contract provides for recovery in a certain situation.  The Court of Appeals found that Husband did not comply with certain provisions of the MDA until after Wife had filed several actions (contempts) to compel his performance.  Therefore, while Husband was no longer in Contempt due to his performance, Wife still was required to file an action to compel his performance and, pursuant to their MDA (which is a contract agreed to by the parties) she is entitled to an attorney fee award.

The moral of this story is that a well-drafted MDA can make a difference in potential future actions to enforce the agreement.  If the MDA provides for the payment of attorney fees for failure to comply, then the award of attorney fees is not in the discretion of the trial court.  The attorney fee provision is part of a contract, subject to the rules governing contracts, and the parties will be bound by their agreements.

If Not Just “Aggressive,” Then What? Listing The Traits To Look For When Hiring An Attorney.

Previously, I wrote a post titled “Should I Hire the Most Aggressive Attorney I Can Find?”  The answer to that question was no.  And for good reason.  When preparing for litigation, especially in hotly contested issues such as divorce and child custody, the more aggressive the attorney, the likelier the case is to be more contested, the more money must be spent on the attorneys, and the less likely the issues are able to be resolved outside of the courtroom.

Occasionally, the facts will require an attorney to handle a case more aggressively.  While I would submit that it is imperative to hire an attorney who knows the appropriate time and place to be aggressive, needless aggression in order to find vindication or retaliation through the legal system is not the best way to handle a case.

So, if “aggressive” is not the most important quality , then what should a person look for when hiring an attorney?  I submit that the following characteristics are crucial when looking for an attorney to assist in resolving serious and complex legal issues..

1.  Honest.  The single most important trait to look for when hiring an attorney is honesty.   Will the attorney do what they say they will do?  Can I trust them to be fair with their fees?  Do they look me in the eyes when they speak?  Do they answer my questions honestly?

The ability to trust your attorney will go a long way in securing your peace of mind through a difficult process.  Securing an honest attorney is the first step in developing a relationship with your attorney that will ease the burden of litigation.

2.  Experienced.  I have been practicing law for a little less than three years, so you may be surprised that I would list experienced as the second most important trait to look for in an attorney.  But experience is important in all areas of life, and is especially important in law.  However, what type of experience is important?  If an attorney has been practicing thirty years doing criminal defense and has never handled a divorce, would you trust that person to represent you in a contested divorce?  Or would you prefer the attorney practicing for only two years but who has focused on family law throughout his or her career?  Also, if you hire an attorney who has not been practicing as long, what they may lack in experience can be made up in energy, enthusiasm, and attention to your case.

While I do believe experience is crucial, specific experience in the area of law in which you need assistance is of paramount importance.  Also, keep in mind that a less experienced attorney may be a hungrier attorney, which has its own advantages.  Look for an attorney that is experienced in your area of legal need, and you will be more confident in his or her ability to handle your case.

3.  Capable.  I use the word capable here to encompass a host of other qualities, such as intelligent, hardworking, diligent, attentive, and focused.  Your attorney should be someone that you believe in, someone that has the inner qualities that define success in any area of life.  Competence is key in the legal arena.  Your attorney needs to be able to draft appropriate legal documents (or have capable staff), effectively negotiate, articulate your position and persuasively argue, submit evidence in hearings, and make an impression (or have a reputation) with the judge.  Your attorney must be capable of wearing a number of hats in order to navigate your case in the proper direction.

4.  Communicative.  What is the number one complaint that clients have against lawyers?  Failure to communicate.  Not being able to reach the attorney via phone, lack of responses to emails, and just general lack of communication after hiring the attorney is the number one complaint about attorneys – even higher than the attorney fees.  Hiring an attorney who is accessible and communicative will reduce your stress and frustration that can be an inevitable part of the litigation process.

In conclusion, rather than simply hiring the attorney who says he or she is the most aggressive, I submit that clients are better served by attorneys who are honest, experienced, capable, and communicative.  While being aggressive is sometimes necessary in litigation, understanding when it is appropriate to be aggressive and when it is best to attempt to resolve the issues is a characteristic of a capable attorney.

Attorney Fees – Can I Force the Opposing Party to Pay My Attorney Fees?

One common question that I hear is whether a party may be able to force the other party to pay their attorney fees.  This question is especially common in situations where a party believes that the other party has unnecessarily dragged along the litigation, thus increasing the cost of the attorney’s fees in the case.

Tennessee follows what is known as the American Rule, which states that a party must pay his or her own attorney fees unless their is a contractual provision or statute that provides otherwise.  Therefore, parties may enter a contract and include a provision that the at-fault party or the unsuccessful party in a future lawsuit must pay the opposing party’s attorney fees.  Also, Tennessee statutes provide an avenue to recover attorney fees from the opposing party in certain types of cases.  However, unless there is a controlling contract or statute, then everyone must pay his or her own attorney fees, regardless of the outcome of the case.

In domestic law cases, including divorce, child custody, and child support, Tennessee does provide statutory authority and guidance for awarding reasonable attorney fees.  For a divorce, an attorney fee award is considered alimony in solido (otherwise known as lump sum alimony), and is commonly awarded when one spouse is economically disadvantaged and the other has the ability to pay.

For child custody and child support cases, Tennessee Code Annotated Section 36-5-103(c) provides the following guidance:

“The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.”

Additionally, the Tennessee Supreme Court has held that “[i]n cases involving the custody and support of children … it has long been the rule…that counsel fees incurred on behalf of minors may be recovered when shown to be reasonable and appropriate.” Deas v. Deas, 774 S.W.2d 167, 169 (Tenn.1989).  In fact, attorney fee awards in custody and support proceedings are familiar and almost commonplace.

In conclusion, unless a statute provides an avenue for an attorney fee award or a contractual provision governs future attorney fee awards, each party must bear his or her own attorney fee expenses.  In cases involving divorce, child custody, and child support, the Tennessee legislature has created an avenue for a party to be ordered to pay the other party’s attorney fees.

 

 

Is there a Preference for Mothers Over Fathers in a Child Custody Determination in Tennessee?

One question that comes up regularly in my practice is do Tennessee courts prefer mothers to fathers when it comes to making a child custody determination?  The answer is that the current state of the law in Tennessee clarifies that no preference in a child custody determination shall be given based upon the gender of the parent.  However, that has not always been the case.

Previously, Tennessee followed what was known as the tender years doctrine, which was a presumption that mothers are generally better suited to be the primary residential parent over fathers.  The tender years doctrine carried great weight in child custody determinations, particularly when the custody of young children was at issue.  Like many traditional notions that have given way as our understanding of human development evolves, the tender years doctrine was rooted in the assumption that mothers are simply more fit to care for children than fathers.

However, case law over the years slowly eroded the power of the tender years doctrine, until Tennessee legislators enacted a new law that officially abolished the presumption of mothers over fathers in child custody determinations.  Tennessee Code Annotated Section 36-6-101(d) provides that “It is the legislative intent that the gender of the party seeking custody shall not give rise to a presumption of parental fitness or cause a presumption or constitute a factor in favor or against the award of custody to such party.”  Rather, the court will conduct the comparative fitness analysis and determine the child custody arrangement that will be in the best interest of the child.  For more information on the best interest analysis, click here.

The abolition of the tender years doctrine as evidenced by Tennessee Code Annotated Section 36-6-101(d) has been affirmed time and again by appellate courts in Tennessee.  In fact, in 2014 the Tennessee Supreme Court clarified that a trial court that applies a presumption in favor of maternal over paternal custody would have committed legal error that would be deemed an abuse of discretion.  Kelly v. Kelly, 445 SW 3d 685, 695 (Tenn. 2014).

In conclusion, courts in Tennessee are not to provide any preference to mothers over fathers in a child custody determination based solely upon their gender.  Additionally, Tennessee Code Annotated Section 36-6-106(a) provides that “the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child” consistent with the factors set forth in the aforementioned best interest analysis, the location of the residences of the parents, the child’s need for stability and all other relevant factors.  Therefore, Tennessee law now recognizes the equal importance of mothers and fathers in providing for the care and custody of their children.

Paternity in Tennessee – Rights, Establishment, and Obligations

Establishing paternity in Tennessee is crucial for biological fathers who are not married to their child’s mother – especially if they are not living in the same home as the mother.  Paternity, in the legal sense of the word, means that a person has established himself as the legal father, and will be treated as such by the law.  While every child has a biological father, every child does not have a legal father if paternity has not yet been established in the eyes of the law.

Once paternity is established, the father has the same rights as the mother in Tennessee, including the right to the care and custody of the child as well as the obligation to provide child support.  Additionally, establishing paternity gives a father additional rights, such as rights to the child’s medical and educational records, the right to petition the court for custody, and the right to speak to the child on the telephone.  In Tennessee, the law no longer provides any preference to a parent in a child custody cased based on the gender of the parent.

There are a number of methods of establishing paternity in Tennessee.  First, there is a rebuttable presumption of paternity when a child is born either during a marriage or within 300 days following a divorce.  This presumption may be rebutted by other evidence that the child is not the biological child of the husband from the divorce, such as a DNA test that establishes that another man is the biological father.  Such a presumption of paternity may be overcome by other evidence that establishes paternity in another man by a preponderance of the evidence (more likely than not).  A similar rebuttable presumption of paternity is created when a minor child resides with the man and the man openly holds the child out to the public as his natural child.

When the parties are unmarried, the father may establish paternity by signing a Voluntary Acknowledgement of Paternity.  However, both the mother and the father must agree to sign the Voluntary Acknowledgement of Paternity, and it can be risky for a potential father to sign a Voluntary Acknowledgement of Paternity before a DNA test has confirmed that he is the father.  Similarly, a father may sign the child’s birth certificate in order to establish paternity; however, the same risk may apply if a DNA test has yet to confirm paternity.

When the parties are unmarried, there is no legal father yet established, and the parties are not in agreement regarding who is the child’s father, then one of the parties may file a Petition to Establish Paternity.  Once a petition is filed, the court will likely order a DNA test to be conducted, and the court will enter an order establishing paternity in the father if it is established that there is a 95% or higher likelihood that he is the child’s biological father.

Establishing paternity in Tennessee has a number of legal ramifications, including the right to spend time with the child, the right to petition for custody, and the obligation to provide support for the child.  If you believe you are the biological father of a child and have not yet established paternity, you may want to consider contacting an attorney to navigate you through the process of establishing paternity.