Articles Posted in Divorce

After a divorce has been finalized, a change in circumstances may cause new and unexpected disputes between the ex-spouses.  An October 25, 2017 case involving a post-divorce modification of a parenting plan illustrates the issues that may arise following major lifestyle changes.  The case came before the Court of Appeals of Tennessee after the trial court found a material change in circumstances existed and modified the parties’ existing parenting plan.  The mother appealed insofar as the trial court did not completely adopt her proposed plan, and the father argued there was no material change in circumstances.children

The parents in the case had one child during their marriage.  Their original parenting plan designated the mother as the primary residential parent but gave each parent equal parenting time and joint decision-making in the areas of education, non-emergency health care, religion, and extracurricular activities.  The mother subsequently filed a petition to modify the parenting plan shortly after the father had converted to Messianic Judaism.  The mother, a practicing Christian, alleged that their conflicting social and religious views concerning the child’s upbringing had led to ongoing disagreements regarding vaccinations, education, secular holidays, and other subjects.  The court awarded educational and non-emergency health care decision-making authority to the mother, as well as additional parenting time on religious and secular holidays.

In Tennessee, to modify a parenting plan, the court must first determine whether there has been a material change in circumstances since the entry of the existing parenting plan.  Secondly, the court applies statutorily enumerated factors to determine whether a modification of the parenting plan is in the best interest of the child.

Continue reading

Property distribution in a Tennessee divorce case is often a contested issue between the parties, particularly when determining whether an asset is separate or marital property.  In a September 29, 2017 decision, the Court of Appeals of Tennessee reviewed a lower court’s order distributing the spouses’ property in their divorce case.  One of the wife’s arguments on appeal concerned the lower court’s categorization of a duplex as the husband’s separate property.houses

The spouses had been married for 13 years before their divorce in 2015.  The husband was employed as a real estate broker, and the wife was a teacher.  Four years prior to the marriage, the husband purchased a duplex rental property, secured by a mortgage.  The rental income generated from the duplex was used to pay the mortgage on it.  The husband had spent around $33,000 of his income during the marriage to remodel the duplex, and the taxes and insurance were paid from his income.  The wife’s name had never been on the deed to the property.  In 2004, the husband refinanced to borrow against the property, and the wife signed a deed of trust to relinquish any marital interest she had in the duplex.  The property was fully paid off in 2012.

Tennessee is a dual property state because its domestic relations law recognizes both marital property and separate property.  When a married couple seeks a divorce, the marital property must be divided equitably between them, without regard to fault on the part of either party.  Marital property means any property acquired by either or both spouses during the course of the marriage, and it may include an increase in the value of and income from separate property during the marriage if each party substantially contributed to its preservation and appreciation.

Continue reading

It is not unusual for parents to have disagreements regarding their children’s upbringing after a Tennessee divorce.  If there are significant decisions that cannot be resolved, the parties may have to settle their dispute in court.  In an August 2, 2017 opinion, the Court of Appeals of Tennessee reviewed a case involving a post-divorce modification of a parenting plan.  The mother filed the petition, alleging that the father had preemptively refused to pay their oldest child’s private school tuition and failed to pay for the children’s extracurricular expenses.graduation

The parties in the case were the parents of two daughters at the time of their divorce in 2007.  The permanent parenting plan entered into at the time of the divorce stated that the parties would share joint decision-making regarding the children’s educational decisions, extracurricular activities, and religious upbringing.  It also stated that the parties would each pay half of the cost of all private school tuition and any other school or extracurricular expenses incurred on behalf of the children, upon which expenses they had mutually agreed in advance.

The mother proposed a modification that would require the private school tuition to be paid pro rata to the income of each party.  She also requested that the court designate her as the sole decision-maker for the children.  The father contested the change and further averred that the mother had enrolled the older child in a private school over his objection.  The mother admitted that she had enrolled the older child at the private high school without the father’s agreement, but she argued that the father had unreasonably withheld approval and that it was in the child’s best interest to attend the school.

Continue reading

Spouses who divorce after a lengthy marriage may have disputes related to a sudden change in income or other financial concerns.  The Court of Appeals of Tennessee considered the issue of transitional alimony in an August 1, 2017 case.  The spouses in this Tennessee divorce case had divorced after nearly 30 years of marriage.  The husband brought the appeal, contesting the trial court’s award of transitional alimony to the wife.check

The spouses had resolved many of the issues related to their divorce through mediation, but with the question of alimony unsettled, the matter went before the trial court.  Testimony established that the husband’s post-divorce gross monthly income would be approximately $9,500, while the wife’s income was estimated at $3,600.  After deducting their respective expenses, the lower court ordered an award of transitional alimony paid to the wife in the amount of $500 a month for the next 12 years, until the wife could claim Social Security retirement benefits.  In his appeal, the husband challenged both the amount and duration of the alimony awarded, arguing that the wife failed to demonstrate a sufficient need for it.

In Tennessee, alimony decisions by the court require the careful balancing of many factors, which are provided by law.  The two most important factors are the disadvantaged spouse’s need and the obligor spouse’s ability to pay.  Other factors that courts are directed to consider include, but are not limited to, the duration of the marriage and the standard of living enjoyed during the marriage, the age and physical condition of the spouses, the education and training of each spouse, their separate assets, and, if appropriate, the relative fault of the parties.

Continue reading

Settling property matters between divorcing spouses can be difficult, particularly in high-asset divorce cases.  In a July 11, 2017 case from the Court of Appeals of Tennessee, part of the spouses’ dispute centered around an art collection and two rings gifted from the husband to the wife during their marriage.  After a trial, the lower court ruled that the art collection would be divided equitably, and each spouse would receive one ring.  The parties filed a subsequent appeal.wedding rings

Tennessee is a dual property state, meaning that there is a distinction between marital property and separate property.  Generally, assets acquired by either spouse during the marriage are presumed to be marital property, and assets acquired by either spouse before the marriage are presumed to be separate property.  In addition, assets acquired by one spouse by gift, bequest, devise, or descent are also considered separate property.  Significantly, separate property is not part of the marital estate and is therefore not subject to division.  If the spouses cannot agree on how to divide property in the event of divorce, the trial court will classify the spouses’ property as marital or separate and assign a value to each piece of property subject to division.  The court will then divide the property in an essentially equitable manner, without regard to the marital fault.

At the time of the divorce, the spouses in the case owned a collection of artwork consisting of three reproductions of paintings that the wife testified were purchased with marital funds and one original painting that the husband gifted to the wife as a Christmas gift.  The appeals court found that the only evidence on the matter of the reproductions was the wife’s testimony and the affidavits of both spouses, which listed the art as marital property.  Accordingly, the appeals court affirmed the trial court’s award of the original painting to the wife as her separate property, but it concluded that the reproductions should be classified as marital property on remand.

Continue reading

Issues concerning children and other personal matters are often disputed in divorce cases.  In a June 15, 2017 case from the Court of Appeals of Tennessee, a father argued that the lower court erred in not awarding him equal parenting time with the spouses’ three children and in not granting a fault-based divorce due to the mother’s infidelity.  The spouses had filed for divorce in 2015, each alleging inappropriate marital conduct on the part of the other.  The trial court’s order granted a divorce without finding fault, designated the mother as the primary residential parent, and awarded visitation rights to the father pursuant to a schedule.child's hands

On appeal, the father contended that the trial court should have awarded him more time with the children.  The father cited Tennessee’s parental custody statute, which provides that, when taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the child’s life, and that is consistent with certain factors, including the location of the residences of the parents, the child’s need for stability, and other relevant considerations.

The appeals court noted, however, that the rule does not mandate that each parent spend equal time with the child when such a schedule would not serve the child’s best interest.  The court also explained that the trial court’s analysis is guided by a number of other factors, including which parent served as the primary caregiver of the children, which parent is more likely to foster a relationship with the other parent, the stability and continuity offered by each parent, and the preferences of older children.  In the case, the mother worked from home, while the father worked outside the home and was unavailable during much of the week.  The court ruled that, under these circumstances, the trial court was well within its discretion to create a parenting plan that provided the mother with the majority of parenting time during the work week and alternating weekends.

Continue reading

It is important to understand your rights before signing an antenuptial agreement, as well as the consequences of its execution.  In a May 17, 2017 decision, the Court of Appeals of Tennessee reviewed a divorce case involving an antenuptial agreement that the spouses signed before their marriage in 1997.  As a result of that agreement, the trial court classified the bulk of the assets as the husband’s separate property, divided the modest amount of assets that were classified as marital property, and awarded the wife alimony in futuro and alimony in solido.contract

In Tennessee, spouses may control the disposition of property in the event of a divorce with an antenuptial agreement.  Antenuptial agreements are valid and enforceable as long as they are entered into freely, knowingly, and without duress or undue influence.  The terms of a valid antenuptial agreement will be applied instead of the statutory definitions regarding the distribution of marital and separate property and general principles regarding equitable distribution.

On appeal, the wife argued that property acquired by the spouses after the marriage by means of the husband’s earned income should be classified as marital property.  In considering the issue, the appeals court observed that the antenuptial agreement failed to provide a definition for the term “property.”  Accordingly, the court construed the agreement as a whole in order to ascertain the parties’ intent from the usual, natural, and ordinary meaning of the language.

Continue reading

There are any number of situations that can complicate the settling of a decedent’s estate after their death.  In a March 7, 2017 case before the Court of Appeals of Tennessee, the decedent was in the midst of divorce proceedings with her estranged husband at the time of her death.  After the trial court concluded that the decedent’s assets were to pass to her estranged husband, the personal representative of her estate appealed the decision.house

The decedent in the case was in the process of divorcing her estranged husband at the time of her death.  The decedent and her husband had executed a separation agreement as part of the divorce proceedings, in which they agreed to individually maintain ownership of specified marital assets and execute the documents necessary to effectuate the transfer of each asset.  However, the decedent passed away before the respective transfers of property were made, and her personal representative filed an action seeking to enforce the terms of the settlement agreement.  The husband argued that the agreement had been rescinded because the parties failed to perform under the agreement.  The trial court determined that the agreement had been rescinded by the husband, and in ruling in this way, all jointly owned marital assets passed to him at the decedent’s death.

On appeal, the court initially determined that the agreement was enforceable pursuant to ordinary rules of contract construction, despite the absence of a final divorce judgment.  Since the agreement was executed in Georgia and contained a choice of law provision, the court looked at Georgia’s statutes governing contracts.  Accordingly, to justify rescission, there must be a material nonperformance or breach by the opposing party.  However, the right to rescind belongs only to a party who is free from substantial default himself.  A party who has substantially broken the contract cannot rescind it on the ground that the other party subsequently refused or failed to perform.

Continue reading

Even when a settlement agreement has been reached in a divorce case, subsequent issues may bring the matter back to court.  In an April 13, 2017 decision, the Court of Appeals of Tennessee reviewed a post-divorce dispute regarding the wife’s claim against the husband for a portion of his military retirement benefits, among other claims.  The lower court had ruled that the wife was entitled to approximately 30 percent of the husband’s retirement benefits going forward, but it declined to award her any portion of the benefits he received prior to the hearing because she had not presented sufficient proof as to the amount of those benefits.  The wife timely appealed the matter to the higher court.retirement money

The parties in the case were married in 1979 and had two children before divorcing in 1998.  The parties mediated an agreement on the terms of the divorce and custody of the children, which was incorporated into the final divorce decree entered by the court. The marital dissolution agreement provided that the wife was entitled to the maximum allowable pension benefit available to her through her husband’s former employment with the U.S. Army, but not more than 50 percent.  In 2004, the husband was notified that through an error, he was not eligible for retirement pay.  The husband returned to the military and eventually qualified for military retirement benefits, albeit a different type of benefits than he was originally promised.  The wife filed a complaint in 2015 against the husband for his alleged failure to provide her with her share of his military retirement benefits, pursuant to the parties’ marital dissolution agreement.

Continue reading

After a divorce, there are many decisions to consider regarding the couple’s children and financial obligations.  In a March 1, 2017 decision, the Court of Appeals of Tennessee considered an appeal of a trial court order concerning the father’s obligation to pay private school tuition and the mother’s imputed income for the purpose of calculating child support.graduation-1311237-639x852-225x300

In the case, the Final Decree of Divorce entered by the trial court incorporated the parties’ permanent parenting plan, wherein the father agreed to pay for his children’s private school education through high school.  In settling the amount of child support, the court also found that the mother was voluntarily unemployed and imputed to her an income of $72,000.  In March 2015, the father filed a petition seeking to modify his obligation to pay the tuition.  The lower court denied this request, holding that the father’s tuition obligations are not subject to modification.  The trial court also denied the mother’s request to modify her support obligation.

While Tennessee courts do not have authority to order a parent to pay the undergraduate or post-secondary tuition of a child who is at the age of majority, if a parent enters into such an agreement it will be enforced by the Tennessee courts.  This type of agreement retains its contractual nature when included in the final decree of divorce, and cannot be modified by the court.  However, tuition for private grade school or high school is considered an extraordinary educational expense that may, in some circumstances, be a part of a parent’s duty to support his or her child.  Unlike an agreement to pay college tuition, a parent’s agreement to pay for private elementary or secondary education may be subject to modification if it is incorporated into the final decree of divorce.

Continue reading