Articles Posted in Divorce

Allegations of domestic violence or abuse are serious, especially in divorce and child custody cases.  A March 1, 2018 decision from the Tennessee Court of Appeals reveals some of the legal considerations and issues that may be involved.  The parties in the case had one child together during their marriage.  After a trial, the court declared the parties divorced and entered a final order designating the father as the primary residential parent.  On appeal, the mother contended that the trial court failed to properly consider the father’s history of domestic violence and abuse against her.hands

In Tennessee, the final order in a divorce action must incorporate a permanent parenting plan for the parties’ minor children, including a residential schedule and designation of a primary residential parent.  In developing the plan, the trial court must consider certain statutory factors and any relevant statute.  In particular, TCA 36-6-406(a)(2) provides that a parent’s residential time must be limited if the court finds, based upon a prior order or other reliable evidence, that the parent has engaged in physical or sexual abuse, or a pattern of emotional abuse, of a parent, child, or other person living in the household.

In the case, the trial court found that the father committed domestic violence against the mother.  Although the incidents were not reported to the police, they were corroborated by the testimony of several witnesses, who stated that they saw the mother’s bruises, black eyes, and busted lip.  The court also considered the fact that the mother had once left the child in a hot car and was currently living with a man who had been convicted of a felony, among other considerations. Ultimately, the trial court found that while it was greatly concerned with placing a child with a man who had engaged in physical abuse, under the totality of the circumstances, it was in the child’s best interest that his father be designated as the primary residential parent.

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After a divorce, modifications to court-ordered support obligations for a spouse may be possible in certain situations, such as retirement.  In a Tennessee spousal support opinion issued on January 3, 2018, the Court of Appeals of Tennessee reviewed whether a post-divorce modification of alimony in futuro was appropriate after the husband retired.coins

The spouses in the case had divorced in 2011 after 42 years of marriage.  Their divorce decree provided that the husband would pay monthly alimony in futuro to the wife.  In 2012, the husband suffered a heart attack and sold his dental practice shortly thereafter.  He filed a petition to terminate his alimony obligation, since he was no longer able to pay.  The trial court found that despite a substantial and material change in circumstances as a result of his retirement, the husband had the ability to pay, and the wife had the need for support.  The husband appealed the decision.

In Tennessee, an award of alimony in futuro may be increased, decreased, terminated, extended, or otherwise modified upon a showing of a substantial and material change in circumstances.  On appeal, the court agreed that the husband’s retirement was objectively reasonable and constituted a material and substantial change of circumstances.  The court next considered whether a modification was justified in light of all of the statutory factors.  In making its determination, the two most important considerations are the financial ability of the obligor to provide the support and the financial need of the party receiving the support.

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Agreeing to child custody changes outside of court may affect future proceedings to modify a court-ordered parenting plan.  A January 9, 2017 Tennessee child custody case before the Court of Appeals of Tennessee illustrates the complexities of this issue.  The appeal arose out of the modification of a parenting plan in a post-divorce action.family

The parents in the case had divorced in 2010, and a permanent parenting plan was adopted as part of the divorce decree.  Under that plan, the parents were awarded equal parenting time.  When the child started school in 2012, however, the parents informally modified the parenting schedule, since the parents were living in different counties.  Their arrangement provided the father with parenting time every other weekend, with holidays and school breaks split equally.  In 2015, the mother sought court approval of their informal arrangement by filing a petition to modify.  When the trial court adopted the mother’s proposed plan, the father appealed.

In Tennessee, the modification of an existing parenting plan requires the parent who seeks the change to prove that a material change of circumstances exists that affects the child’s best interest.  Unlike the process to switch the primary residential parent, the threshold to establish a material change of circumstances is very low when the court is merely changing a parenting schedule.  As a result, a material change of circumstances may include, but is not limited to, a failure to adhere to the parenting plan under the relevant statute.

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When alimony is awarded to one spouse after a Tennessee divorce, it is not uncommon for disputes to arise in the future, particularly if there is a change in circumstances. In a December 11, 2017 case, the Tennessee Court of Appeals considered whether the husband’s alimony obligation should be reduced, and whether, in light of his failure to pay that amount in full, he should be held in criminal contempt.empty pockets

The parties had divorced in 2007 after 22 years of marriage. Their settlement agreement, which was incorporated into the divorce decree, provided that the husband would pay the wife 50 percent of his gross income as alimony, until the death of one of the parties. In a separate agreement, the parties agreed that the husband would also pay half of his bonuses and that the remarriage of either party would not terminate the alimony obligation.

In 2015, the husband filed a petition to modify his alimony obligation, claiming that his income had not kept up with inflation since the time of the divorce. He argued that he could not afford to purchase a home and owed a significant amount of taxes, while the wife had a job making $20 per hour and had purchased a home. The wife opposed the petition and also asserted a counterclaim for an arrearage judgment, requesting the court hold the husband in contempt for alimony that he had failed to pay.

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Some parents are unable to reach an out-of-court child custody agreement during a divorce to submit to the court.  When these situations turn into prolonged courtroom litigation, a Tennessee child custody attorney can work to protect the interests of their clients in court.  A November 22, 2017 post-divorce case before the Court of Appeals illustrates the complexity of child custody disputes.man in jacket

The parents in the case divorced in 2007 with two children.  The trial court had entered a permanent parenting plan designating the mother as the primary residential parent of the older son and the father as the primary residential parent of the younger son.  In 2010, the parties sought a modification of their parenting arrangement, and the trial court allowed a divorce referee to hear the matter.  In 2012, the referee filed a recommendation that the mother should be designated as the primary residential parent for both of the children, which was adopted by the trial court.  The appeals court subsequently vacated and remanded the matter for the trial court to conduct the proceedings.

During those proceedings, the parties both sought to be the younger child’s primary residential parent, since the older child had reached the age of majority.  At the hearing, the father repeatedly requested that the child, who was 13 at the time, be allowed to express his preference to the court regarding where he wanted to live.  The trial court refused the request and ultimately designated the mother as the child’s primary residential parent. The father filed another appeal.

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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.

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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.

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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.

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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.

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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.

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