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Co-Parenting in the Tennessee Parenting Plan Environment By: Nicholas W. Utter, Esq.

          I have been involved in divorce and child custody litigation for almost thirteen years. Two of those years were spent serving a domestic Judge, in a domestic court, and the remainder as a lawyer.  I have seen and heard a lot in that time.  The court experience for most is generally an unpleasant one, and the aftermath can lead to a great deal of resentment.  Parents resent the other for things that occurred during the litigation, and even a child might harbor resentment towards one or both parents.  While individual counseling is certainly helpful in addressing these issues, there are some common themes to complaints I receive from individuals, post litigation.  Most do not rise to the level of justifying post judgment modifications and other actions.  However, persistent problems that are minor in nature, can build up over time.  These minor problems can influence later larger ones.  Further, a series of minor issues can pile upon enough that it will lead to later litigation.  At the end of the day, it is best for the parties and their offspring, to avoid minor skirmishes and do what is best for the children in the post divorce/custody environment.  Regardless of the status of your relationship with the other party, you chose them to be the father or mother of your child.  Regardless of what one may think later about one’s choice, it is pretty much a permanent one.  Just try and make the best of it.  To that end, I share a handful of my ‘pearls of wisdom.’

  1.  The Parenting Plan controls everything.  If the Plan provides for something, unless both parties agree to do something different, the Plan dictates (except that child support cannot be waived).  A Parenting Plan is literally a court order, providing for how parenting is to occur and when.  It is enforceable in Court via the Court’s Contempt powers.  One can go to jail for violating it.  The support provisions are mandatory, the co-pays on medicals are mandatory, the visitation schedule is mandatory, the restraining orders (if included), are mandatory, the decision making process is mandatory.  Do not make the mistake of thinking either of you have discretion to not do something that is required. Remember that persistent non-compliance with a Parenting Plan can constitute grounds for a modification of the Plan, or a change in custody.
  2. Being designated Primary Residential Parent does not confer some special authority that allows one to henpeck the other party about their parenting.  The status merely refers to the parent that has the majority of time with a child. It does not establish that parent as a “quasi judge.”  There are some things that come with being primary, such as income tax deductions for the children. There may be language in the parenting plan that gives the Primary Parent preference on joint decision making.  But being designated primary does not confer special judicial powers to call the shots.  I see this most commonly in situations where the Primary Residential Parent attempts to dictate how the other parent exercises their time, often  by threats to withhold the child from visiting the other parent—which can result in a contempt petition being filed against the Primary Residential Parent.  Further, one parent henpecking the other about their parenting, or how they spend their parenting time, is a recipe for a very bad post litigation relationship.
  3. If both parties agree to modify something regarding the parenting plan temporarily, then confirm it in writing.  An email or letter works best, but at a minimum via text.  Save the test or writing.  This ensures that everyone agrees, and there is no argument about what the agreement is.  It also allows one to produce the agreement later, in court, if necessary.  If permanent changes are desired or needed, it is best to do so via modification of the Parenting Plan itself, for which, one should consult their lawyer.
  4. Do not rescind an agreement to modify something in the parenting plan, at the last minute, unless it is an emergency situation. In my experience, the withdrawal of consent is often done out of spite, and over something that occurred following the agreement.  Technically, the withdrawal of consent can be effective to withdraw consent at the last minute.  But if one uses this approach to punish the other parent, the action can be taken into consideration during later legal proceedings. Consider that basically, by doing so, the child is being used as a pawn, and essentially punishes the child as well.   This conduct also works against the obligation of the custodial parent to “foster a relationship with the non-custodial parent.”
  5. Do not interrogate your child or children about what they do during the other parent’s time.  That time belongs to the other parent. Respect that.  Children have a tendency to talk about things that bother them, and will exhibit marked changes in behavior if they are being subjected to abuse.  In those cases, it is advisable to get them to a licensed professional who has training in deciphering these behaviors, and dealing with them.  Unless a substantial threat exists to the health, safety and/or welfare of the child, the other parent is free to exercise their time however they see fit.  When such a threat does exist, then a consultation with a lawyer is necessary. Otherwise, see Number 2 above.
  6. Do not interrogate the other parent about what they do with the children during their parenting time.  If you maintain a descent relationship, then perhaps you will know about what they do via pictures, social media, relatives, text messages, conversation and the like.  If one does not have a good relationship, then accept that you are not going to know every detail about what goes on when the other parent has parenting time.  Again, children will talk about the things they did that they enjoyed, or disliked, without the need for interrogation. If one parent has specific concerns about what is going on, a lawyer will be able to assist with determining whether or not further investigation is warranted. Otherwise, see number 2 above.
  7. False accusations of sexual abuse.  These occur more commonly than one might think, and is a slippery slope.  A false allegation against another parent, in Tennessee, can be grounds for a change of custody entirely.  This means that one parent can lose custody of their child or children, because they made a false allegation of sexual abuse against the other parent.  That is a severe punishment.  This must be balanced against the nature and justification giving rise to the concern.  Consider that the law requires any person having knowledge of abuse to report that abuse. The concern here involves false allegations. Those known to be untrue, or those about which there exists little to no factual basis for.  Should a parent have any concern regarding such an issue, one should consult their lawyer.  A lawyer will assist a parent in determining whether or not the concern is justified, and how to handle it.
  8. Pay all financial obligations required by the Parenting Plan.  Child support is a big one.  Support should be paid, as required.  This means the amount needs to be what was ordered, and the payment needs to be made at the time that it is ordered.  A support obligation is not subject to waiver by the other party.  This means that one parent still owes the money, even if the other parent says they don’t want the money.  I have had cases where the parent paying the obligation winds up with a huge judgment against them later, because the other parent said essentially “don’t worry about it.” Minds change when money is tight.  It is also important to pay through the Sate of Tennessee, if that is what was ordered.  Payments made directly to one parent, in cases where it is ordered to be paid through the State of Tennessee, can be legally considered  gifts.  Thus, payments not made as the order requires, may very well be paid twice.
  9. Pay the required portion of medical co-pays.  These are also required to be paid, and one can be held in contempt for not paying. The party requesting payment is generally required to send the bill to the other parent, who then must pay their share within a specified amount of time.  I have seen cases where one parent has held on to the bill for an extended amount of time, before requesting reimbursement.  The Court will typically require reimbursement regardless.  However, sitting on such bills for an extended period of time, may work against one’s ability to punish the other parent for non-payment.  Sitting on medical bills and then dumping huge amounts of expenses upon the other parent, is not the proper way to go about obtaining compensation, and doing so is likely to impair the relationship between parents.
  10. If you are the party paying, keep good records of the payments, in terms of the amount of payment, and what the payment was for.  I suggest people do this by check, as it is easy to confirm that the payment cleared. I have seen people pay twice, when payment was made by cash or money order—because there is no easy way to confirm realization of the payment (i.e. ‘they got the money’).  All the payee has to say is “I didn’t get it.”  Typically, the burden of proving the payment was made, and received, is on the person making the payment. That might not be fair, but that is what it is.
  11. If the decision making is “joint,” consult the other parent.  Typically, these concern areas of extra-curricular activities, education, non-emergency medical, and religious upbringing.  Typically, the Parenting Plan requires that disagreements on joint decisions must be submitted to mediation.  Unilateral decision making in joint areas can result in contempt proceedings and sole financial burden for the decision made. Further, disregard for joint decision making gives the appearance that one parent is minimizing the other parent’s participation, which could impact later litigation if it happens.
  12. Respect the other parent’s time.  Do not enroll the child in activities that occur during the other parent’s time, unless they agree to it.  In practice, this presents itself as one parent attempting to usurp the other’s parenting time, by scheduling the child for a host of activities during that other parent’s time.  This typically breeds further litigation.  Remember that the other parent may not be obligated to convey the kids to the activity during their parenting time—absent a court order to the contrary. If both parents have agreed to the activity, it will be expected that both parents ensure the child’s participation in that activity.  As children grow older, and engage in school activities, it is important for the alternate parent to remember that kids, as they age, need their social activities as well.  Withholding a child from such activities, when the kids get older, can breed resentment in the children over spending time with the alternate parent.
  13. Keep the alternate parent informed of what is going on with the children’s health.  This can be an email or just a text.  I generally advise email, as they are easier to save, and provide a good record if needed later. Assume any communication you make will be seen by a Judge one day.  Social calendar and school/church events are good things to provide the other parent.  If the child is sick, let the other parent know, and not just when the child is sick after the child has spent time with the other parent.   Typically, one parent spends the majority of time with the child, and winds up being the parent taking the child to doctor’s visits and dental appointments.  Feedback regarding the health reports of the child is helpful to maintaining a good co-parenting relationship.
  14. Involve the other parent, even when it is not their parenting time.  When the child has a school field trip, invite the other parent.  If the child has a school free day, let the other parent see the child if it is conducive one’s schedule.  It might be beneficial to give the other parent a schedule of the child’s health appointments, and see if the other parent would be interested in taking the child to them.  Doing so evidences a willingness to foster a relationship between the child and the other parent, which the law encourages. Remember that, in many cases, the post custody situation very much leaves one parent out of the child’s loop.
  15. Be accommodating as to times of pick up and delivery, during exchanges.  Depending upon the distance between the parents, strict punctuality may be difficult.  Sometimes, things happen during travel that may cause the exchange time to change a bit.  For young children, it may be that they wanted food, or a bathroom break, in route.  Perhaps one parent ran into traffic, or was caught up behind a wreck.  Maybe someone had to work later that day.  A school or social event may have interfered.  I typically tell people to give fifteen minutes each direction, in terms of pick up and deliver times.  If one parent is consistently and considerably late, or early, with exchanges, then it may be time to revisit the exchange times with one’s attorney.
  16. Do not cause drama at exchanges.  Sometimes, the exchange is the only time where two parents will actually have face time. Temptation is strong to address every problem you have with the other parent, at that time.  Remember that the children see this interaction, and adverse interaction between parents, in front of them, is bad (and can result in modifications of the Parenting Plan).  This is not a time to address one’s every grievance.  Where parents get along well, I do not generally harbor concern about what goes on during exchanges.  When parents have acrimony of any kind, the best practice is to merely exchange the children silently, and promptly depart. Periodically, it is necessary to amend the exchange location to a neutral location.  If one parent creates conflict during an exchange, the advisable thing to do is not participate in it.  If drama persists, consult your lawyer in how to best address it.
  17. Encourage kids to celebrate the other parent.  This might be as simple as having the kids make a birthday card for the other parent.  I encourage parents to remember holidays and birthdays.  Take the child shopping, buy a present for the other parent, wrap it, and let the child bring it back with them.   Have the child make crafts, paintings, pottery, cards, ornaments and such, for the other parent.  Allow, and even encourage the child to express love for the other parent, even when not with that parent.
  18. Encourage interaction with the other parent, during their off parenting time.  This applies more to the relationship between the child and non-custodial parent given the reduced time they will spend with the child.  Involve the other parent, at times where assistance is needed (like babysitting for example).
  19. Usually, the parenting plan requires that a parent have several uninterrupted phone calls with the child each week, and requires that the parent be able to send letters and cards to the child, unopened.  A child should be permitted to have contact with the other parent as much as the child desires, within reason.  Excessive contact, and contact for extended amounts of time, could be problematic (and should be discussed with a lawyer if it is of concern).  Generally, I see more problems arise with phone calls.  These calls should not be monitored by the other parent, absent good cause.  The parent should not require the child to use speakerphone and should not be listening in.  If the call is missed, the call should be returned. Calls should be structured such that they can be anticipated at certain times, on certain days. Communication to the other parent should be given, if the call time/day unavoidably interferes with something else. A call should not be recorded, unless a lawyer has advised the parent otherwise (third party recording is also illegal).  Calls should be at reasonable times.  If the child reasonably wants to contact the other parent, the child should be afforded the opportunity to do so.
  20. Do not say bad things about the other parent.  In fact, the Parenting Plan typically forbids it.  This is a hard one sometimes.  Remember that your children are the product of yourself and the other parent.  Telling a child “you are just like your mother/father” can be derogatory, and leave the child feeling poorly about themselves.  The child may begin to believe that the other parent is bad, if told enough times how bad the other parent is. Kids want to love both parents.  Further, negative comments are often repeated by children, which does nothing to facilitate a peaceful relationship between the two parents.  Same applies to saying bad things about the other parent’s relatives.
  21. Encourage the child to relate concerns about their parenting time, directly to the other parent.  Be careful of this one, as a tendency exists to have the child relate the concerns of the other parent, instead of themselves (that will get one in trouble).  The child is not the messenger.  If the child expresses concerns about the separation itself, or things relating to the separation, or involvement of the other parent, then encourage the child to discuss those concerns with that parent.  I also encourage parents to allow their children to participate in counseling, if they have trouble expressing concerns. A counselor will know how to address the concerns with the child, and can offer suggestions with how to deal with the other parent.   Both parents should be allowed the option of participating in counseling, along with their children.
  22. Do not use the child as the messenger.  Never place the child in a position of relaying adult matters to the other parent.  For example, the child should never be directed to ask the other parent where the child support money is.  That is an adult matter, as are most of what is contained within the parenting plan.  Interaction between the two parents should take place between the parents (again, I prefer use of email).
  23. Keep non-parents out of the mix.  Most often, I see this occur with grandparents and step-parents.  Sometimes, the relationship between the parents is such that communication with a third party is preferable, and in this case, can be helpful.  However, allowing one’s parents or new spouse, particularly an overbearing one, to dictate to the other parent how to exercise parenting time, or the terms of parenting time, can create problems.  At the end of the day, the step-parent has zero authority with regards to the child and the Parenting Plan.  Frankly, neither does a grand parent.  Persistent problems in this area can be addressed via court action and a restraining order.  This is a matter between the two parents, and no one else.  That applies to discipline as well.  The only person that should be disciplining the child at home, is the parent. If a third party presents an ongoing problem, one should consult their lawyer about the situation. There are means to place third parties under the control of the Court as well.
  24. Do not encourage the child to keep secrets.  Very often, a parent will specifically tell the child not to tell the other parent about something.  It may be regarding a vacation, or a new paramour, or an activity or incident inside the home. Encouraging a child to keep secrets teaches the child that it is proper to keep secrets.  This makes a child more susceptible to abuse, as secrecy is a component of that. It also teaches the child that secrets are ok, and later the child will feel more comfortable keeping secrets from both parents (like how they spend their personal time when they are older).  A child should feel comfortable talking about whatever they like, with the other parent.  However, this goes hand in hand with not interrogating the child about what goes on at the other parent’s home.  Don’t pepper the child with questions, and don’t create an environment where a child feels they must keep secrets.
  25. Accept that your relationship with the other parent is over. You have new boundaries now. Whatever transpired between two people that caused the separation is done. A new relationship now exists.  One that focuses strictly on the children.  Absent a health or safety threat to the child, the person your ex is dating is none of your business.  As long as financial obligations are met, what the other parent purchases with their money is none of your business. Where your ex goes on vacation without the kids, is none of your business.  Unless it is illegal, what they do with their personal time is none of your business.  Interrogating every friend and relative of the other parent, is not conducive to a good post custody relationship.  It is not psychologically healthy to do that in the first place.  If a parent has a specific and justifiable concern about another parent, there are proper methods for looking into those concerns, which can be addressed with a lawyer.  Constant Interrogation of the other party is not a proper method.
  26. Keep the other parent informed about vacations.  The Parenting Plan typically requires that a parent advise the other parent of the destination, address, itinerary, route of travel, where they will be staying, and a phone number that can be used to reach them in case of emergency.   Further, this practice will facilitate the ability of the non-traveling parent, to call the child while the child is away.
  27. The purpose of child support is to compensate the other parent for money they spend on the child.  The child support guidelines take into account that both parents are spending money towards the child.  The amount that is ordered to be paid, goes to the parent receiving the support, not the child.  It is compensation to that parent.  The other parent can spend it on what they want to spend it on.  The parent receiving the support should understand that, unless otherwise stated in the Parenting Plan, the sum paid covers expenses for: food, clothing, school uniforms, school supplies, and incidental expenses.  Day care is often included in the child support calculations, and when it is, then support covers that also.  Extra expenses such as extra-curricular activities and medical expenses are typically covered separately in the Parenting Plan, and divided either equally, or in relation to their respective incomes.
  28. Don’t let your kids sleep in the bed with you.  This seems to be an ongoing complaint.  For young children, this happens more often. Encourage the child to sleep in their own bed.  Sometimes a young child has a nightmare, or at times just wants to feel close to a parent, and this is fine, from time to time.  As children age, the conduct should be discouraged. A teenager sleeping in the same bed as a parent should be avoided—particularly with children of the opposite sex.  That is asking for trouble.
  29. If the child has special medical needs, such as medication, communicate that to the other parent, and send the medication, or details regarding the condition and treatment, with the other parent. If problems exist with one parent not providing treatment for a condition, particularly a life threatening one, consultation should be made with an attorney.
  30. Send the things the child brings with them to visitation, back with them, and visa versa.  For example, if the child arrives in clothes and shoes from Mom’s house, the clothes and shoes need to come back. It is not difficult to simply wash the clothes, and then clothe the child in those clothes for the return trip. By the same token, if Dad sends the child back in clothes from his house, send the child back in them.  The child will end up with clothes at both parent’s house, and toys at both parent’s house.  And those toys and clothes should wind up repatriated with the point of origin.Not doing so just comes across as petty.
  31. Understand that parents will do things differently at their respective residences.  One parent may have a set of rules that will not apply, or be enforced, at the location of the other parent.  One parent may have a different diet than the other parent. While it is better for both parents to be largely together on these things, that is not always reality. Unless the differences amount to a major health or safety issue, not much can be done about it. In cases where the health and safety of a child is threatened, consultation should be made with a lawyer.
  32. Understand that the child will be exposed to new people, including romantic partners.  People move on, and build new social circles.  It is difficult to prohibit one parent from introducing a child to new friends and romantic interests. With romantic partners, the slope is indeed slippery, regarding what is appropriate.  Some Parenting Plans make specific prohibitions against paramours, and in those cases, specific legal advice should be sought regarding them.  Absent a prohibition, accept that it is going to happen. If a person is exposing a child to inappropriate or dangerous behavior, then consultation with a lawyer is necessary.  Be mindful that, where two parents have been together during the majority of the child’s life, introducing a new romantic partner can be destabilizing for them.  Care must be taken in how that relationship is introduced, and a therapist is best suited to advise on that process.

While this is not an exhaustive list, these are the more common ones.  This article is not intended to be, and should not be considered, legal advice, to any specific person, regarding any specific issue. A legal matter is complex in nature, and takes into consideration a number of specific and unique facts, that are applicable to that unique specific circumstance.  It is my hope that these points will assist in smoothing out the co-parenting environment.  Resolution of specific problems in the co-parenting process should be directed to a lawyer.  If my office can be of assistance in addressing those issues, please feel free to contact me.  Inquiries may be directed to nickutterlaw@aol.com, or my office, at 615-250-8000.

 

Question and Answer: Law, Ethics and Moral Obligation

Question and Answer: Law, Ethics and Moral Obligation Pertaining To Legal Representation

By: Nicholas W. Utter, Esq

From time to time, I receive requests from students that I answer a few questions for a class they are taking.  I make an effort to participate when asked.  I find that a lot of the questions are similar to those I am asked when out at social functions, in the company of non-lawyers.  It would seem that few outside of the practice of law, really understand what lawyers do, why lawyers do what they do, and why lawyers do things the way we do them.  Often times, the answers are complicated, and give rise to more questions.  As the questions are common ones, I thought it might be beneficial to share some of the questions I receive, and the answers I gave to them.  I received the below questions some time ago, from a friend of mine.  The questions and my responses are unedited.  My hope is that someone  will find value or knowledge in the information provided. At the very least, you will have a few answers to questions you probably have, about lawyers and legal representation.

Do you feel morally obligated to defend someone?  I feel a moral obligation to provide effective and ethical representation.  That relates to my role in the proceeding, not to any individual personally.

 

How can you represent someone if you know that they are guilty? This relates to what my role in a criminal proceeding is, in reality—as opposed to public perception of what my role is [I will refer to the question regarding my actual duties below for further explanation in that area].  Every citizen has an absolute right to have the State’s case publicly heard before a neutral panel of their peers. The State has an absolute obligation to obtain a conviction by proving, beyond a reasonable doubt, that the person charged committed the crime. The State is obligated to follow the law in how it obtains evidence and conducts its investigation.  My role at times is to make sure the government follows its’ own laws in how it approaches prosecution.  Rules govern what evidence I can put on as well. The system is designed to have both sides present their case and for the truth to come out, and be evaluated by the jury or judge.  Most of the time, I do not actually know whether a person is guilty or not, because they do not tell their lawyers either.  I typically focus my attention on what the State has in terms of evidence, and what the client has, by way of evidence or rebuttal proof, and I let the trial resolve the issue of guilt.   To be frank, I do not care whether someone in fact is guilty, only God knows that.  I care about whether the State has enough legal evidence to convince a trier of fact that they are guilty.  That is what I focus on.

Sometimes my role is more in line with trying to impose what I believe is a just punishment. If a defendant has, for example, drug related problems underlying the offense, than I will encourage defendants to obtain counseling and assessments for these dependencies.  My experience is that when a defendant is proactive in addressing underlying issues, the State is less inclined to incarcerate and a client can serve time on probation. We probably impact the sentencing side of things in most criminal cases, more so than the guilt side.  If guilt is clear and the case against them solid, my role is more in line with trying to rehabilitate a client before sentencing, in favor of more lenient sentencing, as opposed to trying to case in search of a not guilty verdict. But sometimes, I just have to try the case and let the system sort out guilt and punishment.

 

What are the actual duties that you must fulfill for your client? Most every client has no idea what they are charged with, what the elements of the offense are, what the penalties for the offense are, and what options they have in terms of addressing the charges. So a large part of my client interaction initially involves informing them of these things, and then their rights regarding the prosecution.  I also have to advise the client on any possible defenses they might have.  Around 90 plus percent of cases are pled out. Meaning the client pleads guilty in exchange for an agreed upon punishment, which most of the time involves probation.  I balance the likelihood of conviction and punishment, against what the plea offer is, and advise the client as to which course I believe their interests are best served.  In terms of what agreements to take, and whether or not to testify at trial, the client has the ultimate say, after my counsel. In terms of trying the case, strategy and witnesses are up to the attorney.  I am also responsible for conducting discovery and obtaining what evidence the State has of their guilt, and advising the client as to the admissibility of the evidence, and strength of the evidence.

 

What are your duties before the court? As an Officer of the Court, the Court expects me to keep my client appraised of Court Dates and expects me to explain to the client what they are charged with, and what their defenses are. If a plea is entered, my role is to make sure my client understands the plea and desires to enter the plea.  If the case is tried, the Court expects me to present my case competently, ethically, and with admissible evidence.  Ethically, I must respect the interests of justice, and we are not at liberty to make up evidence, or accommodate untruthful testimony.  If the case is tried, I participate in picking the jury, ask the State’s witnesses questions about their testimony, and conduct argument in support of my client’s position.  From the Court’s perspective, the attorney is standing before the Court in the stead of their client in all matters pertaining to Court administration.

 

Has there ever been a time where you felt that you should share certain information with the prosecution? I have shared information with the prosecution, after consulting with my client and receiving permission from my client to do so.  At times, a case may involve co-defendants who are unfavorable to my client. In such cases, I might share information pertaining to the co-defendants.  At times, my client may wish to help the prosecution against co-defendants.  Thus, at times, while on opposite sides, the State and the defense counsel may have similar objectives.

 

Have you ever had a defendant that you represented get found guilty even though you knew they were innocent? I have not.  I have had clients that have reluctantly requested to plead guilty because they felt probation would be better than spending a huge sum of money to try the case. I cannot say the person arrested was obviously innocent, but the cases were arguable.    On the cases that are hard for the State to prove, the State makes more generous plea offers, so at times a client may want to get things over with as cheaply as possible.  This happens probably more than most people know.

 

What do you believe is the best defense strategy to use to defend a client? I typically approach the case from a perspective of whether or not the State can prove their case, with the admissible evidence they have. If chances of guilt are high, than I usually look to a plea agreement and either an agreed upon disposition or a sentencing hearing.  If the plea offer is no better than what I would get after a trial, and the client desires to go forward, then we will have a trial anyway—and they have that right.  Each case is unique. Some cases are better defended by focusing on what the law says, instead of the conduct. That is to say, that the facts are not in dispute, but whether an offense was committed is in dispute.  Other cases are defended based upon the facts as alleged—and in those cases we focus on defending the factual assertions.  I typically obtain the facts through the client and the discovery process. I then evaluate whether any of the evidence was illegally obtained—and attack it if it was.  Next I look at whether the facts alleged are subject to compromise and lastly, I look at whether the facts as alleged, constitute a criminal offense.

 

Do you believe that clients share all information with you since you represent their interests? No. People share with you what they want you to know.  Some are more forthcoming than others.  But most every person wants to sell you with their version of what happened or did not happen.  This presents itself through omissions and minimizing, as opposed to outright lies.  I think there is probably an element of the client wanting their lawyer to “like” them as well.

 

Are there any government acts that you feel could impact attorney client privilege? Not really from my perspective. But by the time I get a client, most of them have already said things to police that cause problems.  If anything were to be changed, it would be in the initial police interview stage.  Most of those charged do not really understand what their obligation is to the police, or even why they are being questioned.  One of the biggest problems I run into is a client who may be largely innocent, but makes statements that are false that are aimed at minimizing their involvement or the identity of the person who committed the acts complained of.  At the point it is discovered that they were less than fully truthful, the police come after them utilizing some pretty sophisticated interrogation techniques.  Most of those charged are largely uneducated and have average to below average intelligence.  The combination of these two things yields statements to law enforcement that can be arguably guilt ridden in front of a jury, and a lot of mostly innocent people have probably gone to jail because of it.  By the time the lawyer gets them, the damage is done. I can’t put the client on the stand, because if the story changes on the stand, the client not only looks non-credible, but the client is also exposed to more criminal charges for false report or obstruction.  As the client is not required to testify, this would probably be one area where I might share information with the prosecution in private, during plea discussions.  But it makes it very difficult to allow one’s client to testify, knowing the story will change at trial from what the police heard.

 

What does attorney client privilege protect the individual from? The privilege belongs to the individual, not the attorney.  It creates an environment where a client can trust discussing the most intimate details of their case, without worry that those details will be repeated. It allows the attorney to gain an understanding as to everything the client knows or has experienced, if the client is truthful, and allows the attorney to advise the client on what things are helpful to the case and what things are not.

 

Are there any steps that the attorney must take to maintain attorney client privilege? We do not have any formal steps to take.  We have ethical rules that assist us in determining what we can say and to whom we can say things.  We have rules about representing other parties who are adverse to our former clients.  But from a practical standpoint, I keep some statements on hand written notes in files that never leave my office. Some things I do not write down.  I do not allow any person other than the client to see the file.  When I am done, the files stay in my office in a filing cabinet and are ultimately shredded after a number of years.  I am  careful about what is on my computer and what I send via my computer.  All lawyers are under an obligation to report inadvertent discovery of privileged material to opposing counsel and a process exists for returning that material and not utilizing the material.  The single biggest problem with privilege is for the attorney to make sure that they do not get so involved with a case that they turn themselves into a factual witness. That is, to move from the role of attorney to participant.  This is more common in civil cases, but can happen in criminal cases.  If the attorney becomes a witness (that is, the attorney has obtained facts or created facts relating to the offense, outside of those facts provided by other witnesses), then the attorney has a very big ethical problem between maintaining confidence and answering questions during a trial.  The attorney can cite privilege, but the Court can override that and Order the attorney to testify.  In terms of ongoing illegal activity, the attorney has ethical obligations to remove their involvement in the case, and in some cases, report the ongoing illegal activity.

 

TENNESSEE DIVORCE LAW AND PRACTICE Informational Overview of Divorce in Tennessee By Nicholas W. Utter, Esq.

This document is provided for information and educational purposes only. It is not intended to be relied upon as legal advice. For specific legal advice, reference is made to any licensed Tennessee attorney.  For convenience, citations to statue and case law are included below.  Persons intending to represent themselves in court should obtain information pertaining to the law from statute, the interpretive substantive law, and from the applicable rules of procedure and evidence.  Those intending to represent themselves are solely responsible for their own results.  I provide this article to my divorce clients in order to help them better understand what can be a difficult topic.  This is merely an overview, not an exhaustive review or treatise.  There are literally thousands of pages of statute pertaining to this topic, and tens of thousands of pages interpreting that.  Hopefully, the information gained from this document will help the reader better participate in the divorce discussion with their respective attorney.  The writer reserves all rights to this document.

 

 

What Is Divorce?

In order to understand what divorce is, one must first understand what marriage is.  We are all born into this world as single, individual persons, in a legal sense.  We may acquire property while we are single. Our property rights are ours individually when we are single.  From a legal sense (and we are not discussing marriage from a religious perspective here), marriage is conceptually a union of two legal persons into one legal person, mainly for purposes of holding property and rearing children.  The status confers benefits that are associated with property, survivorship, inheritance, rights to offspring, power to control affairs, power to control disposition of remains, intimacy, access to employer benefits of a spouse, access to some governmental benefits and the like.  A marriage confers upon the newly married person a whole new wing of relatives to call family.  A divorce basically undoes all of that.  People divorce for a variety of reasons but in reality, a marriage is a human relationship and frankly some relationships don’t last.  Human beings are occasionally subject to disagreements and married humans are no exception to this.  What makes the break-up of the marriage so difficult is the very thing that brought it together in the first place—the intimate relationship (both physically and emotionally).  Couple this intimate relationship with hard earned joint property holdings, shared children, and the total destruction of a life once enjoyed, the recipe is set for a bitter and hard fought battle to essentially pull apart everything that once existed in the lives of two people.  I counsel people that a divorce is the death of a relationship—with the spouse and everyone associated with the spouse (his/her family, friends, co-workers, etc…).  It takes some folks years to overcome the trauma of divorce.  Some people never overcome it.  The people who do, approach the matter practically with the understanding that the old relationship is dead and that a new relationship is possible–and advised where children are concerned.  For the most part, divorce is concerned with Financial Status and Children. Most people focus on the fault first, but that is really a secondary consideration as will be discussed further in this document.

 

Financial Status

This is a broad term, and is used in this article with a primary focus on personal property holdings, real property holdings, and need for support or assistance to maintain the standard of living (alimony).  Unlike some states, Tennessee is an equitable division state, and equitable does not mean equal, though it can be equal.  Generically, equitable means fair and fairness is determined in light of the circumstances as set forth in the divorce statute. The circumstances to be considered are set forth in the state’s written law, as embodied by the acts of the legislature.  The Court’s task is to weigh the facts as presented at trial, against the law as provided by the legislature. The result of this balance is reduced to an Order of the Court at the end of a hearing. That becomes your divorce papers, if you proceed to trial.

 

Property is typically classified in two ways:  Marital Property and Separate Property.  There is a difference between separate and marital property, and differences in the way marital property is divided.  Property that is acquired before the marriage, or received as a gift or inheritance, is generally considered separate. In typical divorce, a spouse is generally not entitled to share in the separate property of the other spouse.  An exception to this exists where one spouse has substantially contributed to the appreciation of the separate property.  In that circumstance, a spouse might be entitled to an equitable share of the appreciation during the marriage that was contributed to (such real property and retirement accounts owned before the marriage). What constitutes contribution can be argued; but, case law is extensive in this area. Further, recent acts of the legislature have exempted certain investment accounts to this rule.   Another exception can exist where separate property is jointly titled, in essence a gift of an interest in formerly separate property—which subjects it to division in a divorce case.  The exact amount in either case will vary and is set by the Court.  Notwithstanding the forgoing, equitable division primarily applies to property acquired during the marriage, typically Marital Property.

 

Marital property can include all property acquired during the marriage, regardless of which spouse is actually on the deed or title,  unless the purchase can be traced to strictly separate property or separate funds.  Marital Property can include automobiles, real estate, investment accounts, retirement accounts, collections, and can even extend to rights in proceeds stemming from litigation, such as personal injury actions. Basically, everything tangible, and some intangibles, acquired or assembled during the marriage could be marital property.

 

At trial, the Court will award each spouse an equitable division of marital property which may or may not be equal.  The division is subject to many factors, the weighing of which is, in large part, discretionary with the court, after a trial.   The Court can take into consideration the separate holdings of a spouse when dividing the marital property.   Tennessee Code Annotated §36-4-121 details some of the factors that a Court must consider in making an equitable division of property, and these include:

  • Duration of the marriage

 

  • Age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities, and financial needs of each party.

 

  • Relative ability of each party to acquire future assets and income.

 

  • The contribution to one party by the other party towards the education or increased earning power of the other party.

 

  • Contribution of each to the acquisition, preservation, appreciation, depreciation, or dissipation of the marital or separate property, including the contributions as homemaker, wage earner or parent with each given equal weight if each party has fulfilled their roles.

 

  • Value of the separate property of the individual spouse.

 

  • The estate at the time of marriage.

 

  • The economic circumstances of each party at the time the division of property is to be come effective.

 

  • Tax Consequences to each party.

 

  • Other reasonably foreseeable expenses associated with the asset (such as costs of ownership of).

 

  • The amount of Social Security earnings available to each spouse.

 

  • Such other factors as the Court deems necessary to consider as pertains to the equities of the parties.

 

  • Special consideration given towards the spouse with physical custody of the children—particularly as relates to the marital home and household effects.

 

  • Court may make an award of money or other property when the Court determines that a division of the asset would be contrary to law (such as with a business). The Court can do the same thing when, in its discretion, the Court believes it is necessary to supplement, facilitate or effectuate a distribution of marital property.  These payments may be periodic or in lump sum and can be secured by a lien as determined by the Court.

 

Once Marital Property is ascertained, the Court proceeds to the next step, to divide the marital property in an equitable manner.  This is not a mechanical process, but rather is guided by considering the factors cited above.  A division of marital property in an equitable manner does not require equal division. [i]

 

Debts, like assets, are subject to equitable division and the Court can order either party to assume debt from the marriage.  Separate debt typically remains separate but the Court can order one party to pay the separate debt of another party, where the debt was incurred for the benefit of the marriage.  The Court can consider a party’s separate assets and income in determining who to make responsible for the debt. Usually, secured debt follows the asset—meaning the party who receives the asset takes the debt with it.  At the end of the case, all debts incurred by either or both spouses during the course of the marriage up to the date of the final hearing, must be allocated equitably.[ii]  The debts that are not clearly separate, are analyzed for division.

 

Our State Supreme Court has defined marital debts as being all debts incurred by either or both spouses during the course of the marriage up to the date of final divorce.  The definition includes those debts incurred during the marriage for the joint benefit of the parties, or for the acquisition of marital property.[iii]  Marital debt is not dependant upon joint benefit.   Factors to consider in making an equitable distribution of marital debt include: (1) the debt’s purpose; (2) which party incurred the debt; (3) which party benefited from incurring the debt; (4) which party is best able to repay the debt.  One goal of allocation is to protect a spouse who did not incur the debt from bearing responsibility for the debts that are the result of the personal excesses of the other.[iv]  Some forms of personal excess that I typically see in a divorce case include debts relating to gambling, pornography charges, long distance phone charges for calls to paramours, hotel bills for liaisons with paramours, vacations with paramours, loans of money to/from a family member of one spouse without the knowledge or consent of the other spouse, and such.

 

Much of property and debt division is aimed at equalizing things between spouses and, where each is in parity with one another in terms of earning capacity and separate property holdings, one can anticipate a fairly equal distribution.  However, where earning capacity or separate property holdings are grossly unequal, one can expect the disadvantaged party to receive a greater portion of the property and a lesser portion of debt. This is true regardless of fault. Fault has zero legal bearing on property and debt allocation under current law—which is I personally am less concerned about fault in a non-alimony case.  Note that a preference of benefit exists for the spouse that has custody of the children.  The concern for which party has custody of the child,  is a trend that is carried out in the alimony provisions as well.  And for reasons further explored under Child Custody paragraph, it can be seen why the perception exits that women fair better than men in divorce court.

 

Alimony

Alimony is comparable to supplemental income provided by the other party, to a financially disadvantaged spouse.  It is paid by the advantaged spouse and can last for a short term (until the disadvantaged spouse is able to gain back financial standing) or until death or remarriage (where the disadvantaged spouse is unable to ever gain financial standing again).  The two factors most important to determining an award for alimony are the needs of the disadvantaged spouse, and ability of the advantaged spouse to pay it.  There are four main types of alimony:  Alimony In Solido, Alimony In Futuro, Transitional and Rehabilitative Alimony.  Generally, Alimony in futuro is the one that results in a monthly payment until the death or remarriage of the recipient.  Alimony in Solido is generally a lump sum amount that can be ordered paid out in installments over a period of time.  The other two, rehabilitative and transitional alimony are geared towards accommodating a disadvantaged spouse over a short period of time, and typically paid monthly.  Unlike child support, alimony can typically be tax deductible to the person paying, and taxable as income to the recipient.

 

In a nutshell, the Court will look at the relative disadvantage of one spouse as compared to the other spouse, as that disadvantage impacts the ability of one to achieve a standard of living reasonably comparable to that enjoyed during the marriage—or at least one comparable to the standard of living available to the other spouse.  The Court is to first ascertain if the economic circumstances of each are not relative to one another.  Or, in other words, whether or not the disadvantaged spouse can be rehabilitated (or assisted) on a short term basis with achieving parity (rehabilitative or transitional alimony).  If short term assistance won’t do the trick, the Court can result to more of a long term scheme (alimony in solido or alimony in futuro). The factors for determining whether a support order is appropriate, and if so, the nature, amount, length of term, and manner of payment, are provided for by statute[v] as follows:

(1) The relative earning capacity, obligations, needs, and financial resources of each party…

(2) The relative education and training of each party…

(3) The duration of the marriage;

(4) The age and mental condition of each party;

(5) The physical condition of each party…

(6) The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;

(7) The separate assets of each party, both real and personal, tangible and intangible;

(8) The provisions made with regard to the marital property…

(9) The standard of living of the parties established during the marriage;

(10)  The extent to which each party has made such tangible and intangible contributions to the marriage…

(11) The relative fault of the parties…

(12) Such other factors, including the tax consequences to each party…

 

The case law in the alimony arena is expansive and well beyond the scope of this writing. Suffice to say that the Court must weigh the above factors in determining whether or not to award alimony, how much to award and for how long to award it. The case law is clear that the two biggest factors in whether or not to award alimony is the need of the person requesting alimony (demonstrated financial need), and the ability of the counter-party to pay the financial support requested.  At the appellate level, the trial court is judged on the abuse of discretion standard, and the appellate court will not reverse the trial court unless it is clear from the record that the facts presented at trial did not support the ruling of the trial judg,e when compared against the statutory factors.  Abuse of discretion is a high standard.  The record of the trial court is developed at trial, with testimony and exhibits, with the aid of someone who knows what testimony and exhibits are needed to build that record.  The absence facts and exhibits in the record is a large reason why the self represented, lose at both the trial court level, and the appellate level.

Alimony is not awarded in every case and is rarely awarded in a short term marriage (under five years typically) especially when children are not involved.  Catastrophic health conditions acquired during the marriage by a party or a dependant can impact the decision of a Court to award alimony. Interestingly, the relative fault of the parties for causing the divorce in the first place is a factor that can be considered; but, it is not a factor that weighs any heavier than the others.  Notably, there is an edge under the alimony provisions of the statute for the person having physical custody of the children of the marriage.    However, alimony is one area where fault for the divorce comes into play, and in those cases, effort is usually made to cast the advantaged spouse as the cause of the demise of the marriage.

 

Child Custody

The children of a marriage are perhaps the lightning rod of a contested divorce case.  Most of the emotional acrimony involved in the dissolution of a marriage seems to center itself on the relationship between the parents and children.  It is these most fragile of persons that take the brunt of the divorce nastiness in contested divorce proceedings.

 

The determination of custody of minor children in the course of a divorce proceeding is again provided for by statute.  The statute lists the many factors that the Court must take into consideration, in light of the proof in the case.  This is commonly referred to as the “comparative fitness analysis,” which is further clarified in the hundreds of cases that have dealt with child custody.  A recitation of all the cases involving the child custody factors is well beyond the reach of this small writing. I have, however, tried to list some legal requirements and factual circumstances that Court will look at when weighing these factors.  With regards to these specific factors, Tennessee Code Annotated § 36–6–106 requires the Court to consider:

 

(1)        The love, affection and emotional ties existing between the parents and child (as has been evidenced by each parents interaction with the children over the course of their life);

 

(2)        The disposition of the parents to provide the child with food, clothing, medical             care, education and other necessary care and the degree to which a parent has been the primary caregiver;

 

(3)        The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;

 

(4)        The stability of the family unit of the parents (prior marriages of either party can come into play);

 

(5)        The mental and physical health of the parents;

 

(6)        The home, school and community record of the             child;

 

(7)        The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of             older children should normally be given greater weight than those of younger children (my experience is that the Court will not weight this factor particularly heavy, much to the dismay of litigants, who think it should weigh much higher);

 

(8)        Evidence of physical or emotional abuse to the child, to the other parent or to any other person;

 

(9)        The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child (the errant drunk uncle that visits, unsavory friends or friends with criminal/drug histories impact this one frequently); and

 

(10)      Each parent’s past and potential for future performance of parenting             responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child. (Often times there is one parent who will do anything they can to interfere with the ability of the other parent to foster a relationship with their child and this factor seeks to impact that kind of behavior).

 

The process the Court goes through is fairly simple. The court listens to the testimony, looks at the exhibits, then compares that with the factors listed in the law, and the relevant case law, and develops an opinion as to who is comparatively more fit to be the primary residential parent.  In this area, past performance is a good indicator of future success.  Thus, over the course of the children’s lives, who has done what during the marriage weighs heavily in the decision making process.  Some of the questions in the Court’s mind might be:

 

  • Who puts the child to bed, reads to them, tucks them in, says prayers with the child?
  • Who cares for the child when sick, takes the child to the doctor, bandages wounds and makes everything better?
  • Who makes sure the child makes good friends?
  • Who protects the child from bad friends?
  • Who takes the child to school, goes to the school meetings, knows the teachers, and helps with homework?
  • Who eats lunch at school with child?
  • Who cooks the child’s breakfast, lunch, and dinner?
  • Who does the laundry?
  • Who changes diapers and wakes up at night to tend to a child.
  • Who disparages the other parent, the other parent’s relatives, or disparages teachers and public officials?
  • Who seeks to undermine the other parent through secrets, sabotage, bribery, false accusations and unwarranted police or DCS involvement?
  • Who follows the previous Orders of the Court and who does not?
  • Who exposes the child to an improper, or immoral third party relationship during the marriage?
  • Who disciplines the child?
  • How do they discipline the child?
  • Who praises the child when the child does well?
  • Who exposes the child to illegal drugs?
  • Who exposes the child to smoking in the home?
  • Who has a criminal record?
  • What kind of living conditions does the parent live in with the child?
  • What kind of living conditions are proposed?
  • Conduct of step-siblings and relationship of step-siblings with a child?
  • Who takes the child to church?
  • Who refuses to use a child safety seat when driving with the child?
  • Who drives recklessly with the child?
  • Does the parent have a valid driver’s license?
  • Who neglects their children or fails to watch them?
  • Who has a bad temper and loses their cool?
  • Who can’t get the kids to appointments on time?
  • Which parent participates in extra-curricular activities with the child?
  • Which parent lies, cheats or steals?
  • Who is out partying every weekend?
  • Who takes solo vacations from the marriage or needs to “take a break” from it, or the children?
  • Who needs their children to look after them (parent the parent so to speak)?
  • Who parents as a buddy instead of a parent?
  • Who over-parents?
  • Who knows the child’s favorite foods, colors, places, drinks, books and friends?
  • Who makes false allegations against the other spouse?
  • Who has previously disobeyed a Court Order?
  • Who has maintained good relations with another ex spouse and who has not?
  • Who has a history of family instability?
  • Who engages in dangerous activities?
  • Who keeps dangerous pets?
  • Who keeps the children when the parent his away and what his their background?
  • Who stays on the internet all day?
  • Who lies to the Judge, IRS, employer, bankers and other fiduciary or governmental officials?
  • Who doesn’t pay taxes?
  • Who sleeps all day for no reason?
  • Who stays on the phone all day for no reason?
  • Who fails to supervise the children properly?
  • Who in general exhibits best practices for health and safety of the child?
  • Who in general exhibits the best example from a moral perspective?
  • What is the character of those with whom the child will be exposed to, when with the other parent?
  • What kind of environmental problems exist in the home of the other party?

 

 

In addition to the plaintiff and defendant, other witnesses commonly seen are:  Police Officers, Paramedics, neighbors, teachers, school counselors, friends of both parties, friends of one party, paramours, family members (it is not uncommon for the family members of a party to be called by the other party as witnesses for their case in chief), psychologists, medical doctors, vocational specialists, accountants, bankers, leasing agents or real estate agents, business partners, pastors, coaches or leaders of child sports or youth clubs, former spouses or former paramours, adult children of either or both parties, and even the minor children of the parties—although most courts frown on making a minor child a witness unless it is absolutely necessary. Which means injecting your child into the judicial proceedings could cut against you.  But basically, any person existing who can offer testimony or insight as to any one of the factors listed above, or can corroborate the testimony of any party to the action, as long as they are amenable to subpoena power, can be a witness.  Keep in mind that most judges feel they can decide a divorce case solely upon the testimony of the parties to the divorce and care should be taken to only bring in a witness that is able to bring something to the Court, that is not capable of being testified to by one of the parties.  That said, if concerns exist as to the veracity of a witness, I like to bring in a witness that can corroborate crucial testimony.

 

During the course of a hearing, one might expect some of  the following documents to find their way into evidence before the case is concluded:  Medical records, dental records, medical and dental bills, school attendance/grade reports, EMT reports, police reports, orders of protection, arrest records, court records from prior divorces or other civil actions, 911 operator tapes/reports, employment records (applications, resumes, disciplinary and performance records all game), school performance records, college transcript, court docket records, sexual offenders registry, child support payment history, driver’s license history, financial history (credit report), title to property, deed to property, social security earnings report, insurance claims, prior depositions or prior court transcripts, e-mails, paper mail (letters), phone history, phone bills, mental health records, counseling records, taped phone conversations, pictures, internet history, social network prints screen or history, bank records, credit card records, hotel billing records, cash register receipts, pay stubs, tax returns, corporate filings with the Secretary of State, business organization documents, bank statements, loan applications, rental agreements, contract for purchase of goods, contract for services, employment contracts, will, prenuptial agreement, and any other tangible document or record that supports the testimony of any witness. If a record is created or kept of any kind of activity, it is susceptible to acquisition.  There are even ways to obtain and inspect the hard drive of computer and phone equipment.  Keep in mind that all of the forgoing documents are subject to Rules of Evidence that govern whether or not the item will ultimately be admitted into evidence. Destroying any of these things (or deleting them) in contemplation of a future legal action can subject a person to substantial penalty if later discovered.  The rules for how evidence is admitted, is a cumbersome topic, beyond the scope of this writing.  Some evidence that might be necessary, would need to come from specially qualified individuals, with expertise in the subject (for example, property appraisers, vocational experts and psychologists).  There are special rules for acquiring these experts, and rules governing how their reports are admitted into evidence.  Mess these up, and a litigant will find themselves sitting before the bench, with a large stack of inadmissible papers.

 

 

After the Court determines which parent will serve as primary residential parent (we don’t say custody and visitation anymore), the Court will then set about to allocate parenting time to the alternate residential parent, in a manner that allows them to maximize their available time with the child.  In Tennessee, this is accomplished through the use of a Parenting Plan.  The law requires the that the parenting plan make provision for parenting time, decision making, and support as pertains to the minor child.[vi]  This is typically done at the conclusion of the trial when the Court announces its’ ruling and is based upon the testimony and evidence the Court received during the trial.  Both sides to contested hearing will typically file a proposed parenting plan with the court in the hopes the court will select and adopt their proposed parenting arrangement.  The Court can also create its own parenting plan.

 

With regards to the Court’s ruling on child custody, case law provides guidance for a trail court to take into consideration.  A parenting plan, should promote the development of a child’s relationship with both parents, and interfere as little as possible with post-divorce family decision-making.[vii]  The needs of the children are paramount; the desires of the parents are secondary.[viii]  Custody or visitation should never be used to punish a parent for their human frailties or mis-steps.  Likewise, custody should not be used as a reward for parents.[ix] Instead decisions on questions related to custody and visitation should be directed towards promoting the children’s best interests by placing them in an environment that will best serve their physical and emotional needs.[x] Rather than calling for heavy handed, authoritarian intervention, courts are to exercise compassionate and practical judgment in devising an arrangement that will promote the continuation and development of a child’s relationship with both parents.[xi] Lastly, while the role of provider and history as the primary caretaker seem to be listed with equal weight in the statute, the Court of Appeals in 2011 appeared to place more weight on the history of primary caregiver than on ability to provide, specifically saying:  “Given that Husband had little activity as a caregiver before the separation and the further fact that Wife also worked and contributed financially throughout the marriage, we believe the trial court erred in not assigning significant weight to Wife’s role as primary caregiver.”[xii]  Lastly, the Tennessee appellate courts have noted that the comparative fitness analysis is not intended to find perfection in a parent because perfection is unattainable; that the Court understands parties have their own unique issues. Rather, it is geared towards the careful consideration of the circumstances of the parent to determine which of the available custodians is comparatively more fit to have permanent custody of the parties minor children.[xiii]

My personal opinion is that, in practice, more weight is given to the parent that has exercised the brunt of the child rearing duties, during the marriage.  In my practice, I typically see that Mothers share more of that duty than Fathers. Thus the Mother is named primary in the majority of cases I deal with.  In cases where a Father bears more of that obligation, I expect an increased likelihood of the Father being named Primary Parent.  The cases that present themselves with a history of equal involvement of both parents, with the day to day activities of the child, are the cases that are most amenable to joint parenting time.

 

 

Dissolving the Marriage

There are two basic ways to terminate the legal relationship that is marriage.  One method is by annulment, and the other is by divorce.  An annulment is a legal voiding of the marriage, as if it never occurred, and is typically only available in certain narrowly defined circumstances.  Annulments are not discussed here.  A divorce, on the other hand, is available to person under a variety of different reasons.  For those desiring to split the property, allocate support, but continue the marriage itself (often for financial reasons relating to either medical needs or need for time to sort things out apart), Legal Separation is another option.  However, for the purposes of this writing, we shall focus on divorce itself.

 

A Divorce is in essence just another lawsuit.  In order to file this suit, one must have legal grounds to do so.  When a lawyer evaluates a lawsuit, the lawyer looks to the background facts that will support the cause of action. As we can only use the grounds provided us by statute, other issues that have arisen during the marriage that do not support the statutory divorce grounds are less relevant. This is why lawyers tend to focus on certain things during a consult, and not others.  Fault is the basis for obtaining the divorce. Property division and child custody are remedies after fault has been established and, without fault, the Court will never reach the remaining issues. This means, strictly speaking, the Court could refuse to divorce a couple if one party is unable to prove fault grounds sufficient to justify a divorce (and the other party has objected to the divorce itself).  As a practical matter, if both parties file a divorce asserting grounds against the other, the Court can simply declare them divorced without either party proving fault against the other. Tennessee law requires both parties to complete a “Parent’s Educational Seminar”[xiv] within a certain time before the divorce is granted (check with your specific jurisdiction for requirements). Tennessee understands that parties are unable to remain married sometimes, but Tennessee wants you to have an education as to how to co-parent your children, post divorce. Having taken the required class myself, I concur.

 

The manner in which the divorce complaint (the paper that initiates a divorce action in court) is prepared is dictated by statute, which must be strictly adhered to[xv].  The law requires certain demographic information pertaining to the parties (name, address, place of birth, date of birth, employer, social security number and race) and certain details pertaining to the marriage itself (where married, when married, when separated). The law also requires information pertaining to minor children (names, dates of birth, whether previous litigation has occurred involving the children, and where they have lived previously), if any. A divorce is normally filed where the Defendant resides or where the parties separated.[xvi]  If you file the divorce in the wrong place, the Judge can send it elsewhere, or dismiss it.

 

With regards to the statutory grounds for divorce[xvii], the law allows divorce for the following reasons:

 

(1) Either party, at the time of the marriage, was and still is naturally impotent and incapable of procreation;

 

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

 

(3) Either party has committed adultery;

 

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

 

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

 

(6) 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;

 

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

 

(8) 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;

 

(9) The woman was pregnant at the time of the marriage, by another person, without the knowledge of the husband;

 

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

 

(11) 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;

 

(12) The husband or wife has offered such indignities to the spouse’s person as to render the spouse’s position intolerable, and thereby forced the spouse to withdraw;

 

(13) The husband or wife has abandoned the spouse or turned the spouse out of doors for no just cause, and has refused or neglected to provide for the spouse while having the ability to so provide;

 

(14) Irreconcilable differences between the parties; and

 

(15) 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, have not cohabitated as man and wife during such period, and there are no minor children of the parties.

 

“Inappropriate Marital Conduct” is by far the most common and most expansive fault ground used.  Irreconcilable Differences (number 14) is an uncontested divorce ground and will be discussed further.  One cannot obtain a divorce on Irreconcilable Differences if they cannot achieve a settlement as to all issues outside of court.  In addition to fault grounds, the law provides for certain statutory defenses against grounds of adultery (condonation)[xviii] and Inappropriate Marital Conduct (justifiable cause)[xix]  The defenses are treated as affirmative defenses for purposes of pleading.  The Petition must be filed under oath.[xx]

When the divorce is filed, a restraining order[xxi] automatically issues against both parties prohibiting either party from doing the following:

 

  • Transferring, assigning, borrowing against, concealing, disposing or dissipating any marital asset without the permission of the other party.
  • Require each party to maintain a list of expenditures made pending the divorce.
  • Prohibition against canceling, modifying, terminating, assigning, or allowing any insurance policy to lapse. One is also not allowed to change beneficiary for any policy either. This applies to homeowners insurance, health insurance, life insurance, disability insurance, renters insurance, automobile insurance, at a minimum.
  • From harassing, threatening, assaulting, or abusing the other party or from making disparaging remarks about the other in the presence of the children.
  • Prohibition against either party from relocating the children more than 100 miles from the marital home without permission.

 

A violation of the restraining order can be punished as contempt of court, which can carry with it a penalty of $50 fine or 10 days in jail for each offense.[xxii]  This restraining order is required by the divorce statute, meaning that it basically comes with the divorce filing.  The purpose is to try and maintain the status quo of the parties, once the divorce is filed.  Because people do mean things to each other, like wipe out bank accounts, cut off utilities and cancel insurance.  The idea is to lock everyone in the position they are at the point the divorce is filed, and let the judicial process sort out the problems. Admittedly, getting some folks to behave during this time, can be a challenge.  However, if circumstances warrant, a more expansive restraining order can be requested pursuant to the applicable Rules of Civil Procedure.  A Judge will then decide before the summons issued as to whether or not a more expansive restraining order is justified.  And yes, I have put people in jail for violating these, and have had people go to jail for violating them. This is a big deal.

 

Form of Divorce

There are essentially two kinds of divorces in Tennessee, contested and uncontested.  A divorce can contain both a contested ground and an uncontested ground and can go from a contested posture to an uncontested posture during the case.  I have not included Collaborative Divorce in this writing.  While I believe the concept is a good one, my opinion is that, if two people are reasonable enough to collaborate in the first place, two experienced divorce attorneys can settle the case just as economically. In theory, when the divorce is filed, the divorce creates an estate under the control of the Divorce Court.  That the Court will attempt to keep the status quo as best as possible until all matters can be heard at trial.  The Court will expect both parties to obey all temporary court orders, restraining orders and all other provisions of the law until the matter can be heard.  Refusal to abide by the rules can result in a party going to jail and can also result in a loss to the party’s standing to contest the divorce proceedings at all.  The latter sanction often results in one side obtaining absolutely everything they ask for, and the sanctioned party receiving absolutely nothing—except for a huge post divorce monetary obligation.  Overall, things can go one of two ways, which are the uncontested way or the contested way/the easy way or the hard way.

 

In a contested divorce, the divorce complaint is filed and served on the other party. The other party is required to file a response to the complaint.  After the divorce is filed, usually via motion, it is possible to go to court quickly for the purpose of obtaining temporary support, or temporary parenting time, or address any other temporary issue that needs addressing while the case crawls its way to trial. After the initial filing and response, the case moves to the discovery phase, where both parties attempt to gather as much information as possible about the other side’s case.  The rules require both parties to share information, answer questions, and produce documents.  Failure to abide by discovery can have a detrimental effect upon one’s case.  Once discovery is complete, the case will be set for a hearing.  A trial will take place where both sides will put on proof in an effort to convince the Judge to divide the property and allocate custody in their favor.  Many divorces start off on a contested basis, and then settle before trial—sometimes even on the day of trial.  A contested divorce puts all of one’s eggs in the same basket and the Court will then allocate the eggs however the Court wishes to.  A party has little control over the outcome. A party unhappy with the results at trial can pursue an appeal and the appellate court will review what the trial court did, based upon the transcript of the trial, and the exhibits admitted into evidence, to see whether or not the court abused its discretion.  Both parties to the divorce must attempt mediation before obtaining a trial date.  If children are involved, each party must additionally take a parenting seminar from an approved provider—a list of which can be obtained from the court clerk.

 

In an uncontested divorce (which is almost exclusively done under Irreconcilable Differences), the parties file a divorce complaint as per the requirements of the statute. A response to a divorce complaint alleging only Irreconcilable Differences does not usually require a response.  Instead, the parties will enter into a Marital Dissolution Agreement (MDA) that, when signed by the Defendant, and filed with the Court, will constitute a general appearance before the Court sufficient to give the Court jurisdiction to grant the divorce.[xxiii]  The MDA is, in the purest sense, a contract between the two parties that allocates their property and their debts and makes provision for the support of a spouse where agreed to.  Because the MDA can be enforced post-divorce via a contract/breach of contract action, and can also be enforced as a court order (contempt), careful consideration must be made to how the document is drafted.  Indeed, for complicated divorces, a great deal of work can go into discovery and negotiation in preparation of the final product.  However, the bottom line is, no agreement=no divorce; and in that case, all that is left is the contested route.  For uncontested divorces with children, the parties must also be able to agree to a parenting arrangement that makes adequate and sufficient provision for the parenting, custody, care, support and supervision for the minor children.  The requirements of the Parenting Plan are specifically provided for by statute.[xxiv]  In most instances, a fill-in-the-blank Parenting Plan form is available through the Tennessee Administrative Office of the Courts, and also some local Clerk’s of Court.  However, with some exception (such as to the demographic information), the divorce compliant itself must be created from scratch by the person filing the divorce, and done in a manner that conforms to statute, and the Rules of Civil Procedure.  The waiting period for an uncontested divorce, meaning the minimum time the parties must wait before the divorce will be granted by the Court, is sixty (60) days for a divorce without children, and ninety (90) days for a divorce with children.[xxv]  The Court has the authority to reject the agreement of the parties if the Court does not believe the agreement is sufficient or equitable and, if so, the parties are back where the started unless they can amend their agreement to the Court’s satisfaction.[xxvi]   While most folks seem to think that the law prefers things to be settled by a trial, the law actually requires the parties to at least attempt to settle their differences outside of court, via Mediation, as required by state law.[xxvii]  Most cases do settle and frankly, a person has more of an ability to control the outcome when the case is settled.  A Judge does not know you and does not know your children.  A court’s ruling is basically a mechanical result derived upon the proof as the Court understands it, set against the law provided.  It is not unusual for both parties to be unhappy with a court’s ruling.  Mom and Dad, together, will always make the best decisions about how to raise their kids, provided that they are able to do that, together, in spite of things.

 

The Reality

How many times have you heard the following:

 

“I’ll see you In court!”

“I’ll take you to the cleaners!”

“I’ll take everything and leave you nothing!”

“I will just leave and let you lose it all!”

“You can’t afford to fight me, you don’t have any money!”

“You will never see your kids again!”

“I’ll just move and you won’t be able to do anything about it!”

“You’ll never see a dime out of me, I’ll go to jail first!”

“You’ll have to go get a job!”

“It’s all in my name so you won’t get anything!”

“You are nothing and no one will ever believe a word you say!”

“I will just tell the judge I am broke, you will never find my money!”

“I inherited it and you can’t take it!”

“I will just have you thrown out of the house!”

“Just wait until I tell them about your…[insert bad thing here]!”

“Your children will hate you!”

 

 

As an attorney, my goal in an initial divorce consultation is to ascertain what there is to fight over, before moving towards fault grounds.  If neither party has property, and has acquired no property, and has no children, then it does not make much sense to file a contested divorce proceeding—the costs does not outweigh the benefits.  There are exceptions, but this is true generally speaking.  If property exists, but no children, then maybe fault is important and maybe not—a cost benefit analysis must be done to ascertain what the benefits are to funding elaborate fault ground litigation.  Where the need for spousal support arises, fault grounds become more important.  Where the fault grounds impact parenting, fault grounds become more important.  Sometimes, two people just cannot agree.  Other times, the conditions of the separation leave zero room for compromise and settlement.  In those cases, all one can do is file the divorce contested, leave the door open for negotiation down the road, and pursue the opposing party with as much vigor as one can muster.  Usually, if both sides will treat the divorce as the dissolution of a business relationship, keep the emotion out of it, and be fair to each other in discussions, particularly as it relates to what the law already provides, than the divorce will settle under terms at least as favorable as if the case had gone to trial—and often better.  I have heard more than one Judge tell litigants that they are the ones best suited to decide how their property, and parenting time, should be allocated.  I have also heard that some 90% of divorce cases should have settled outside of court.  The small exception arise where the law does not quite cover the factual circumstances as neatly as one would like, and the issues are novel enough to require a Judge to decide them. Otherwise, given two reasonable people, most every case should resolve itself at some point.  The law is what it is, the facts are what they are, and the law only change when the state legislature changes them.  While case law changes from time to time, it is really more of a refinement of the factors that the legislature has already mandated.  Once cannot go back and relive their marriage in order to strengthen their position.  The spouse who was primarily responsible for child rearing, will have a stronger standing as candidate for primary residential parent.  Historically, the woman stayed home and the man worked. As can be seen from the factors, the spouse who stays home and cares for the children will not be penalized for it.  The spouse who was the primary wage earner can expect to pay more and receive less—and for years that was the man.  Historically, these factors favored the wife more than the husband, and the wife fared better.  With the changing of roles, and the equalization of roles, and wage equalization, the typical divorce result is changing.  For parties who are equally situated in the relationship, more parity in result can be expected.  There are some strategies that can be employed in situations where parity is unequal, to attain more standing, and these options should be explored.  However, it usually makes little sense to spend the tens of thousands of dollars takes to battle every issue in court.  In those cases, it makes sense to explore settling the case on amicable terms—or at least some of the issues in the case.

 

Unfortunately, some people are unable to behave properly or rationally.  For some ,it is more about winning the battle, or teaching the other side a lesson.  Sometimes a marriage is punctuated by incidents of violence.  Sometimes one spouse is kept from the particulars of the marital finances, and does not know what property exists to even divide. Physical and emotional abuse are things that exist.  Perhaps folks just have an honest disagreement, that requires a neutral body to decide. In those cases, there is always the option of a trial, and some cases have to be tried.  Other cases require a few pre-trial battles over preliminary matters before the parties are able to find common ground.   Still other cases require intensive discovery in order to find property and money that might be secreted away in various places before settlement is possible.  Much time and effort is expended in discovery and trial preparation. While the typical divorce trial is only a day or two long, some divorce trials can last a week long, or more. I have heard of one lasting a month.  The contested proceedings are designed to address these issues.  The question remains whether or the cost justifies going that route.

 

Understanding which of the two avenues to pursue is a difficult one.  It takes some finesse to not poison the well before drinking from it.  The individual divorce attorney has involved himself or herself with hundreds or even thousands of divorce cases.  The attorney knows what works, what does not work, what the law is, what the judge typically will do given a certain set of factual circumstances, what the judge will do to punish a person for acting contrary to the order, when to fight, when to negotiate, what works and what does not work.  It is my hope that, armed with this information, you will be better able to assist your lawyer with the divorce that best suits your circumstances.  I will suggest that in domestic practice, discretion is the better part of valor.  However, if discretion calls for the sledge hammer, sometimes, you just have to use that also.

 

 

[i]  Bargman v. Gargmann, 2011 WL 1026095 *9(Tenn.Ct.App. 2011).

 

[ii] See Bargman v. Gargmann, 2011 WL 1026095 *9(Tenn.Ct.App. 2011).

 

[iii] See Alford v. Alford, 120 S.W.3d 810, 812 (Tenn. 2003).

 

[iv] See Alford v. Alford, 120 S.W.3d 810, 814 (Tenn. 2003).

[v] TCA §36-5-121(i).

[vi]  See TCA §36-6-401.

[vii] Shofner v. Shofner, 181 S.W.3d 703, 715 (Tenn.Ct.App.2004); Adelsperger v. Adelsperger, 970 S.W.2d 482, 484 (Tenn.Ct.App.1997).

 

[viii] Shofner v. Shofner, 181 S.W.3d at 715–16; Gaskill v. Gaskill, 936 S.W.2d at 630.

[ix] Shofner v. Shofner, 181 S.W.3d at 716; Sherman v. Sherman, No. 01A01–9304–CH–00188, 1994 WL 649148, at *5 (Tenn.Ct.App. Nov.18, 1994).

[x] Shofner v. Shofner, 181 S.W.3d at 716; Gaskill v. Gaskill, 936 S.W.2d at 630; Boyer v. Heimermann, 238 S.W.3d 249, 255 (Tenn.Ct.App. 2007).

 

[xi] Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996); Taylor v. Taylor, 849 S.W.2d 319, 331-32 (Tenn. 1993).

[xii] KBJ v. TJ, 2011 WL 3859916, *6(Tenn.Ct.App. 2011) (perm.app.denied)

[xiii] Earls v. Earls, 42 S.W.3d 877, 885 (Tenn.Ct.App. 2000).

[xiv] See TCA §36-6-408.

[xv] See TCA §36-4-106.

[xvi] See TCA §36-4-105

[xvii] See TCA §36-4-101.

[xviii] See TCA §36-4-112

[xix] See TCA §36-4-120

[xx] See TCA §36-4-107.

[xxi]  See TCA §36-4-106(d).

[xxii] See TCA §29-9-101, 102 and 103.

[xxiii] See TCA §36-4-103 (a)

[xxiv] See TCA §36-6-404; 406; 407.

[xxv] See TCA §36-4-103(c).

[xxvi]  See TCA §36-4-103(b).

[xxvii]  See TCA §36-4-131.