Kids Are Expensive $!$

It is commonly said that one of the most expensive choices that can be made in life is having children. According to CBS News, the cost of raising a child from birth to age seventeen is approximately $310,000![i] In Tennessee the payment of child support is mandatory in cases where the child is born out of wedlock, where the parents are divorced, or where there is a domestic violence order of protection. The Tennessee child support guidelines may be found in Chapter 1240-02-04 of the Rules of the Tennessee Department of Human Services Child Support Services Division. The Social Security Act located at 42 U.S.C. §§ 651-669 requires states to establish guidelines for setting and modifying child support. Tennessee Code Annotated §§ 36-5-101(e), 71-1-105(a)(15), and 71-1-132 implement these requirements and direct the Tennessee Department of Human Services to establish guidelines to enforce those provisions of federal law.

In general, a child support order is based on the alternate residential parent’s earnings, income, and other evidence of ability to pay. The Child Support Guidelines define important terms in 1240-02-04.02 including Adjusted Gross Income, Adjusted Support Obligation, Alternate Residential Parent, Days, Pro Rata, and uninsured medical expenses.

The theoretical underpinning of Child Support in Tennessee is the Income Shares Model. The Child Support Guidelines describe this as: “This model presumes that both parents contribute to the financial support of the child in pro rata proportion to the actual income available to each parent.”[ii] The Tennessee Child Support Guidelines claim that over forty other states also use the Income Shares Model and that it is generally based on economic studies of child-rearing costs.

The most important factors that determine what child support is set at are:

• Income of the parties – The lower the income of the parents, the lower child support is set at. The higher the disparity of income between the parent paying child support and the other parent, the higher the child support will be. There is a statutory maximum.
• Parenting time that each parent exercises – Child support is lowest in a joint custody/split custody situation where each parent exercises the same amount of parenting time. Child Support is highest in the event one parent exercises all the parenting time (365 days) and the other parent exercises 0 days per year.
• Number of Children – Child support is higher when more children are involved.

Below are answers to Frequently Asked Questions regarding Child Support that I have fielded in my significant experience as a family lawyer in Tennessee:

Is there a statutory maximum for Child Support in Tennessee?  

Yes these are:

• $2,100 per month for one child
• $3,200 per month for two children
• $4,100 per month for three children
• $4,600 per month for four children
• $5,000 per month for five or more children

Who has to pay for uncovered medical expenses for the children?

This is established in the Parenting Plan. Most commonly the parents pay Pro Rata in accordance with their incomes or 50/50.

What if one of the parents has other children in his/her home?

If that parent has a legal obligation to support the child, such as the child was born from him/her or the parent has legally adopted that child, then that child should be included in the credit for other in-home children section of the child support worksheet and the child support should be adjusted to account for that child/children.

What about work related-child care expenses; does this count?

Yes. Work related childcare expenses found by the tribunal to be reasonable are includable in the child support worksheet and do adjust the child support amount calculated by the worksheet. Unfortunately, the guidelines do not further define what is reasonable, so in my experience the issue seems to be entirely left to the discretion of the trial court Judge.

The other parent doesn’t have a job; can he/she still be ordered to pay child support?

Yes. Tennessee law allows the Court to determine whether income should be imputed to a parent because that parent is willfully unemployed or willfully underemployed. An example of being willfully underemployed would be a licensed doctor working a minimum wage job. In such a situation the doctor could get a job as a medical professional making significantly more money. In such a case, the Court may impute income requisite with the doctor’s past earnings or evidence showing what the market rate is.

Is there an average wage that may be imputed for men and women in Tennessee for child support purposes?

Yes. That amount is $37,589 annually for male parents and $29,300 annually for female parents.

Can I adjust my child support?

Maybe. Tennessee law requires there to be a 15% variance before a child support order may be amended. This means that if the child support is currently set at $500 per month the support would need to be adjusted by at least $75 at or above $575 per month or at or less than $425 per month.

What can I do if the other parent is not paying their child support?

You may start by contacting your local child support office to see if they can help. You may also consult with an attorney. In general, child support is punishable by contempt in Tennessee. Thus, the non-paying parent may be subject to fines, imprisonment, and paying the attorney’s fees of the other parent depending on the circumstances and what the Court decides to do to address the situation.

If you have additional questions about Child Support in Tennessee that applies to your specific situation, don’t hesitate to reach out to our team of family law attorneys at Cole Law Group at 615-490-6020. Our team has successfully litigated hundreds of family law cases and is prepared to assist you in navigating, litigating, and resolving your family law dispute today.

[i] https://www.cbsnews.com/news/raising-a-child-costs-310000

[ii] https://publications.tnsosfiles.com/rules/1240/1240-02/1240-02-04.20211001.pdf See 1240-02-04.03

Born right on the cusp of Millennial and Gen Z, I was raised with the impression that fifty percent (50%) of marriages end in divorce. Given that less than inspiring statistic, there is no doubt as to why the younger generations are postponing marriage or dropping the seemingly archaic notion all together. But at what cost? Outside of the tax implications, there are legal dilemmas that arise when you have been living with a significant other and have to divide assets without the protections of a divorce.

How does a divorce protect me?

Although many of us were raised with the idea that divorces are bad, they do allow certain protections for couples that need to separate. In Tennessee, ‘marital property’ is subject to equitable distribution at the time of divorce. In general, all property obtained during a marriage and all income from any increase in value of property obtained prior to the marriage constitutes marital property.[1] However, if you are not married and have no other contract dictating who gets what in the event of a breakup, despite investing in a home for years, you may walk away with nothing.

Does Tennessee have common law marriage?

Short answer: not really.

What is a common law marriage? A common law marriage is a relationship between two people who present themselves as married for a certain period of years. If a court makes a finding that certain state specific factors are met, those people may be considered common law married, despite never having a marriage license.

Tennessee does not recognize common law marriages formed within its own state, but it will recognize common law marriages formed in another state. Currently only Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, Utah and Washington D.C. will recognize common law marriages.

How can I protect my property without getting married?

Consider drafting, or having a lawyer draft, a cohabitation property agreement. Consider joint land ownership agreements. In essence, if you think you and your partner have a mutual understanding, then write it down. If your partner is not willing to sign an agreement that states what would happen to your shared property if things go south and/or your partner only wants their name on the lease or deed, this could and should be seen as a red flag. They are protecting their interests and are willing to leave you unprotected.

An interesting case to help illustrate this issue is the Tennessee Court of Appeals case Smith v. Riley, where two lovers cohabitated despite not being married.[2] Upon moving in together, the couple opened a joint checking account. After several years, the couple went to a lawyer and drafted an agreement in which Riley granted Smith a one-half undivided interest in three boats, two cars, a tractor, and a motor home. They also drafted a second agreement where Riley also gave Smith a one-half undivided interest in the lease and option to purchase with a right of survivorship in Riley’s remaining one-half interest.

What did Smith give in return? On paper: one dollar ($1.00). In reality, she was making payments on the house, including on the principal and the interest, along with also paying taxes and insurance payments on the property.

When the couple broke up, Riley attempted to give Smith nothing, leaving Smith with no choice but to take Riley to court to divide the property. The Court ultimately awarded Smith the three boats, other personal property, and $33,500.00 for her contributions to the home.

If Smith had not had the agreements in place, as her name was not on the title on any of the property or the lease, the Court’s hands would have been tied, and they would be unable to divide the property. Riley would have been able to leave Smith out in the cold with nothing.

If you are considering living with your partner and combining assets prior to marriage, you should seek the advice of a knowledgeable Nashville divorce attorney. The professionals at Cole Law Group have the knowledge and experience to assist you with any questions you may have about protecting your interests. Please contact us at (615) 490-6020 to request a consultation.

If you would like to learn more about joint land ownership in Tennessee read this article: Joint Land Ownership in Tennessee — Cole Law Group Blog — March 28, 2022 (colelawgrouppc.com)

[1] T.C.A. § 36-4-121

[2] Smith v. Riley, No. E2001-00828-COA-R3-CV, 2002 Tenn. App. LEXIS 65 (Ct. App. Jan. 30, 2002)

On June 15, 2022, the United States Supreme Court issued an opinion interpreting and discussing the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).^[i] The case, Golan v. Saada, is one of the rare instances of the United States Supreme Court interpreting the Hague Convention, and the Court’s unanimous decision provides additional insight into how the Hague Convention may be applied in future international custody disputes arising in the United States.

A Brief Overview of the Hague Convention on the Civil Aspects of International Child Abduction

Numerous countries around the world began adopting the Hague Convention in order to address the problem of international child abductions during domestic disputes.^[ii] Currently, there are 101 countries, including the United States, that are signatories to the Hague Convention.^[iii]

As between countries that are signatories to the Hague Convention (sometimes referred to as “Contracting States”), the Hague Convention generally mandates the “prompt return” of a child to the child’s country of habitual residence in the event the child has been wrongfully removed to or retained in another country.^[iv] Under the Hague Convention, a removal or retention is “wrongful” when it breaches existing custody rights under the law of the State in which the child was habitually resident immediately before the removal or retention, if those rights “were actually exercised” or “would have been so exercised but for the removal or retention.”^[v]

In the United States, Congress implemented the Hague Convention in 1988 through its passage of the International Child Abduction Remedies Act (“ICARA”), a federal law that is binding on all states in the United States.^[vi] Under ICARA, state courts and federal district courts throughout the United States have concurrent original jurisdiction to hear cases brought under the Hague Convention for the return of a child alleged to have been wrongfully removed or retained from their country of habitual residence.^[vii]

Once a court of competent jurisdiction finds the Hague Convention to be applicable in a case due the party petitioning for the child’s return establishing by a preponderance of the evidence that the child was wrongfully removed or retained from the country of habitual residence, the court generally must order that the child be promptly returned to the country of habitual residence unless the other parent successfully establishes a defense to return.^[viii]

Although there are generally five different defenses to return that are available under the Hague Convention and ICARA, the case of Golan v. Saada focused specifically on one of the five defenses – namely, the defense that return would expose the child to a “grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.” Under ICARA and the Hague Convention, this particular defense must be proven by clear and convincing evidence.^[ix]

You can read a more detailed discussion of the defenses to return under the Hague Convention and ICARA in International Custody and the Hague Convention.^[x]

The Facts of Golan v. Saada

The case of Golan v. Saada centers around Ms. Narkis Golan (a United States citizen), Mr. Isacco Saada (an Italian citizen), and their son, B.A.S. The parties married in Milan, Italy in August 2015. B.A.S. was born in the summer of 2016 in Milan, Italy, and the family lived there for the first two years of B.A.S.’ life. The trial court found that the parties’ “relationship was characterized by violence from the beginning,” including Saada physically abusing Golan in front of B.A.S.^[xi]

In July 2018, Golan travelled to the United States with B.A.S. to attend her brother’s wedding. Instead of returning to Italy after the wedding, Golan moved into a domestic violence shelter with B.A.S. Saada filed a criminal complaint for kidnapping in Italy and initiated a civil custody proceeding in relation to B.A.S. in September 2018. Saada also filed a petition under the Hague Convention and ICARA in the U.S. District Court for the Eastern District of New York (the “District Court”), seeking the return of B.A.S. to Italy.

Following a 9-day bench trial, the District Court found that Italy was the country of B.A.S.’ habitual residence, but that returning B.A.S. to Italy “would expose him to a grave risk of harm” due to various acts of domestic violence and abuse Saada inflicted upon Golan during the time the parties lived in Italy together with B.A.S. Following the precedent set forth by the United States Court of Appeals for the Second Circuit, the District Court “nonetheless ordered B.A.S.’ return to Italy” after it had “examine[d] the full range of options that might make possible the safe return of a child to the home country,” before it could “deny repatriation on the ground that a grave risk of harm exists.”^[xii]

After the District Court’s imposition of certain “ameliorative measures” as a condition for B.A.S.’ return to Italy, and an appeal to the United States Court of Appeals for the Second Circuit, the District Court ultimately concluded that sufficient “ameliorative measures” existed to order B.A.S.’ return to Italy under ICARA and the Hague Convention. These “ameliorative measures” included the issuance of a protective order barring Saada from approaching Golan for one year by the Italian court overseeing the underlying custody dispute, as well the Italian court ordering that an Italian social services agency was to oversee Saada’s parenting classes and therapy and that the visits between Saada and B.A.S. be supervised. After the District Court’s decision, the Second Circuit affirmed the District Court’s judgment.

Following all of these developments, Golan petitioned the United States Supreme Court for review, and the Supreme Court granted certiorari “to decide whether the Second Circuit properly required the District Court, after making a grave-risk finding, to examine a full range of possible ameliorative measures before reaching a decision as to whether to deny return, and to resolve a division in the lower courts regarding whether ameliorative measures must be considered after a grave-risk finding.”^[xiii]

The Holding of Golan v. Saada

In a unanimous decision, the Supreme Court vacated the judgment of the Second Circuit and remanded the case to the District Court to make its decision using the correct legal standard, with the understanding that it would “move as expeditiously as possible to reach a final decision without further unnecessary delay.”^[xiv] The Supreme Court first noted that, under the Hague Convention, when “‘a child has been wrongfully removed or retained’ from his country of habitual residence, Article 12 of the Hague Convention generally requires the deciding authority to ‘order the return of the child.’”^[xv]

The Supreme Court also noted, however, that under Article 13(b) of the Hague Convention, a court “‘is not bound to order the return of the child’ if the court finds that the party opposing return has established that return would expose the child to a ‘grave risk’ of physical or psychological harm.”^[xvi] The Supreme Court found that this portion of the Hague Convention essentially leaves a district court with discretion to grant or deny return after a grave-risk finding, and that nothing in the Hague Convention’s text either forbids or requires consideration of “ameliorative measures” in exercising that discretion.

Importantly, the Supreme Court held that, under the Hague Convention and ICARA, a district court’s discretion to determine whether to return a child where doing so would pose a grave risk to the child includes the discretion whether to consider ameliorative measures that could ensure the child’s safe return.^[xvii] The Supreme Court further concluded that the Second Circuit’s requirement of “imposing an atextual, categorical requirement that courts consider all possible ameliorative measures in exercising this discretion, regardless of whether such consideration is consistent with the Convention’s objectives,” impermissibly “‘rewrite[s]’” the Hague convention, and was therefore unlawful.^[xviii]

Therefore, under the Supreme Court’s holding in the case of Golan v. Saada, a district court does not have an obligation under the Hague Convention to consider ameliorative measures that have not been raised by the parties, but it should nevertheless address ameliorative measures raised by the parties or clearly suggested by the circumstances of the case.^[xix] Additionally, a district court’s consideration of ameliorative measures “must be guided by the legal principles and other requirements set forth in the [Hague] Convention and ICARA.”^[xx]

The Supreme Court also found that the Hague Convention’s objectives and requirements constrains a district court’s discretion to consider ameliorative measures in at least three ways: (1) any consideration of ameliorative measures must prioritize the child’s physical and psychological safety; (2) consideration of ameliorative measures must abide by the Hague Convention’s requirement that “courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute;” and (3) “any consideration of ameliorative measures must accord with the [Hague] Convention’s requirement that courts act expeditiously in proceedings for the return of children.”^[xxi]

In sum, the Supreme Court’s unanimous decision in Golan v. Saada is significant because it gives federal district courts an increased amount of discretion over whether children must be returned to their country of habitual residence after a grave-risk finding. In addition, the Supreme Court’s opinion in this case further explains the application of the Hague Convention and ICARA in cases where one party is utilizing the ”grave risk” defense in an effort to avoid the return of a child to the country of habitual residence. In the coming months and years, the full legal impact of the case of Golan v. Saada on Hague Convention cases should become clearer.

If you believe the Hague Convention and ICARA may apply to you, you should seek the legal advice of an experienced international custody attorney immediately. Legal issues surrounding the Hague Convention and ICARA are usually very complex and can often be time-sensitive, and promptly seeking legal advice to understand your legal options is paramount.

Contact a Nashville attorney with Cole Law Group today at 615-490-6020 to schedule a consultation and learn about legal rights and protections that may be available to you under the Hague Convention and ICARA in Tennessee.

ABOUT THE AUTHOR: Andy Goldstein

Andy Goldstein is an Associate Attorney at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States District Court for the Middle District of Tennessee, the United States District Court for the Western District of Tennessee, the United States District Court for the Eastern District of Tennessee, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Family Law, Defamation & Privacy, Probate, and Complex Civil Litigation. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an experienced lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

^[i] Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11.

^[ii] Abbott v. Abbott, 560 U.S. 1, 8 (2010).

^[iii] Hague Conference on Private Int’l Law, Convention of 25 Oct. 1980 on the Civil Aspects of Int’l Child Abduction, Status Table, https://www.hcch.net/en/instruments/conventions/status-table/?cid=24.

^[iv] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 2) (citing Art. 1(a), Hague Convention, at 7; Art. 12, Hague Convention, at 9).

^[v] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 2) (citing Art. 3, Hague Convention, at 7).

^[vi] 22 U.S.C. § 9001 et seq.

^[vii] 22 U.S.C. § 9003(a).

^[viii] 22 U.S.C. § 9003(e)(1)-(2).

^[ix] 22 U.S.C. § 9003(e)(2)(A).

^[x] https://www.colelawgrouppc.com/international-custody-and-the-hague-convention.html.

^[xi] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 4).

^[xii] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 6).

^[xiii] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 8).

^[xiv] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 16).

^[xv] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 8) (internal citations omitted).

^[xvi] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 9) (internal citations omitted).

^[xvii] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 10-11).

^[xviii] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 11) (internal citations omitted).

^[xix] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 11).

^[xx] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 11-12).

^[xxi] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 12-13) (internal quotations omitted).

When a couple seeks to end their marriage in Tennessee, the termination of the marriage is generally accomplished through divorce. The divorce process usually commences with one spouse filing for divorce in a Tennessee court of competent jurisdiction. Once the divorce litigation is initiated, it will progress in either an uncontested or contested fashion. In uncontested divorce cases, the divorce is finalized upon the court approving and incorporating a Marital Dissolution Agreement (and a Permanent Parenting Plan if there are minor children born of the marriage) into a final judgment of divorce. In contested divorce cases, the parties are unable to agree on a Marital Dissolution Agreement (and Permanent Parenting Plan if applicable), and the divorce is finalized by a trial judge upon the entry of a final judgment of divorce after a trial.

There is, however, a rare alternative to divorce: annulment. Annulment is only available if grounds for annulment existed at the time a couple married. In other words, there must have been a defect in the marriage from its inception that renders it subject to annulment, and the spouse seeking the annulment has the burden to prove that the defect existed at the time of the marriage. Simply put, grounds for annulment in Tennessee do not arise after a couple marries, although they may be grounds for divorce.

In Tennessee, marriages subject to annulment are either void or voidable.

A void marriage is one that can be annulled during the lifetimes of the couple, but may also be challenged after the death of either or both of the spouses. If a marriage is void, it is invalid from the moment of its inception – sometimes, this is referred to as being void ab initio. Even if a marriage is void, it is still generally useful to bring a formal annulment proceeding in a court of competent jurisdiction so the court can make clear the marital status of the parties and adjudicate any issues related to children or property. Marriages that are prohibited by law are void.

A voidable marriage, however, is a marriage that is valid unless and until it is annulled. Importantly, a voidable marriage can only be annulled during the lifetime of the parties. If one of the spouses in a voidable marriage dies, the marriage will no longer be able to be annulled, and it will thereafter be considered a valid marriage even though it may have been voidable before the death of one of the spouses.

Under Tennessee law, there are several grounds for annulment, and these grounds are further divided between void marriages and voidable marriages.

A marriage is void from the beginning under the following circumstances:

1. when either party was already lawfully married (bigamy);
2. when the parties are within prohibited degrees of kinship, closer than first cousins (incest);
3. when, for any other reason, the marriage was prohibited by law, and its continuance is in violation of law.^[i]

A marriage is voidable from the beginning under the following circumstances:

1. when either party was insane;
2. when the complaining party was under duress;
3. when one of the parties was under the age of consent at the time of the marriage;
4. when the consent to marry was obtained by force, fraud, or was given by mistake;
5. when the defendant was impotent;^{[ii] [iii]}

Although many couples may prefer for their marriage to end in annulment rather than divorce, in Tennessee the overwhelming majority of marriages end in divorce rather than annulment. This is partially because, although annulment is possible or even required under certain circumstances, the grounds for annulment are often narrowly construed, and most couples simply do not meet the necessary legal criteria to have their marriage annulled.

If you believe that your marriage is void or voidable and that annulment may apply to your marriage, you should seek the advice of a knowledgeable Nashville divorce attorney as quickly as possible. Annulment plays an important role in domestic relations law in Tennessee, and even if annulment is found to not apply in your particular situation, it may lead you to analyze other factors that could be relevant to divorce. Contact Cole Law today at 615-490-6020 to schedule a consultation and learn more about whether annulment may be an option for you.

ABOUT THE AUTHOR: Andy Goldstein

Andy Goldstein is an Associate Attorney at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States District Court for the Middle District of Tennessee, the United States District Court for the Western District of Tennessee, the United States District Court for the Eastern District of Tennessee, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Family Law, Defamation & Privacy, Probate, and Complex Civil Litigation. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an experienced lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

^[i] Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995) (quoting 2 Gibson’s Suits in Chancery § 1147 note 10 (5th ed. 1956)) (citations omitted).

^[ii] For the ground of impotence to sustain an annulment under Tennessee law, one spouse must be physically unable to have intercourse, the impotence has to be permanent, and the impotence must have existed before the marriage.

^[iii] Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995) (quoting 2 Gibson’s Suits in Chancery § 1147 note 10 (5th ed. 1956)) (citations omitted).

WHY DEPOSITIONS ARE HELD

Depositions are held for the following purposes:

• To uncover facts and truths relevant to the case known by witnesses or the parties involved
• To prevent the deponent from changing his/her testimony at trial or to trick him/her into giving misleading or false testimony
• To have testimony under oath and on record for a witness who may not be able to testify at trial
• To allow the examining attorney to gain information that will help define his strategy
• To help both sides determine the credibility of a witness
• To afford the deposing attorney and his/her client an opportunity to recognize the weaknesses in their case
• To avoid any “surprise” testimony during the actual trial that could damage an attorney’s case

If you are served with a subpoena to be deposed (a command to appear and give testimony), you must take it very seriously. You will be given adequate notice as to the time and place for the deposition. Do not fail to attend, for harsh penalties can be imposed upon “no shows.”

Arrive early to the deposition location. Avoid interacting with other people prior to entering the examining room, in the examining room, or during breaks. Do not discuss the case or your testimony “off the record” with anyone at any time. Do not bring any notes or documentation into the examining room. Your attorney will bring any documents that have been subpoenaed. Allow yourself anywhere from 1-8 hours for the deposition; complex cases may require multiple days.

THE DEPOSITION PROCESS

A court reporter will begin by asking you, the deponent, to state under oath that your testimony will be truthful and correct. Then the deposing attorney will begin to ask you a wide range of questions, some of which might seem irrelevant. You will be asked questions about your background and any knowledge that you may have regarding the case. You may be asked embarrassing questions that challenge your character and credibility or that pertain to incidents in your past.

Your attorney will not help you answer questions, but he may object to a question that is asked of you. If that occurs, stop talking immediately and await further direction. Your attorney will instruct you to proceed with answering the question or tell you not to answer.

If you are instructed to respond, be sure to ask the court reporter to reread the question so that you remember it correctly.

The following are additional requests that you may make as a deponent:

• If the opposing attorney asks a question and you did not hear all or part of it, request that the question be repeated.
• If you did not understand a question, don’t be timid about requesting that it be rephrased or explained.
• If the other attorney interrupts you while you are in the process of answering a question, politely point out that you have not completed your response and insist on finishing your answer.
• If you are uncomfortable about a question or need clarification, ask if you may consult with your attorney. (Such consultations must be kept to an absolute minimum.)
• Request a break if you are tired, confused, hungry or thirsty, uncomfortable, need a bathroom break, or must talk with your attorney. However, do not abuse such privileges.

When the examining attorney is finished with his questioning, your attorney may ask followup questions in order to clarify or emphasize your testimony.

During your deposition a court reporter or stenographer will be recording the proceedings, and on occasion an attorney may ask to have a portion of previous testimony read to him. The written record will be saved onto a computer diskette and a computer program will automatically create a transcript that can be shared with both attorneys from the text file on the diskette.

Other means of documenting the proceedings are also utilized under specific circumstances.

Video taping of depositions offers the advantages of showing the demeanor of a deponent, providing a visual record of any physical injuries that may pertain to the case, or be a substitute for the physical presence of a witness in court should he or she be unable to attend the trial. Telephonic depositions are allowed in most states and afford attorneys and deponents the opportunity to communicate from various sites. Video conferencing occurs when video cameras and monitors allow opposing parties to see as well as hear the deposition proceedings.

AFTER THE FINAL QUESTION

At the conclusion of your deposition, you will be asked whether or not you would like to read the transcript. If you elect to do so, a copy of the written transcript will be presented to you within a few weeks after the deposition is concluded and you will have a limited amount of time to make corrections. Read the document very carefully. If you do not make corrections within the designated time allotment, you will not be permitted to do so later.

Most cases settle and never make their way to a courtroom. However, if you do go to trial, re-read your deposition several times prior to your court date so that you can recall everything you said under oath. Your deposition is testimony that can be used to make or break your case in a court of law.

Under Tennessee law, the fundamental right to care and to have custody of a child is one of the oldest judicially recognized interests protected under federal and state law. Termination of a parent’s rights is considered to be “a grave and final decision, irrevocably altering the lives of the parent and child involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). It is for this reason that Courts continue to allow an imprisoned parent to be involved in his or her child’s life, despite the crime(s) he or she has committed. However, can allowing such visitation be mentally and emotionally damaging to a child?

A recent study, funded by the National Institute of Justice, indicated that approximately sixty-five (65) percent of children reacted negatively to visiting an incarcerated parent. Among those that reacted negatively, the parental caregivers characterized the children’s reactions as largely emotional, often involving expressions of fear, anger and anxiety, resulting in excessive outbursts, crying and symptomatic depression. Alternatively, only thirty-five (35) percent of children reacted positively to visiting an incarcerated parent. In some cases, the children exhibited heightened spirits and improved good behavior during visits, often with a promise of future visitations as an enticement for this good behavior.

Interestingly, a child’s reaction often depended on the correction facility and the prior parent-child relationship. For example, if a child is forced to endure long drives to the correctional facility, invasive search procedures and/or poor treatment by the correctional employees, the child is more likely to react negatively to visiting an incarcerated parent. Furthermore, if the visiting rooms are less conducive to a family-like atmosphere and limit the interaction with the parent, the child is more likely to act out or have a negative reaction to the visitation.

The parent-child relationship prior to incarceration also significantly effects how the child may react to visiting an imprisoned parent. If the child did not have a strong parental attachment, or perhaps even had a negative attachment to the parent, the child displayed symptoms of having an adverse reaction to visiting the parent due to the previous strained relationship. Alternatively, this was not the case if the child had a strong, healthy relationship with the parent prior to incarceration.

Even though the judicial system has the best of intentions in allowing incarcerated parents to continue having visitation rights, the Courts are also required to examine what is in the best interest of the child. While, granted, it is agreed that termination of parental rights is not an applicable solution for a majority of situations, the Court may determine that the potential long-term emotional, mental, and behavior effects of visiting an incarcerated parent could be a significant factor in determining the number of visiting hours an incarcerated parent is entitled to. Furthermore, it is essential to remember that no two situations are alike, and this is why the circumstances of each case must be evaluated and the Court must consistently continue to examine what is in the best interests of the child in question.

If you are the primary caregiver of a child whose mother or father is incarcerated and are concerned about the effect this environmental upbringing is having on your child, please contact Cole Law Group, so we may evaluate the circumstances of your situation and assist you in determining if a reevaluation of the terms of your permanent parenting plan, or parental visitation schedule, is in the best interests of your child.

In Tennessee there are two types of grounds for divorce-fault, or no-fault. The no-fault grounds for divorce are “irreconcilable differences” (yes, the 1984 film starring Ryan O’Neal and Shelley Long was aptly titled for this situation) and “living in separate residences and not cohabiting as spouses for at least two years” (this ground applies only if the couple has no minor children). The fault grounds for divorce are a little more interesting, and some are very obvious. They include, but are not limited to impotence, bigamy, desertion of over one year, incarceration for a felony, attempting to take the other spouse’s life, pregnancy by another person without husband’s knowledge, habitual drunkenness or drug abuse after the marriage, inappropriate marital conduct, abandonment, and last but not least-adultery.

So, let’s think about this for a moment. Adultery is grounds for a “fault” divorce. When you and your spouse decided to end your marriage, your Complaint for Divorce stated the grounds as “irreconcilable differences.” Then-that aforementioned euphoric feeling of freedom enters. The juices are flowing. That attractive man or woman you have always wanted to talk to happens to be in line with you at the coffee shop. One thing leads to another and…BOOM, you are now seeing each other and dating. Sounds exciting, right? WRONG. You have now opened the door for your spouse (yes, you are still married at this point until the Court enters your Final Decree of Divorce) to amend his/her Complaint for Divorce to include grounds for adultery. Adultery is not defined within the Tennessee Code, but is widely accepted by the judiciary to mean sexual intercourse between a married person and a third party other than one’s spouse. An emotional affair, while not technically adultery, can still be considered inappropriate marital conduct, the catch-all fault ground for divorce in our state. Many people fall under the false-impression that merely dating or keeping company with someone is acceptable because his or her spouse will be hard-pressed to prove that actual sex has taken place; he or she is wrong. In this state it has long been held that it is unnecessary to have direct evidence of illicit intercourse and that adultery can be proven rather by a mere preponderance of circumstantial evidence.

Seems harmless, this dating thing. I mean you and your spouse are clearly done. You and your spouse have amicably been working out the small details and are very close to an agreement for the majority of the issues you must show the Court. You have calm, kind, personable communications regarding the children (if any) or the house, etc…. The judge, however, will look at this decision of yours to jump so quickly back into the world of dating very closely. How? Good question.

In the event your case involves minor children, the judge or any other experts that will determine custody and/or parenting time will not be too happy with the fact you have decided to date during these divorce proceedings. Why? This behavior shows poor decision making, “callousness toward the feelings of the parties’ minor children, and poor role modeling.” [2] This behavior can have a great effect on how the Court will view what truly is in “the best interest of the child.” A parent’s decisions and past conduct can obviously be instrumental in determining who will make the major decisions in the child’s life, and quite possibly who will be the primary residential parent.

This is where you stand up proudly and exclaim, “Don’t worry about it, we don’t have any minor children!” Well sorry but you are not off the hook so fast. The Court can, and will use its discretion in determining the amount of spousal support (a/k/a alimony) based upon infidelity. In certain situations, infidelity can be a factor in determining the amount of alimony the non-offending spouse pays to the spouse who was unfaithful. Additionally, when a parent lives with someone else and shares expenses, the court could theoretically use that fact as a basis to set the child support obligation higher (when the obligor is living with someone) or lower (when the child support recipient is living with someone) as an upward or downward deviation from the presumptive amount.

In conclusion, if you are going through a divorce and have a question whether or not you should begin dating, take heed that there may be serious repercussions in doing so. Although your emotions may be telling you that it is right, the law may prove differently.

The professionals at Cole Law Group have the knowledge and experience to assist you with any questions you may have regarding divorce. Please contact us at (615) 490-6020 to request a free initial evaluation.

WHAT IS PETIMONY?

What separates pets from other inanimate personal property is the amount of care and maintenance that they require, i.e. veterinary bills, cost of food or special diet, grooming, etc. Some courts have therefore gone so far as to award “petimony” to the custodial owner of the pet. Petimony is an alimony-like payment or economic support by one spouse for the continuing care of an animal. It is different from spousal support, which is compensation awarded during the divorce process or for some period of time thereafter in order to help maintain the marital lifestyle of the former spouse. Petimony is also different from child support, because the child has a right to maintenance from his or her parents whereas a pet does not.

CAN I GET FINANCIAL SUPPORT FOR MY PET?

In the case of Dickson v. Dickson, the divorcing parties agreed to share custody of their dog, and the husband was ordered to pay up to $150 a month for the dog’s care and maintenance, although it was later modified due to a material change in circumstances that rendered the original order inequitable. (Ark Garland County Ch Ct, No. 94-1072, 14 October 1994).

Support is reoccurring and variable as the parties’ needs and abilities change, but the division of property is a one-time event. Courts have been reluctant to award petimony in large part due to the unavailability of court resources or an agency to monitor support for the pets. It is easier for courts to make a one-time assessed value of the pet and award the pet to one party, conditioned upon that person being responsible for the pet’s care and upkeep. There is no inherent right to maintenance for pets as there is for children. However, there are options. Couples that are divorcing can arbitrate the pet issue during mediation. Some courts have approved settlement agreements that award not only custody to one party, but also petimony.

Under Tennessee law, pets are still viewed as personal property. As avid pet lovers, we at Cole Law Group P.C. understand that your pets mean much more to you than a piece of property; they are your family. Our attorneys will zealously work on your behalf to obtain custody of your beloved pet and seek maintenance support for your furry friend in arbitration or other out-of-court settlement.

However, are there instances in which social media sites could be of indispensable value to a husband or wife wishing to pursue marital dissolution? The answer is “yes” if you are on the “serving” side of the legal dispute.

The first step in obtaining a divorce from your spouse is to file a complaint for marital dissolution with the Court. Upon filing of this legal document with the Court, the complaint must be served upon the husband or wife, or put simply, a copy of the complaint must be given to the spouse. Yet there are many instances in which a spouse cannot be found. What method of service do you turn to if you are physically unable to locate your spouse? Typically, the solution is divorce by publication. This is a process in which you publish notice of your divorce proceeding in a newspaper of general circulation in the county of your spouse’s last known residence.

But, given the age of technology, it is not very often that individuals read the newspaper. Why pick up the newspaper when you can pick up your phone to learn the news? That being said, as we become more reliant upon technology, our laws and procedures tend to follow suit, and in recent decisions courts have become more lenient in the methods in which a lawsuit can be served upon a spouse- the most recent development being service by Facebook.

A New York Court recently allowed a wife to serve a complaint for divorce upon her husband via Facebook. Of course, serving a complaint via social media is not easy. In this particular matter, there were additional measures that had to be taken when serving the complaint. For example, confirmation was needed to validate that the account in which she intended to serve the complaint officially belonged to her spouse. While this process seems like a relatively simple task, it can be very difficult at times, as many people create profiles under false names and do not post personal pictures. Secondly, the wife had to provide documentation that the husband logged into the site regularly and would see the complaint. These requirements were met by providing documentation of the private messages the wife exchanged with her husband.

It is important to keep in mind that the court will decide if service by Facebook will be the sole method in which a spouse is required to provide a copy of the complaint. In previous situations when service by Facebook was allowed, the courts often required service via email or mail in addition to service by Facebook.

Although service by social media is atypical, novel, and non-traditional, the purpose of any form of service is to provide a copy of the complaint to the spouse and to verify that the spouse is aware of the lawsuit filed against him or her. Service by Facebook does just that. So, while Facebook can be the enemy, it can also a friend. Be wary of what you post to social media sites, but also keep in mind how valuable these sites could be to you. Perhaps service by social media will become the trend for the future.

If you or a loved one are in a situation in which you cannot reasonably locate a spouse (for example, the spouse has moved and left no forwarding address), please contact a divorce attorney at Cole Law Group (615) 490-6020 so we may discuss possible measures that can be taken to help you obtain a divorce.