If you fear for your immediate safety or are in danger due to domestic violence, do not wait—call 911 right away. Law enforcement can intervene to ensure your protection and help you access emergency resources, such as shelter or medical care. While seeking an Order of Protection is an important legal step, your first priority should always be your immediate safety and the immediate safety of your children. The police can also assist you in filing for an Order of Protection once you are safe. If you are ever unsure about your safety, don’t hesitate to call for help before taking any legal action 

Divorce can be a challenging process where emotions are heightened, especially when it involves concerns about safety or abuse. In Tennessee, one tool to ensure the safety of a party during a divorce is petitioning the court for an Order of Protection. For individuals in need of immediate legal relief from domestic abuse, stalking, or threats of harm, an Order of Protection offers crucial protections. 

What is an Order of Protection? 

An Order of Protection is a court-issued document designed to prevent an abuser from continuing harmful behavior. The Order of Protection can grant various protections, such as prohibiting the abuser from contacting or approaching you, giving you exclusive possession of your residence, awarding you temporary sole custody of minor children, ordering counseling or financial support, directing the care of pets, etc.¹  

However, these protections do not go into effect until the abuser has been served with a copy of the ex parte Order of Protection.² Once they have been served, if your abuser violates the order of protection, they can be arrested. 

Who can file for an Order of Protection? 

In Tennessee, any domestic abuse victim, stalking victim, or sexual assault victim who has been subjected to, threatened with, or placed in fear of, domestic abuse, stalking, sexual exploitation of a minor, sexual assault, or a human trafficking offense may file for an order of protection.³ 

It is important to note that anyone who has experienced sexual assault or stalking may file for a Petition for an Order of Protection, regardless of your relationship with the perpetrator.⁴ However, in order to meet the statutory requirements for an Order of Protection for domestic abuse, there must be a relationship between you and the abuser, i.e. current or former spouses, people who live together or have lived together in the past, people who are dating or have dated, people who have had sexual relationships with the other, relatives by blood or adoption or previous marriage, etc.⁵ 

Under Tennessee law, there are four categories as to what can constitute domestic abuse⁶ that would warrant an Order of Protection: 

1. Purposefully physically hurting or attempting to hurt someone physically (accidents do not count)  

2. Making the person fear physical harm or physical restraint, or physically restraining someone 

3. Maliciously damaging someone’s personal property 

4. Intentionally financially abusing⁷ someone, meaning behavior that is coercive, deceptive, or that unreasonably controls or restrains a person’s ability to acquire, use, or maintain economic resources to which the person is entitled 

1. This includes using coercion, fraud, or manipulation to restrict a person’s access to money, assets credit, or financial information; unfairly utilizing a person’s economic resources to gain an advantage; or exerting undue influence over a person’s financial behavior or decisions, including forcing default on joint or other financial obligations, etc. 

How to File for an Order of Protection? 

To request an Order of Protection in Tennessee, a person must file a Petition for an Order of Protection in the county where the abuser lives, the county where the abuse occurred, or the county in which you live if your abuser lives outside of the state of Tennessee.⁸ It is important when filing to give the court as much information as possible regarding what you have experienced.  

Each county has slightly different procedures for filing a Petition. Generally speaking, this can be done at the county’s General Sessions’ Clerk’s Office. If it is after hours, your local police should be able to assist you in filing your petition. You can also retain an attorney and request that they file a Petition for an Order of Protection on your behalf. 
 

Should I wait to request an Order of Protection until after I have filed for a divorce? 

An Order of Protection can have significant implications during a divorce, particularly in cases involving children. If children are involved, the court may take into account any history of domestic violence when determining custody and visitation. Generally speaking, the longer you wait to file an Order of Protection, the more likely a judge will question why you waited. However, there are pros and cons as to when you should decide to file for an Order of Protection, and a skilled family law attorney can help navigate the complex process and protect your rights. 

Should I retain an attorney? 

Whether you are seeking an Order of Protection or defending yourself against one, retaining experienced legal counsel is critical. The stakes can be high in divorce cases, and this is especially true when domestic violence or allegations of abuse are involved.  

Additionally, it is important to note that statutorily, if you are successful in obtaining an Order of Protection, the Court will also order the abuser to pay your court costs, filing fees, litigation taxes, and attorney’s fees.⁹ 

If you’re considering filing for divorce in Tennessee and have concerns about domestic abuse or harassment, do not hesitate to seek legal advice. An Order of Protection may be an essential step in protecting yourself and your family.  Schedule a consultation with a trusted attorney today to discuss your case and explore your options. Taking this crucial step can help ensure that you have the support and guidance necessary to navigate the legal process and protect your interests. Contact Cole Law now at 615-490-6020. 

1 T.C.A. § 36-3-606

2 T.C.A. § 36-3-611

3 T.C.A. § 36-3-602

4 T.C.A. § 36-3-601(11)-(12)

5 T.C.A. § 36-3-601(5)

6 T.C.A. § 36-3-601(1)

7 T.C.A. § 36-3-601(6)

8 T.C.A. § 36-3-602(c)

9 T.C.A. § 36-3-117

In Tennessee, 95.2% of the land is privately owned.^[i] In many cases, private land is concurrently owned by two or more individuals as tenants in common. Although each co-tenant in a tenancy in common holds an undivided interest in the property and retains the right to use and enjoy the property in its entirety, the co-tenants do not necessarily hold equal interests in the total value of the property. For example, one co-tenant may hold a 60% share of the property’s interest while two other co-tenants hold a 20% share; despite this, each tenant has the right to use 100% of the property.

What Is a Recurring Legal Issue That Impacts Tenancies In Common?

Notwithstanding the benefits of holding property as a tenant in common, concurrent ownership of this nature is often fraught with conflict and problems. A recurring issue that impacts tenancies in common occurs when a co-tenant seeks to extinguish their interest in the property. Once a property owner decides that they want to sell their portion of the land it is up for the parties to agree upon the details of this transaction. If the parties are unable to agree, then either party can file a lawsuit seeking a partition of the property.

What Is a Partition of Joint Property?

A partition is the court ordered sale or physical division of property that is owned by more than one person as tenants in common or within a joint tenancy. Pursuant to Tennessee law, every co-tenant retains an absolute right to partition real estate he or she holds in common with others. ^[ii]

What Is an “In Kind” Partition of Property According to Tennessee Law?

Tennessee courts prefer to order an “in kind” partition; this type of partition seeks to divide the property fairly and equitably amongst the tenants. However, partitions in kind are rare and difficult to achieve as they require property to be equitably divided.

Can I Ask a Court to Sell the Property Even If I Don’t Own 100% ?

Yes, it is more common for a partition to occur by sale, a partition by sale is warranted and the entire property will be sold, and the proceeds will be distributed to the tenants in accordance with the interest they hold. The party seeking partition by sale has the burden to prove, by clear and convincing evidence, either (1) that the property has certain characteristics which make it difficult to physically divide in an equitable manner; or (2) that selling the property, as opposed to partitioning it, would be economically advantageous to the parties.^[iii] If the party requesting partition by sale fails to carry its burden, partition in kind must be ordered.^[iv],[v] 

An Overview Of Tennessee Caselaw

An overview of Tennessee caselaw reveals that requesting parties are often successful in meeting the burden of proof to warrant a partition by sale. As the following cases illustrate, there are a variety of conditions that lead the court to order a partition by sale despite the demands of one of more tenants to partition the property in kind.

In Nicely v. Nicely, two tracts of land totaling 68 acres were ordered to be partitioned by sale.^[vi] The court determined partition in kind would depreciate the value of the property and was therefore unwarranted. The court highlighted that the “advantage” language within the statutes refers solely to financial advantage, and if selling the property as a single unit result in a financial gain for all parties then partition by sale must be granted. ^[vii]

In McKenzie Banking Co. v. Couch, the property at issue was a single medical office building that was originally a single unit but had since been divided into two units.^[viii] The court held that partition by sale was warranted because the property could not reasonably be partitioned in kind and would be devalued if it were. In making this ruling the court highlighted the following facts: (1) since the building had been assessed as a single unit, property taxes and insurance could not be paid for each half separately; and (2) dividing the property would leave one half without access to a public thoroughfare.^[ix]

In Hale v. Hale, the land at issue consisted of two tracts of rural property in Van Buren County that spawned 74 acres. ^[x] Despite two co-tenant’s pleas to partition the property in kind, the court ruled that partition by sale was warranted because “the property could not be reasonably divided between the parties without substantially lowering its value and creating parcels that are not substantially equal for the use of the parties”. ^[xi] In making this ruling, the court focused on the topography of the land, the minimal road frontage, and the disparate sizes of the parcels when divided by value. ^[xii]

Can Joint Owners Reach an Out of Court Settlement While Partition by Sale Lawsuit Is Pending?

Yes. Just because a party files a lawsuit seeking a partition by sale does not mean they cannot reach an agreement while the lawsuit is pending. Oftentimes, parties are able to resolve a partition case when one party agrees to buy out the other party’s interest in the property. Once the parties can agree upon a reasonable price, a party receives compensation in exchange for signing over their interest in the property to the remaining tenant. As a result, one party maintains ownership of the property and the other party receives compensation.

If you have questions about land ownership or specifically partition rights in Tennessee, we can help.  Just give Cole Law Group a call at 615-490-6020.

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^[i] https://fas.org/sgp/crs/misc/R42346.pdf

^[ii] Tenn. Code Ann. § 29-27-101.

^[iii] Tenn. Code Ann. § 29-27-201.

^[iv] Crawford v. Crawford, 2002 WL 31528504 (TN. Ct. App. 2014)

^[v] § 29-27-104. Children and minors; interests; partial partition

^[vi] Nicely v. Nicely, 293 S.W.2d 30 (Tenn. Ct. App. 1956)

^[vii] Id at 33

^[viii] McKenzie Banking Co. v. Couch, 332 S.W.3d 349, 350 (Tenn. Ct. App. 2010)

^[ix] Id at 351

^[x] Hale v. Hale, 2011 WL 773440, at *2 (Tenn. Ct. App. Mar. 4, 2011)

^[xi] Id

^[xii] Id at *3

With over 1,600 home-based businesses operating in the city of Nashville, Tennessee, could it be true that many of them are illegal?¹ Section 17.16.250 of Title 17 of the Metropolitan Code of Laws that governs residential zoning ordinances contains a provision regarding “home occupations”.² The term home occupations refers to the practice of individuals operating small businesses from their residential homes. The provision prohibits the home occupations, or home businesses, from performing services for customers on their residential property. For many home businesses, customers and customer interaction are the sole source of profit. In “Music City,” a community full of artists, musicians, and other creative professionals, this ordinance presents several problems for those wanting to teach music and art or even to create music and art with other professionals in the industry.  

This exact zoning ordinance presented an issue for a local Nashville music producer, Lij Shaw. Since 2015, Mr. Shaw has been in a battle with the City of Nashville to shut down the prosperous music studio located in his residential home. Mr. Shaw first received a letter from the city demanding his home music studio be closed and no longer open for business. Two years later, Mr. Shaw partnered with Pat Raynor, an individual running a hair salon out of her home and protested the residential zoning ordinance in court. The legal battle between Mr. Shaw and the City of Nashville was recently heard by the Supreme Court of Tennessee. The decision of the Supreme Court of Tennessee will not be released for several months.  

Can Owners Conduct Business From Their Home During Covid-19?  

As the COVID-19 pandemic persisted, the Nashville Metropolitan community was afforded the opportunity to operate small businesses from their residential homes, with a newly added benefit. On July 7, 2020, Nashville Metro Council approved the Home Occupation Modernization Bill (bl2019-48) in order to allow small business owners to continue to profit from their businesses in the safety and security of their own homes. This ordinance additionally allows business owners in Davidson County, for the very first time in the county’s history, to engage with customers in the business owner’s home legally. However, the Bill contains several restrictions as follows: a restriction that no more than five employees may reside within the dwelling at a home occupation location;  a restriction that no more than one part-time or full-time employee not living within the dwelling may work at the home business; that there can be a maximum of six visits by customers per day; and no more than three customer trips per hour are allowed at the site of the home business.  

Why Should Nashville Small Business Owners Care? 

In the current COVID-19 landscape, the opportunity to run a business out of your home and be able to serve customers at that business is highly valuable. Businesses based in a residential home afford individuals with an easily attainable avenue to entrepreneurship. It also presents small business owners with a much more cost-effective way to conduct business, avoiding the expenditure of renting or purchasing a commercial space. Reducing the cost to start up a business can be a great asset to the longevity of the business and help reduce the risks associated with starting a business.  

The Home Occupation Modernization Bill is set to expire in January of 2023. Upon expiration, it will again be illegal for home businesses to serve customers on site in a residential home. However, with the help of Mr. Shaw, Mrs. Raynor, and other like-minded individuals, the residential zoning ordinance prohibiting customers to enter and to be served by home businesses may no longer exist.  

If you are thinking about starting a business, we can help. Just call an Entrepreneurial Business Attorney at Cole Law Group in Brentwood (615-490-6020) and we will be happy to speak with you about your new business venture.  

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1 https://ij.org/report/finding-american-dream-home; see also http://www.tnledger.com/editorial/article.aspx?id=52959. 

2 Metro. Code § 17.16.250(D)(1).

At the outset, some of the most significant changes brought about by the new law concern restrictions on the ability of government and private businesses to require individuals to provide proof of having received a COVID-19 vaccination. Specifically, the new law states that “[a] private business, governmental entity, school, or local education agency shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.”¹ Importantly, the new law contains a broad definition of “private business,” and includes individuals, sole proprietorships, corporations, limited liability companies, partnerships, trusts, associations, and non-profit entities.² In addition, the new law contains a broad definition of “adverse action,” and includes discrimination “against a person by denying the person employment, privileges, credit, insurance, access, products, services, or other benefits.”³ As a result, under the new law, most private businesses and governmental entities in Tennessee are prohibited from requiring any individual from providing proof of vaccination in the event the person objects to receiving a COVID-19 vaccine for any reason, and this prohibition is applicable to employees, customers, or just about any individual who accesses products or services of a private business or covered governmental entity. 

Nevertheless, the new law does contain several important exceptions to the general prohibition of requiring proof of having received a COVID-19 vaccination. The new law does not prevent the implementation of COVID-19 vaccine mandates for Medicare and Medicaid providers, or assisted-care living facilities, federal government contractors or subcontractors, schools, or employers that submit notice in writing to the comptroller of the treasury that compliance with the new law would result in a loss of federal funding.⁴ Moreover, the new law does not prohibit “a place of entertainment” in Tennessee from requiring proof of a negative COVID-19 test in order to gain admission, or to allow a person to voluntarily provide proof of vaccination or proof of COVID-19 antibodies in lieu of presenting a negative COVID-19 test in order to gain admission to a “place of entertainment.”⁵ 

The new law also addresses the implementation of mask mandates throughout much of Tennessee. Under the new law, with certain exceptions, governmental entities are no longer permitted to “require a person to wear a face covering as a condition to access the governmental entity’s premises or facilities, or to receive the benefits of the governmental entity’s products or services, unless severe conditions exist and the requirement is in effect for no more than fourteen (14) days.”⁶ The new law further defines “severe conditions” to mean that: (1) the Governor of Tennessee has declared a state of emergency for COVID-19; and (2) a county has an average rolling fourteen-day COVID-19 infection rate of at least 1,000 new known cases of COVID-19 for every 100,000 residents of the county based on the most recent data published by the department of health.⁷ When “severe conditions” do not exist, many governmental entities are also prohibited from requiring employees from wearing a face covering as a term or condition of employment, or from taking an adverse action against an employee for failing to wear a face covering.⁸ 

In order for a school to implement a mask mandate under the new law, “severe conditions” must exist, the school’s governing body must adopt a policy requiring all persons on school property to wear a face covering, and the school must provide face coverings meeting the U.S. National Institute for Occupational Safety and Health N95 classification of air filtration for persons 12 years of age and older.⁹ Even if these requirements are met, the new law does not permit schools to require a person to wear a face covering if the person provides documentation from the person’s healthcare provider that wearing a face covering is contraindicated for the person, or if the person objects to wearing a face covering because of the person’s sincerely held religious belief.¹⁰ As with the implementation of COVID-19 vaccine mandates under the new law, there are several exceptions to the prohibitions on the implementation of mask mandates set forth in this article, including for Medicare or Medicaid certified providers, entities operating on property owned, managed, or secured by the federal government, and healthcare providers.¹¹ Also, and very importantly, the new law does not prohibit private employers or businesses from requiring face coverings for employees, customers, or any other members of the public receiving services. 

Beyond significantly curtailing the ability of many government entities and private businesses from implementing COVID-19 vaccine and other similar mandates, the new law makes several other noteworthy changes to Tennessee law. The new law permits certain individuals to receive unemployment retroactively if they left employment because of a failure or refusal to receive a COVID-19 vaccine when it was previously required by their employer.¹² Furthermore, except in certain cases of minors subjected to abuse or dependent and neglected children, the law restricts the ability of healthcare providers to administer a COVID-19 vaccine to a minor without first obtaining written consent from the minor patient’s parent or legal guardian.¹³ Moreover, the law limits civil liability for deaths “arising from COVID-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct.”¹⁴ 

Importantly, the new law also contains an enforcement mechanism in the event of violations. Specifically, the new law creates a private right of action for injunctive relief, compensatory damages, and reasonable attorneys’ fees for any aggrieved person against an alleged violator.¹⁵ By its own terms, the new law terminates on July 1, 2023.¹⁶ 

The precise contours or Tennessee’s new COVID-19 law have yet to be fully litigated in the courts, and there are still several areas of uncertainty regarding the new law’s enforceability and constitutionality. Nevertheless, there can be little doubt that Tennessee’s new COVID-19 law has already had a profound impact on Tennessee’s response to the COVID-19 pandemic, and the new law’s effects will likely continue to be felt by private businesses, employers, employees, government entities, and many more until at least July 1, 2023. 

If you think Tennessee’s new COVID-19 law may impact you or a loved one, you should seek the legal advice of a knowledgeable attorney immediately. During these uncertain times, it is extremely important to seek the assistance of a legal professional to learn your legal rights and obligations as Tennessee continues to navigate through the COVID-19 pandemic. Contact a Nashville attorney with Cole Law Group today at 615-490-6020 to schedule a consultation and learn about how Tennessee’s new COVID-19 law may impact 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 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. 

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¹ Tenn. Code Ann. § 14-2-102(a).

² Tenn. Code Ann. § 14-1-101(15). Notably, the new law does not define a “private business” to include schools, Medicare or Medicaid certified providers, certain healthcare providers enrolled in Medicare or Medicaid, or certain assisted-care living facilities.

³ Tenn. Code Ann. § 14-1-101(1)(A). Moreover, the definition of “adverse action” in the new law also means to “discharge, threaten, or otherwise discriminate against an employee in any manner that affects the employee’s employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges.”

⁴ Tenn. Code Ann. § 14-6-102.

⁵ Tenn. Code Ann. § 14-2-102(b).

⁶ Tenn. Code Ann. § 14-2-103(a)(1).

⁷ Tenn. Code Ann. § 14-1-101(20).

⁸ Tenn. Code Ann. § 14-2-103(a)(2).

⁹ Tenn. Code Ann. § 14-2-104.

¹⁰ Tenn. Code Ann. § 14-2-104(c).

¹¹ Tenn. Code Ann. § 14-1-101(8).

¹² Tenn. Code Ann. § 14-3-101.

¹³ Tenn. Code Ann. § 14-4-103(a)-(b).

¹⁴ Tenn. Code Ann. § 14-5-101.

¹⁵ Tenn. Code Ann. § 14-6-103.

¹⁶ Tenn. Code Ann. § 14-6-104.

The main concern of most parents in Tennessee is the welfare of their child.  However, occasionally a single parent or a family will find themselves in the unfortunate and often heart-wrenching situation of dealing with the legal issue of emergency child custody. Emergency custody matters may arise due to any of the following:  the commitment of a serious offense by a minor child, the death of one or both parents, the incarceration of one or both parents, or the severe abuse or neglect of a minor child. In such cases, the Tennessee Department of Children’s Services (“DCS”) is mandated to investigate. The DCS mission is to “provide high quality prevention and support services to children and families that promote safety, permanency, and well-being.”¹

Tennessee custody laws are statutory. Thus, reading the section of Tennessee law that governs Juvenile Courts and Proceedings affords the reader a good idea of what law applies in specific emergency custody situations.²

How Can One Complaint Result in Emergency Custody Litigation?

Emergency custody litigation may commence due to a complaint made by a concerned individual to law enforcement or the Child Abuse Hotline. It can also begin with someone  filing a petition in the Juvenile Court of the county in which the child resides. Petitions for dependency, neglect, or severe abuse will often request the Juvenile Court to transfer temporary legal custody.³ In my experience as a child custody lawyer, petitions are often based on exposure of the child to drug use, mental incompetency, negligence, abuse, or the criminal activity of a parent/custodian.

In some custody litigation cases, the child will remain with the parent(s) or other legal guardian until a hearing on the petition can occur. However, if a child is at immediate risk for mental or physical harm, a judge may decide to place that child in physical state custody. A child could also be taken into detention or placed in shelter care prior to a hearing when there is probable cause that the child will abscond or be removed from the jurisdiction of the court. In either case, there would be no other alternative  than to remove the child from the custody of his or her parent(s), guardian or legal custodian and be placed in shelter care prior to a hearing on the petition.⁴

Who Will Care For My Child in State Custody?

In cases where the parent or other legal guardian is divested of custody until a hearing on the petition occurs, DCS will often work with the family to try to locate and vet potential temporary custodians of the child. DCS must determine that the temporary custodians are fit and suitable to have custody of the child. Temporary custodians must pass a DCS background check and drug screen in order to be approved. DCS often tries to first place a child with a family member or family friend before placing a child with an unrelated foster parent.

What Should I Expect in an Emergency Custody Hearing?

During each court hearing in Juvenile Court, the presiding Judge has authority pursuant to Tennessee law to issue orders regarding custody. This includes primary legal custody and visitation by parents and other relatives either in person, via phone, Facetime or  similar technology. Participants may be given a chance to testify before the Judge as to why the parent/custodian should be granted custody or visitation.

Participants at a hearing should expect the DCS caseworker to give a report to the court as to how the child is doing in his/her temporary custody and the results of parent/custodian actions with DCS. Parental interaction with DCS may include drug testing, educational programs in which the parent/custodian must participate, meetings with the caseworker, and anything else that is communicated to the parent/custodian by DCS. Pursuant to Tennessee law, the central determination of the Judge should always be the best interest of the child. A list of the factors that are considered by the court to be in the best interest of the child is found at Tenn. Code Ann. § 36-6-106.

There Can Be a Happy Ending

Experienced child custody attorneys understand emergency child custody situations in Tennessee. Their knowledge and expertise can help guide clients who are unfamiliar with the process through a very stressful period. No one wants to lose custody of their child or see a friend or family member go through such a struggle. In some cases, parents or custodians who lose custody initially are able to work with DCS and the Juvenile Court to complete specific actions that demonstrate the child is no longer at risk in their custody. When successful, the parent or custodian will regain custody of their child. The goal of the Juvenile Court system is for the parents/legal custodians to have  the resources necessary to provide safe care for the child and to reunite the family.

If you are dealing with an Emergency Child Custody matter in Tennessee, you should have an experienced child custody lawyer by your side. Cole Law Group’s Family Law Attorneys in Brentwood are prepared to help.  Call 615-490-6020 for a consultation as soon as possible.

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^¹ https://www.tn.gov/dcs/about-us/mission.html

^² Tenn. Code Ann. § 37-1-102 is a good place to start.

^³ Pursuant to Tenn. Code Ann. § 37-1-129 to -130.

⁴Tenn. Code Ann. § 37-1-114.

Grayson v. Grayson Tennessee Court of Appeals

A recent Tennessee Court of Appeals case spent significant time analyzing and discussing United States Department of Defense Financial Management Regulations regarding military retirement benefits in divorce. Grayson v. Grayson, No. E2020-01339-COA-R3-CV, 2021 Tenn. App. LEXIS 354 (Ct. App. Sep. 3, 2021).

Grayson v. Grayson Facts

In the original Grayson divorce, the husband was in the military, and not yet retired at the time husband and wife divorced in 2011. Husband later retired in 2018 and wife was unable to receive any of the retirement funds which she believed she was entitled to due to the “deficient award language contained in the 2011 order.” Grayson, *1.  The Defense Finance and Accounting Service (“DFAS”) sent wife a letter letting her know that the 2011 order failed to provide DFAS a method they could use to calculate the retirement pay distributed to wife. After receipt of that letter, Wife went back to the trial court and attempted to solve the problem by having the court issue a new Military Retired Pay Division Order. The Husband appealed.

Appeal Outcome

The Court of Appeals vacated the trial court’s orders and remanded the case to the trial court, further directed the court to incorporate language compliant with DoD regulations with sufficient findings of fact and conclusions of law to enter a formula award or hypothetical retired pay award. On Appeal Husband argued the trial court lacked jurisdiction to modify the July 21, 2011 Order years later. The Court of Appeals dispensed with this argument as Tennessee Rule of Civil Procedure 60.01 allows for the correction of an error of wording in court Orders and is not time limited. The Court of Appeals reasoned that the trial court’s intention was to correct errors in the previous order language in accordance with what is authorized in Rule 60.01. Husband further argued the trial court’s order ambiguous as DFAS could read it to determine that wife is awarded 50% of his retirement pay instead of 50% of his retirement as of the date of divorce as the trial court intended. The Court of Appeals agreed with this argument and remanded the trial court’s order with further instructions for the trial court to make findings of fact, conclusions of law, and follow the correct DoD Regulation guidance.

Discussion of DoD Regulations

The most important part of the Court’s ruling for those interested in military and family law issues in Tennessee is the section that discusses DoD Regulations.¹ (pages 20-27) As the Court of Appeals explains, the relevant DoD Regulations “provide that trial courts may ensure that a former spouse is awarded a portion of the military member’s retirement pay without benefiting from the military member’s post-divorce promotions and acquisition of years of creditable service by either expressing the retired pay award as a formula award or a hypothetical retired pay award.” Grayson, *22.

A formula award computes the former spouse’s property interest in the member’s military retired pay as a multiplication of the percentage of the former spouse’s share provided by the court order multiplied by the length of the parties’ marriage during the member’s creditable service as the numerator and the member’s total creditable service toward retirement as the denominator. An example formula award provided by DFAS shows that where the former spouse was awarded 50% of the member’s military retired pay and the couple was married for 144 months during the member’s military service and the member later retired with 240 months of service, DFAS would multiple 144/240 x .5. 144/240 =.6. .6 x .5 = .3. In this example, the former spouse would be awarded 30% of the member’s retirement benefits.

A hypothetical award calculates the award “as though the member had retired at the time of the court order dividing military retired pay or some other date prior to the member’s actual retirement.”² For a hypothetical award, the trial court must provide (1) the percentage the former spouse is awarded, (2) the hypothetical years of creditable service, (3) the hypothetical retired pay base (high-3), and (4) the hypothetical retirement date. DFAS provides an example way Court’s should format this as: “The former spouse is awarded     percent of the disposable military retired pay the member would have received had the member retired with a retired pay base (high-3) of     and with     years of creditable service on    .”³ DoD provides this example:

The court order awarded the former spouse 50 percent of the disposable retired pay the member would have received had the member retired with 17 years of creditable service, a retired pay base of $2,200.00 per month, and a hypothetical retirement date of June 1, 1999. The member actually retired on June 1, 2002, with 20 years of creditable service, a retired pay base of $2,400.00 per month, and an initial gross retired pay of $1,200.00 per month (2.5% x 20 years = 50%; 50% x $2,400.00 = $1,200.00). First, the designated agent will calculate the member’s hypothetical retired pay multiplier, which in this example is 42.5 percent (2.5% x 17 years = 42.5%). Next, the designated agent will calculate the hypothetical retired pay amount, which in this example is $935.00 per month (42.5% x $2,200.00 = $935.00).⁴

DoD Financial Management Regulation 7000.14-R provides further relevant examples such as an example court order language for a retired member, active duty formula, and reservist formulas in Figure 29-1.

If you need help ensuring that your military retirement benefits are properly distributed to you in a divorce in Tennessee or are being properly paid after a Tennessee divorce, call Cole Law Military Attorney Paul Tennison at 615-490-6020 for a consultation regarding your potential military divorce case.

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¹See Dep’t of Def. Fin. Mgmt. Reg., DoD 7000.14-R, Vol. 7B, Ch. 29 (June 2021).

² Id. 290608.

³ Id. Figure 29-1.

⁴ Id. 290608.

In Tennessee the procedure for dissolution of marriage is pretty straightforward.  A no-fault divorce based on irreconcilable differences with no minor children involved has a minimum statutory waiting period of 60 days (90 days if minor children are involved.)  This uncontested divorce process should be completed within one year and consists of four primary steps:  1) File a petition for divorce with the  court, 2) Prepare a Marital Dissolution Agreement, 3) Agree on a Permanent Parenting Plan if minor children are involved, and 4) Schedule a final hearing in court. The procedure for a contested divorce, on the other hand, can take up to two years and beyond to finalize simply because of the filing of motions and counter motions, discovery (interrogatives, fact finding, and depositions), court ordered mediation, or multiple hearings and a backlog of court cases.

And even though a contested divorce by its very acrimonious nature takes longer to resolve, it is wise to be aware of certain mindsets and external influences that can turn a routine process into a never-ending nightmare.  Below are some bumps in the road that can derail a successful, timely divorce resolution.

REFUSAL TO COMPROMISE

An “I’m going to win at all cost” attitude doesn’t serve anyone well.  Realistically, it is probable that neither party will get everything he or she wants in the divorce.  Pick your battles, consider rational alternatives, and choose areas in which you might be willing to negotiate.  Avoid using the courtroom as an arena where you can “finger point”, out-strategize and demoralize your spouse.  Judges don’t take kindly to spousal attack, accusations, and constant bickering.

IT’S ALL ABOUT THE MONEY

Very few people find their “pot of gold” at the end of a divorce. If you reside in one of the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), both spouses are considered equal owners of all marital property, and a 50-50 split is the general rule. In a common property state such as Tennessee, the court will determine a fair or equitable division of marital property according to certain variables.  Most judges will begin by awarding 50% of the marriage assets to each party and adjust that distribution based upon evidence presented.  If you believe that your spouse is hiding assets, then you and your attorney must act accordingly.  Otherwise, an extended fight over money or ownership interest in a business is expensive and you may not be rewarded accordingly.  Years of fighting the good fight over money can eventually chew up a large percentage of available wealth.

ONE SPOUSE DRAGS FEET

An unwillingness to “let go” can delay divorce proceedings and make the process even more painful.  A less-motivated party may procrastinate in responding to motions, postpone court hearings, and reject even generous settlement offers.  At times it is prudent to step back and allow the unwilling party time to emotionally adjust.  However, eventually, the process just has to be pushed along.  Reality is that a spouse who is determined to divorce will ultimately prevail.

CUSTODY BATTLE

A custody battle is  the single most emotional reason for perpetuating divorce issues and will create havoc with the divorce process.  Hostilities escalate when one parent  or the other attempts to use the children as pawns in order to gain leverage in financial matters, child visitation, or control over mutual parenting practices. If allegations of mental illness, substance abuse or emotional/physical abuse are made in a high-conflict divorce, a forensic psychologist may be appointed by the court to do an evaluation of both parents and the children.  A judge may also utilize the services of a guardian ad litem  (“GAL”) to help determine which parent should have primary residential responsibility.  The GAL’s job is to act as an advocate for the children.  He or she will interview people who come in contact with the children, prepare a report for the judge, and perhaps testify at trial.  An independent psychologist may also be employed to help the children through this traumatic chapter in their lives.  The undertaking of experts who attempt to resolve custody battles is lengthy and expensive and can delay the final divorce decree for a significant period of time.

THIRD-PARTY INTERVENTION

One of the most insidious obstructions to an expedient divorce is the involvement of third parties.  Third parties take on many faces–they may be relatives, lovers, close friends, persons with an axe to grind, someone who is seeking a “cause d’jour”, or an individual who has a vested interest in the outcome of financial disposition, child visitation, or primary residential issues.  (Grandparents are often dragged into the fray with the best of intentions because of a genuine concern for their grandchildren’s welfare.)  Third parties may affect the outcome of a divorce by offering advice, testifying, or providing significant financial support. Many times their involvement blindsides the opposing spouse.  If a divorce drags on interminably, you should always bear in mind that the causative factor could be third party intervention.

MODIFICATIONS AND APPEALS

And just when you thought it was over—here it comes again.  After a trial has taken place and a court order has been signed that covers all the divorce issues, either party may file an a post-divorce modification or an appeal.  

Post-divorce modifications are usually filed in order to change the terms of alimony, child custody, child support, visitation, or parental relocations.  Modification may occur when there is a substantial change in circumstances  from the time that the original order was entered.  A judge (or parenting plan) will often require that the two parties involved attend mediation prior to a modification hearing.   Post-divorce modifications may be concluded expeditiously or drag on for a lengthy period of time.

A Notice of Appeal must be filed within 30 days of the trial judge’s order.  The purpose of such an appeal is to determine whether the judge made a legal error that affected the outcome of the trial.  If the appellate court reverses the original judge’s order, then the matter will likely be sent back to the trial  court for further proceedings.  The appellate process can take a year or longer to complete.

CONCLUSION

So what can you do if you find yourself mired in chaos and divorce limbo?  First, reassess your goals to determine if they are viable.  Second, be flexible and choose your battles carefully.  Third, consider the factors above that may be true impediments to divorce resolution.  In addition, and most importantly, align yourself with a skillful family law attorney who has your best interests at heart, who can offer sound counsel, and who will be your forceful advocate as you navigate through the roadblocks of divorce.  Our Cole Law Group family law attorneys in Nashville have the knowledge and experience to help resolve the most highly contested divorces. Contact us today at (615) 490-6020 to schedule a consultation.

The Physical Disability Review Board was created by federal law with the passage of the Dignified Treatment of Wounded Warriors Act in 2008. The DTWWA made several significant changes to the care of wounded veterans. First, the law required the military branches to use the same disability determination rating scale as that used by the VA. Second, the law expanded the care available to injured service members after their military service. This included changes in treatment in military and civilian facilities for a variety of conditions, including Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD). Third, the new law required comprehensive plans to address TBI and PTSD. Fourth, the law directed the Secretary of the Department of Defense (DoD) to establish physical disability review boards to review disability determinations meeting certain criteria and timeline requirements. The law also addressed the quality of housing provided to patients by requiring improved standards.¹

After the law passed, the DoD issued instruction 6040.44 which “establish[ed] policies, assign[ed] responsibilities, and provide[d] procedures for PDBR operation and management as required by section 1554a of Title 10, United States Code.”² The PDBR’s mandate is to: “reassess the accuracy and fairness of the combined disability ratings assigned former service members” who meet certain criteria.³ Those criteria are summarized here:

1. Service member was separated with an original combined disability rating of 20% or less.
2. Service member separated between September 11, 2001, and December 31, 2009, due to unfitness for continued military service.
3. Service member was not originally found eligible for retirement. This includes Reserve component service members.⁴

The PDBR will review the disability determination to determine if the veteran should have been awarded a higher combined disability rating. The PDBR will look at evidence such as medical records from the veteran’s military record, medical records from civilian life before joining the military, a statement of the veteran, letters from the veteran’s military colleagues or family members discussing the veteran’s injury or illness, and a recent health screening of the veteran.

DoD Instruction 6040.44 contains several definitions which are useful for veterans considering applying to the PDBR.⁵ The section defines: “combined disability ratings; consistency reviews; construed cases; DES; PEB; physical disability; QAP; and VASRD.”

The benefits for a successful PDBR application can be substantial for qualified veterans. This includes:

1. Monthly disability retirement pay, retroactive to the date of the veteran’s discharge. The retroactive payment should be in a calculated lump sum. Then monthly pay will go forward. Please note that by law, veterans may not receive both VA disability pay and military medical retirement pay. There is a $1 for $1 trade amount by which the retirement pay is not actually collected by the veteran, but the VA disability pay is. This is still a good deal for the veteran in that VA disability pay is tax free while military retirement pay is taxable.
2. The veteran and her/his family will be eligible for DoD Tricare healthcare coverage, retroactive included. This also gives healthcare coverage to eligible dependents.
3. The veteran may choose to purchase the survivor benefits plan. This would require the veteran to pay retroactive amount to make coverage current.
4. The veteran would also have all the rights and privileges of a retired veteran, including space available travel, exchanges, commissaries, and whatever is recognized by states and private companies.

Hypothetical case A: John Doe separated from the Army in 2010 with a 20% disability rating. John was not originally eligible for military retirement. Can John apply to the PDBR? No. John may not apply because his discharge date of 2010 is after the limited timeframe of the PDBR. Note, John may be able to secure relief through other avenues such as an application to the VA for disability or a different Army review board.

Hypothetical case B: Jane Smith separated from the Navy in 2008 with a 40% disability rating. Jane was given a military medical retirement, yet she thinks it was not a high enough rating. Can Jane apply to the PDBR? No, Jane cannot apply because she was already given a military retirement. In order to dispute the rating given, Jane would have to apply to a different Navy review board. Jane also might want to apply to the VA for disability if she has not already done so. Also, even if Jane already receives VA disability, she may want to apply for other conditions if her disabilities have become worse.

Hypothetical case C: Steve Sergeant separated from the Marine Corps in 2005 with a 10% disability rating. Steve was not given a medical retirement. Can Steve apply to the PDBR? Yes, if Steve has not previously applied. The DoD interpretation of the DTWWA determined that each eligible veteran may apply to the PDBR only once. After that application, the Veteran may be able to apply to other service review boards or appeal the case to certain courts. The PDBR is required to provide a final determination letter at the end of the PDBR process that explains what recourse a dissatisfied veteran may have.

According to the PDBR fact sheet, there are an estimated 77,000 veterans that fit the PDBR eligibility criteria.⁶

See also: https://health.mil/Military-Health-Topics/Conditions-and-Treatments/Physical-Disability/Disability-Evaluation/Physical-Disability-Board-of-Review

If you think you may be an eligible veteran, I encourage you to contact me at 615-490-6020 or submit a question through our website to determine how you can get the benefits that you deserve.

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¹ https://www.congress.gov/bill/110th-congress/senate-bill/1606

² https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/604044p.pdf

³ Id.

⁴ Id.

⁵ Id.

⁶ https://health.mil/Military-Health-Topics/Conditions-and-Treatments/Physical-Disability/Disability-Evaluation/Physical-Disability-Board-of-Review

“Under this bill, if a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action. All discovery in the legal action will be stayed upon the filing of a petition pursuant to this bill and the stay of discovery will remain in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.”¹

The Tennessee Public Participation Act goes beyond Tennessee’s current anti-SLAPP Law (limited only to complaints made to government entities) and Tennessee’s “Loser pays” statute. Tennessee joins states such as California and Texas in passing comprehensive anti-SLAPP legislation.

Pros and Cons of the Tennessee Public Protection Act

Proponents of the bill state that this is an important measure to protect individual first amendment rights to free speech and to help reduce meritless lawsuits meant to stifle criticism and intimidate parties who may not have the resources to defend themselves in litigation. The new statute will allow a party to file a petition to seek dismissal of the defamation complaint, and the Presiding Judge can “stay” discovery proceedings (which can be costly for all parties) in order to first rule on the Petition to Dismiss under the new Anti-SLAPP law. If the lawsuit is dismissed during this proceeding, the Defendant may recover attorney’s fees. Additionally, proponents of this bill also applaud the increased protections given to journalists regarding the publication and dissemination of news information.

However, individuals opposed to anti-SLAPP laws note that this law will make it more difficult to obtain relief in a Court of law by providing excessive penalties for litigants who are only seeking judicial relief to restore or protect their reputation. Opponents may worry that individuals will now be able to make false and defamatory comments, then use this new law as a shield to avoid accountability and prevent defamed parties from seeking judicial redress.  Additionally, unlike Tennessee’s loser pays statute (which caps attorney’s fees at $10,000) there no longer appears to be a limitation on attorney’s fees. Therefore, if an anti-SLAPP case is filed and dismissed under the Tennessee Public Participation Act, a Plaintiff could be on the hook for paying a large amount of attorney’s fees in excess of $10,000.00. Litigants need to be aware of these consequences prior to filing or defending an anti-SLAPP lawsuit.

How the New Law Will Affect Social Media and Online Reviews

In today’s world, it is extremely easy for a consumer to write a negative online review against a business or individual. It is also easy for individuals to offer criticism in social media forums such as  Facebook and Twitter. The Tennessee Public Protection Act will offer broad protections for such individuals who vent on these platforms. It will also offer additional protections for consumers posting negative Yelp reviews, and other criticisms against businesses and individuals alike. As a result, citizens in Tennessee will now have broader free speech protections under this new anti-SLAPP statute. 

Regardless of your position regarding the law, all citizens need to be aware of this inevitable change prior to exercising their 1^st Amendment rights and/or considering filing or responding to a defamation lawsuit in Tennessee. Also, if you might be a party to a defamation lawsuit, be diligent about retaining an experienced and highly skilled defamation lawyer to represent you.

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¹ HB 0777 Bill Summary http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB0777

² Tenn. Code Ann 20-12-119.

Roadmap of a Defamation Lawsuit

Throughout America, one of the greatest struggles facing millions of immigrants is that of obtaining lawful permanent residence or – as it is commonly called – a “Green Card.” There are dozens of possible paths to obtaining a Green Card. Even many undocumented immigrants have a pathway to legal permanent residence available to them. Part 2 of this series focuses on family-based immigration and some of the ways immigrants can seek a Green Card through family relationships they have with relatives who are U.S. citizens or legal permanent residents. If you missed Part 1 of this series (an overview to obtaining a Green Card), you can find it here.

Currently, family-based immigration results in greater numbers of admissions than the other categories of immigrants. As specified in the Immigration and Nationality Act, eligibility for family-sponsored immigration is determined by an immigrant’s familial relationships to U.S. citizens or legal permanent residents. See 8 U.S.C. §§ 1151, 1153. If an immigrant can be categorized as an “immediate relative” of a U.S. citizen, he or she may be exempt from the waiting times that apply to other categories in family-based immigration. However, immigrants seeking to obtain lawful permanent resident status through their marriage to a U.S. citizen may also be subject to heightened scrutiny and evidentiary requirements. Determining your eligibility for a family-based immigration category, as well as which category is best for you, is a complex process that should not be attempted without the assistance of an immigration attorney.

Generally, the process of obtaining a Green Card in family-based immigration starts with the filing of a visa petition by the immigrant’s relative in the U.S. Visa petitions are generally filed with the United States Citizenship and Immigration Services (“USCIS”), an agency within the Department of Homeland Security. Generally, a USCIS Officer will be responsible for adjudicating the visa petition. Approving a family-based visa petition can be discretionary for a USCIS Officer. Therefore, it is crucial to complete the visa petition in the legally correct manner and with sufficient supporting evidence to prove the bona fide nature of the family relationship. To gather the necessary evidence and complete the visa petition properly, it is important to secure the legal counsel of an immigration lawyer before submitting a visa petition to USCIS or any other government agency.

If USCIS approves the visa petition, the next step depends on the location of the immigrant. Those outside the U.S. generally must go through consular processing at a U.S. Consulate in their native country, while those inside the U.S. may be able to stay inside the U.S. and obtain their Green Card through a process known as adjustment of status. Some qualifying immigrants already inside the U.S. may have to leave the U.S., go to the U.S. Consulate in their native country, and return to the U.S. after consular processing.

Under American Immigration Law, the primary family-based immigration categories are: (1) spouses, children, and parents of certain adult U.S. citizens; (2) unmarried children of certain U.S. citizens; (3) spouses and certain children of legal permanent residents; (4) certain children of legal permanent residents; (5) certain married children of U.S. citizens; and (6) siblings of U.S. citizens. See 8 U.S.C. § 1153(a). Adopted children of U.S. citizens and legal permanent residents may be eligible in some cases. All but one of the above categories are subject to statutory annual limits on the number of visas which may be issued. Depending on the applying immigrant’s category, he or she may have a waiting period before an immigrant visa number becomes available. Other factors, including prior criminal history or previous length of time in the U.S., can impact eligibility.

Nevertheless, determining your categorical eligibility is an intricate and legally complex analysis. In some cases, the denial of a visa petition could result in the immigrant being placed in removal proceedings and facing the possibility of deportation. It is strongly recommended that you consult with an immigration attorney to determine your eligibility and file your visa petition properly. Call Cole Law Group’s Nashville immigration attorneys at 615-490-6020 to schedule a consultation and determine what type of visa petition is best for you to obtain a Green Card and obtain lawful permanent residence.