West Knox Law

6-Month Sentence for PPP Contempt Affirmed

Laura Wyrick — Mon, 22 Apr 2024 14:51:20 +0000

In Hughes v. Hughes, a Tennessee Court of Appeals opinion published April 19, 2024, the divorced parties had a common parenting plan that prohibited communication except by text about the children only. Father violated this provision by sending Mother thousands of text messages over several years that begged, threatened or pleaded with Mother to reconcile, and then became antagonistic, accusatory and insulting toward Mother. In response, Mother repeatedly asked Father to stop, informed Father that their romantic relationship was over, and reiterated that they are only to have contact regarding their kids.

After reviewing the record, the trial court found beyond a reasonable doubt that the Father willfully failed to comply with the PPP on 133 occasions, and sentenced Father to 186 days in jail, to run consecutively.

On appeal, Father argued that the sentence was inappropriate. The Court of Appeals determined that the record supported the finding that Father’s behavior was egregious and disturbing, the text messages were harassing and abusive, and that Father would not stop without serious court intervention. The 186-day jail sentence was affirmed and Mother was awarded her attorney fees.

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Will versus Living Trust, what is the difference?

Laura Wyrick — Fri, 13 Oct 2023 11:18:42 +0000

A Last Will and Testament, or simply a Will, is a document memorializing an individual’s final wishes regarding the distribution of assets upon his or her death. If the individual has minor children, the Will can also be used to appoint a guardian of the minor children upon his or her death. The individual signing the Will is known as the Testator. The Testator appoints a person to administer his or her estate according to the Testator’s wishes, and that person is known as the Executor. The Will does not become legally effective and binding until the time when the Testator dies and the Will is admitted to the probate court. Once the Will is admitted to probate, the probate court will issue what is known as “Letters Testamentary” to the Executor, which allows the Executor to administer the Testator’s estate and distribute the property as the Will provides.

A Living Trust, also called a Revocable Trust, is an estate planning tool that directs how you want your assets managed during your lifetime and distributed upon your death. The individual signing the Living Trust is known as the “Trustor” or “Grantor”. In the Living Trust, the Trustor appoints a “Trustee” to manage his or her property, and typically the Trustor and Trustee are the same person. A Successor Trustee is also named to distribute the Trustor’s property upon the Trustor’s death. Unlike a Will, the Living Trust is effective during the Trustor’s lifetime and, if done properly, can avoid the probate process altogether. A Living, or Revocable Trust, as the name implies, can be altered, amended, or revoked by the Trustor during the Trustor’s lifetime, giving the Trustor full control of his or her assets while living. The Living Trust can also be a vehicle for managing your property, for your benefit, if you become incapacitated; thereby avoiding the necessity of a conservatorship over your person and property. For a Testator with minor children, an ancillary document known as a “Pour-over Will” can be used with the Trust to appoint a guardian of the minor children upon the Testator’s incapacity or death.

The choice of a Will or Living Trust is a personal one that should be made only after careful consideration with an estate planning attorney. The contents of this post do not constitute legal advice.

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How is alimony calculated in Tennessee?

Laura Wyrick — Fri, 16 Dec 2022 19:51:01 +0000

There is no set formula for an award of alimony in Tennessee. Instead, the judge has wide discretion in deciding the nature, amount, and duration of an alimony award to balance the reasonable need of the disadvantaged spouse with the obligor spouse’s actual ability to pay. The length of the marriage is another very important factor in the alimony analysis. Alimony is therefore decided on a case-by-case basis.

A recent interesting case is Chase v. Chase (2022; No. E2021-01300-COA-R3-CV). In Chase, the husband was a practicing plastic surgeon making $1 million per year. The wife was a licensed pharmacist but had been out of the workforce for 20 years and had some physical issues that impacted her ability to return to work. The trial court found that a reasonable estimate of the wife’s earning ability was just $50,000 annually. The court also decided it was reasonable for the wife to need $11,460 per month to maintain her comfortable standard of living. To fill the gap in her budget, the court ordered the husband to pay the wife $7,000 per month forever, plus three years of rehabilitative alimony of $1,600 per month.

The husband argued without success that he should not have to pay because the wife also received $2 million in marital assets in the divorce. The court was unpersuaded because the wife would not receive a significant income stream from the assets. Further, the wife was 52 years old, and she would not be able to access the portion of her assets in retirement funds for some time.

Such permanent or lifetime alimony awards have become less common, but the Chase case reminds us that every divorce is unique and the ultimate alimony award comes down to the discretion of the judge after hearing about one party’s reasonable need versus the other spouse’s actual ability to pay.

The contents of this post do not constitute legal advice or suggest any outcome of your individual case. You should seek the advice of an attorney based on the facts and circumstances of your case before taking any action.

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Highlighting QDRO Pitfalls

Laura Wyrick — Wed, 30 Nov 2022 22:14:56 +0000

Retirement accounts, such as 401(k) savings plans, often need to be divided between divorcing parties. The division can be completed pursuant to a Qualified Domestic Relations Order, or “QDRO,” to avoid income tax and early withdrawal penalties. The QDRO is prepared by an attorney after the divorce and property division is final. The terms of the QDRO must match the terms of the Marital Dissolution Agreement (if the parties settled) or the Court’s final decree (if the parties went to trial). Missing terms in a Marital Dissolution Agreement and delays in implementing the QDRO after the divorce can sometimes turn out to be very costly.

For example, in Heisig (No. E2021-00925-COA-R3-CV), the parties were divorced in January 2018. According to the Marital Dissolution Agreement, Wife was awarded $130,000 from Husband’s 401(k). A draft QDRO was not submitted for court approval until January 2019, an entire year later. The trial court awarded Wife statutory post-judgment interest of $2,839.16. However, the value of the account had increased due to market forces over that one-year period. The gains on Wife’s share of the 401(k) exceeded an additional $55,000 by April 2021. The Court of Appeals refused to award Wife those gains.

The Court of Appeals found that because the Marital Dissolution Agreement did not explicitly assign gains (or losses) to Wife’s share of the account, she was not entitled to the extra $55,000. Rather, Wife had chosen the “comfort and security” of a defined figure from the 401(k). Her award would not be reduced by market losses that may have occurred, but by the same token she could not take advantage of market gains. If Wife had planned to take advantage of gains in the market from day the parties agreed her share would be $130,000, that needed to be explicitly stated in the Marital Dissolution Agreement.

Careful drafting of Marital Dissolution Agreements and timely completion of Qualified Domestic Relations Orders will keep you from being surprised by the final division of retirement assets in a divorce. In addition to addressing gains and losses, your Marital Dissolution Agreement should also cover who is responsible for legal fees for preparing the QDRO, the division of administrative costs, the valuation date, exclusion of loans, any survivor rights, and for pensions whether the award is a shared or separate interest.

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What you need to know about uncontested divorces in Tennessee

Laura Wyrick — Mon, 16 Dec 2019 00:10:50 +0000

When a married couple decides to separate, an uncontested divorce can have immeasurable benefits for both spouses. You cannot put a price on being able to continue to communicate with one another long term and work together for the benefit your kids. In addition, if you reach an agreement, the divorce can be finalized more quickly. Since attorneys charge by the hour, both parties save money when the lawyers can skip extensive negotiations and courtroom battles.

If your divorce is amicable, you may be thinking about “sharing a lawyer.” However, a divorce is an adversarial legal action by its nature which means that a lawyer cannot ethically represent both you and your spouse. The lawyer may represent only one of you and cannot give legal advice to the unrepresented spouse. One lawyer may still draft the agreement and the other necessary documents on behalf of one spouse, but it is always recommended that the other spouse meets with an independent lawyer to review and explain the agreement before everyone signs.

Once the final settlement papers are in order, the documents will be submitted to the Court for review. Depending on which Court your case is filed in, one party may need to appear with their lawyer for a brief conference with the Judge to quickly affirm the agreement before the divorce is final. After the Judge signs off, you will receive an official Decree of Divorce.

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Grandparent rights in Tennessee

Laura Wyrick — Sat, 09 Nov 2019 08:15:02 +0000

Tennessee law permits grandparents to seek visitation with grandchildren in certain limited circumstances as set forth in T.C.A. § 36-6-306. Grandparents have standing to file a legal action for visitation if the grandchild’s parents are unmarried, divorced, missing or deceased. If the child’s parents are living and married to one another, the grandparent may still file an action for visits but only if the child resided in the grandparent’s home for at least a year, or the grandparent and child had a significant relationship for a year before contact was reduced.

Once a case has been filed, Grandparents may be granted reasonable visits only if such visits are in the best interests of the child after the grandparent has shown: (1) the child’s parents oppose the grandparent’s contact, (2) visitation has been severely reduced, and (3) there is a presence of a danger of substantial harm to the child. The third element can be shown if a severe reduction in an existing grandparent relationship is likely to cause substantial emotional harm to the child.

If the grandchild is in foster care, however, T.C.A. § 36-6-302 authorizes the Court to grant grandparents reasonable visitation rights if visits are in the best interest of the child and the grandparent will adequately protect the child.

Grandparent visitation cases are complex and highly fact sensitive. The contents of this post do not constitute legal advice or suggest any outcome of your individual case. You should seek the advice of an attorney based on the facts and circumstances of your case before taking any action.

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Child support for disabled adult children in Tennessee

Laura Wyrick — Sat, 26 Oct 2019 02:42:33 +0000

Child support obligations in Tennessee are based on statutes, case law, and the Child Support Guidelines regulations, and typically expire when the child reaches age 18 but can be extended based on a child’s disability. T.C.A. § 36-5-101(k) is the statutory authority for Tennessee courts to order child support obligations for parents after a disabled child reaches the age of adulthood.

Child support payments may be ordered to continue until the disabled adult child reaches age 21. When the nature of the disability is severe, the Court may determine that continuing support beyond age 21 is in the child’s best interest. How long support continues and the amount of the support obligation is within the discretion of the Court.

The Tennessee Court of Appeals recently affirmed an order for child support beyond age 21 in the matter of Lillard v. Lillard (Tenn. App. 2021). In this case, the adult child had an IQ of 68 and a diagnosis of ADHD had graduated high school and was capable of working unskilled, part-time jobs for short periods of time. The child remained living with her mother who supervised and assisted with the child’s personal hygiene and personal care, healthcare, finances, and transportation. The child’s father was ordered to pay support for his adult child in an amount equal to the child’s outstanding monthly frugal living expenses after subtracting the child’s contribution from her own employment.

The Lillard case shows that child support for disabled adult children may continue where the severely disabled child is capable of maintaining employment. Furthermore, the amount of the obligation may not be determined using the Tennessee Child Support Guidelines, but instead may be based on an in-depth review of the expenses and needs of the child.

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Qualifications for a Civil Order of Protection

Laura Wyrick — Sat, 28 Sep 2019 04:25:03 +0000

The purpose of a civil Order of Protection is to legally restrain a family member or intimate partner from committing or threatening acts of physical violence against a relative, domestic partner or child. Orders of Protection are also available for stalking victims, regardless of whether the perpetrator of the stalking is a family member or intimate partner. Orders of Protection are civil matters distinct from a No Contact Order that may be issued incident to a criminal prosecution.

A victim of domestic violence, sexual assault or stalking can submit a Petition for an Order of Protection to the Court that outlines the reasons for the threat in detail. The Petition can be filed for the victim as well as on behalf of the victim’s children. After reviewing the initial application, the Judge may determine that emergency order should be entered immediately. An emergency order may prohibit all contact with the victim(s) and evict the perpetrator from a shared residence.

A hearing on the Petition will be scheduled to occur generally within 15 days. At the hearing, the Petitioner has the burden to prove the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence and the alleged perpetrator may present their defense. If the Court finds that the allegations have been sufficiently proven, the Judge may extend the order of protection up to one (1) year. The Order may be extended beyond one year for cause if it is violated by the perpetrator while in effect. If the allegations are not sufficiently proven by the applicant, the Petition will be dismissed.

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