Judy A. Oxford, Attorney at Law
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Williamson County Divorce Law Blog

Mediating property division in a divorce

Dividing property can be one of the most difficult issues in a divorce, especially in those cases where the parties have accumulated significant assets during the marriage. Tennessee law requires the divorce court to order the parties to participate in mediation to resolve their differences, including the division of marital assets. While many people have a general understanding of this requirement, persons facing a divorce do not always understand how the process works and how it can be beneficial.

Mediation requires the services of a third party, usually a retired judge or specially trained lawyer. The mediator is trained to listen to the parties and to understand their positions without judging the legal merit of the argument. Perhaps the mediator's most important function is to explain a party's position to the other party, thereby ensuring that a dispute is not the result merely of misunderstanding. A mediator can be especially helpful in resolving complex property division issues by suggesting alternative means of valuing or dividing particular assets.

Understanding domestic violence in Tennessee

In Tennessee and elsewhere, acts of domestic violence are rarely premeditated; rather, they most often arise from spur-of-the-moment arguments about any number of life issues. A false allegation of domestic violence can also be spawned by the same incident or by a wish to gain revenge for imagined abuse. In any event, persons who are the subject of domestic violence or have been charged with such acts can benefit from a basic understanding of Tennessee's laws on this subject.

The first requirement of domestic violence is proving that parties share or have shared an intimate relationship, including marriage, co-habiting or dating; or have a relationship as parent and child through blood or adoption. "Abuse" means the intentional infliction of or attempt to inflict physical injury on the other person in the relationship. Abuse includes many different acts, all of which share the common attribute of engendering or attempting to engender fear of physical harm in the victim. Examples of abuse include physical harm, physical restraint, malicious damage to personal property and injury to pets. Abuse also includes threats to commit any of these acts.

Challenging a prenuptial agreement in Tennessee

This blog has written before about the use of prenuptial agreements in Tennessee to protect a person's assets from an unfavorable distribution in the event of a divorce. Tennessee's divorce code expressly states that such agreements are enforceable and binding upon the courts if certain conditions are met. What happens, however, if those conditions cannot be satisfied?

Tennessee law states that a prenuptial agreement shall be enforced if "in the discretion of [the] court" the agreement was agreed to by the spouses "freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse." While this language appears to make a prenuptial agreement ironclad, a careful reading provides a method for mounting a challenge to such an agreement.

Dividing property in a Tennessee divorce

A divorce in Tennessee can involve many emotionally and financially difficult issues, including custody of minor children, payment of spousal maintenance (alimony) and property division of the couple's assets. If a couple cannot agree on the resolution of these issues, the court will impose its own solution based upon the pertinent statute.

With respect to property division, couples who marry in their twenties and then end the marriage after a few years will be unlikely to have accumulated significant assets, although one or both may own substantial assets acquired before the marriage. Dividing property in such cases is usually not difficult, but for couples who have been married for a number of years or who have accumulated significant assets during the marriage, property division can be very difficult.

Baby's death ends complex, difficult custody dispute

When most people in Tennessee hear the phrase "child custody fight," they assume that the dispute is limited to the child's parents, but some custody disputes may involve other parties, including grandparents, the state of Tennessee and one or both natural parents. A year-long child custody fight involving all of these parties and others tragically ended on New Year's Eve when the subject of the dispute, a one-year-old girl, died in her sleep.

The girl was born in late 2014 to two teenage parents. The father, who was 15 at the time of the birth, and his mother (the baby's grandmother) asked to be awarded custody of the baby. The girl's fourteen-year-old mother, who was living in a juvenile detention facility during the pregnancy, at first agreed to this request, but she subsequently changed her mind and allowed a foster couple to take the child from the hospital.

Enforcement of custody orders in other states

As most divorcing couples in Tennessee realize, the entry of the divorce decree by the court does not always end disputes about child custody or the payment of alimony and support. A common cause of such disputes is the decision by one or both spouses to relocate to another state. In 1999, the Tennessee legislature enacted the Uniform Child Custody Jurisdiction and Enforcement Act to aid former spouses in enforcing or modifying the terms of a child custody decree after the former spouse has moved out of the state.

The act is intended to provide an expeditious method of resolving child custody disputes while preserving basic constitutional rights to notice of a proceeding and the opportunity to present evidence. The essential concept behind the act is that all divorce decrees and orders must be treated as fully enforceable by courts in any other state regardless of the jurisdiction in which the order was originally entered and against all parties over whom the original court had jurisdiction. Courts in Tennessee and in most other states may decline to hear an application for relief if it determines that this state is an inconvenient forum for one or more of the ex-spouses or any children.

Grandparents' visitation rights in Tennessee

Disputes concerning child custody between divorcing spouses are common features of divorces in Tennessee. A less-noticed type of custody dispute is the desire of biological grandparents to obtain and enforce a legal right to visit a child after the divorce becomes final.

When the Tennessee legislature adopted the Uniform Child Custody Act in 1979, it enacted a provision that deals specifically with this issue in cases where the child is removed from the custody of both parents or a guardian and placed in a licensed foster care home or other home or facility licenses or operated by the courts. The provision allowing grandparent visitation rights does not apply to cases where the child has been adopted by persons other than stepparents or other relatives.

Domestic violence leads to alleged death threat

Domestic violence can take many different forms. Sometimes it involves the use of a weapon; in other instances, physical force is used. As demonstrated by a recent arrest for domestic violence crimes in Murfreesboro, many cases also involve a threat of greater violence used to intimidate the victim.

A 22-year-old woman was attempting to flee her boyfriend, allegedly because he had threatened her with physical abuse. According to authorities, she ran out of his apartment, and he chased her into nearby woods. Police said the boyfriend caught her and held her by the back of the neck. He allegedly locked her in a shed in the woods and told her not to reveal her location or he would kill her. He reportedly gestured toward his hip as if to indicate that was where he carried the weapon. Police said the woman then sent a text message to her mother asking for help and saying that the boyfriend was drunk and threatening her. The mother drove to the apartment complex where the boyfriend lived, but just before she arrived, she received a second message from her daughter relaying the death threat. Police were summoned, and they found the young woman in the shed. The boyfriend was later taken into custody.

The rights of non-custodial parents under Tennessee law

The custody of minor children can be one of the most painful and contentious issues in many Tennessee divorces. The argument usually focuses on which parent will have physical custody of the kids. But even a parent who loses a custody fight - the "non-custodial parent" - has certain rights under Tennessee divorce law.

The following enumeration of rights of non-custodial parents assumes two things - that the exercise of the rights will serve the best interests of the child and that the non-custodial parent has done nothing to forfeit any of these rights. Subject to these caveats, a non-custodial parent has the following minimal rights:

  • Telephone calls at least twice a week
  • Uncensored mail
  • Receipt of important information as soon as possible, and no later than 24 hours after hospitalization or serious illness
  • Receipt of medical records
  • Freedom from derogatory marks about family members while in the child's presence
  • Receipt of 48 hours of extra-curricular activities and performances
  • Receipt of an itinerary if the custodial parent takes the child out of the state for longer than 48 hours
  • Access and participation in the child's education and related activities

Miscellaneous tax questions concerning divorces

In our last post, we reviewed the income tax consequences for persons in Tennessee of an order for dissolution of the marriage that requires one spouse to pay alimony to the other. In this post, we want to cover several miscellaneous tax topics regarding divorce that do not by themselves justify a full post.

Perhaps the most important point involves child support. Unlike alimony, child support is neither taxable to the recipient nor deductible by the payor. Period. That's all.

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JUDY A. OXFORD
Attorney At Law
400 Sugartree Lane, Suite 520
Franklin, TN 37064

Phone: 615-791-8511
Fax: 615-791-1346
judyaoxford@comcast.net
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