Practice Area Overview
Family Law
Adoptions
Tennessee does not recognize open adoptions. An adoption forever terminates the parental rights of the biological parent. In relative adoptions a home study (which is costly) is not required. Parental rights may be voluntarily surrendered. If a biological parent does not voluntarily surrender his/her rights, a judge may terminate the rights for a number of reasons, including abandonment or severe child abuse.
Divorce
There are two types of divorce in Tennessee: Contested and uncontested. If the Husband and Wife can agree on a division of assets and debts and parenting time (custody), then the divorce is an uncontested divorce. If they cannot agree, then the divorce is contested. A fault ground must be alleged (eg. adultery, abandonment, inappropriate behavior). A judge determines asset and debt allocation and parenting time. The judge will divide marital property. Marital property is anything acquired during the marriage except for gifts and inherited property. Marital property includes pensions and 401Ks to the extent they were accumulated during the marriage. The amount of child support is determined by the incomes of both parents, daycare costs, insurance costs, and occasionally other factors. In custody cases, the judge must make a decision based upon what is in the best interests of the child. If a divorce has already been granted and one parent wants to change custody, then that parent must prove that there has been a material change of circumstances which affects the child.
Alimony
Tennessee recognizes four types of alimony: alimony in future (eg. Husband pays the wife $500.00 per month until she dies or remarries), alimony in solido (a definite amount of money is taken from one party and awarded to the other party. This can be one lump sum payment or broken down into a number of payments), rehabilitive alimony (an amount of money for a period of time. The length of time may be extended), and transitional alimony (an amount of money for a fixed period of time. The time period cannot be extended). Whether or not alimony is awarded depends on a number of factors, such as a comparison of incomes of the husband and wife, the age of the parties, the education and training of the parties, the length of the marriage, the needs of the parties, fault, standard of living, etc.).
Wills, Probate, Conservatorships, Guardianships and Powers of Attorney
Wills
Every person should have a will, so as to insure that his or her wishes will be carried out after death. Unfortunately, just telling a family member, "I want Uncle John to have my antique radio" does not mean that will happen unless a will exists. If a person dies intestate (without a will) there is a specific statutory scheme which dictates who will inherit. Often, the statutory scheme is not what a decedent would have wanted.
Probate
Probate is a process whereby a will is admitted to probate and administered. Assets are gathered, debts are paid, and the remainder is distributed according to the terms of the will. Occasionally, the validity of a will is contested. The person contesting the will must prove that the testator (deceased person) was not mentally competent or was the victim of undue influence.
Powers of Attorney
There are several types of powers of attorney: general, limited, durable, and heath care. A general power of attorney allows the holder (attorney-in-fact) to conduct any and all business that the grantor could conduct, such as write checks, sign tax returns, buy and sell property, sue someone, etc. It is revocable. A limited power of attorney is for a limited purpose, and frequently for a limited time. A power of attorney for health care is limited to health care decisions. A durable power of attorney survives the incompetence of the grantor. So, if Grandmother gives Grandson a durable power of attorney and if Grandmother becomes senile, the durable power of attorney is still valid.
Conservatorships
If an adult is incompetent and does not have a durable power of attorney, then a conservator should be appointed. Conservatorships are generally for the person and for the estate (money, property, and other assets) of the disabled individual. A petition is filed, the judge appoints an attorney to serve as a guardian ad litem. The guardian ad litem investigates whether or not the proposed ward is really in need of a conservator. A hearing is scheduled (usually the hearing is brief). Generally, conservatorship petitions are granted. Whomever is appointed (usually a family member) must make an annual accounting with the court and prepare a status report to advise the Court of the ward's condition If there is no family member willing to serve as conservator, then Judge in Davidson County will appoint a public conservator. If the conservatorship is for the estate of the ward, the conservator must prepare a property management plan which is submitted to the judge for approval. A conservatorship of the person allows the conservator to determine the living arrangements of the ward and to make health care decisions.
Guardianships
Guardianships are for minors, as in conservatorships, a guardianship may be for the person or the estate (or both) of the minor. If a minor inherits a significant sum of money (unless it is held in a trust) a guardianships must be created.
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