Memphis Bar Association

FAMILY/DIVORCE LAW

 Courtesy of the Family Law Section of the Memphis Bar Association

How much will this cost me? 

The cost of any family law case is almost impossible for an attorney to determine up front, even after an initial interview with a client. There are many different factors that will determine the total cost of a family law matter: the complexity and novelty of the issues presented, the reasonableness of the opposing party and/or counsel, and the value of the assets and liabilities that will necessarily have to be divided. Sometimes cases that start out simple may become complex as the parties go through the discovery process. A divorce can be particularly costly when parties disagree about parenting of their child(ren). When there are children involved, it is usually in the children’s best interests for the parties to reach a settlement.

 How long will it take to complete my case? 

The length of a case from the initial filing in the courts to the final decision, either by agreement or following litigation, may take several months or several years. Naturally, if the parties can reach an agreement outside the courtroom through mediation or a settlement conference between attorneys, the resolution is quicker. Tennessee law now requires that divorcing parties attend mediation within 6 months of the filing of a complaint for divorce. If a case goes to trial, however, a matter may take 6 months to more than 2 years.

Where do I start if I want to file a complaint for divorce or a complaint for legal separation?

In Tennessee, a party must prove grounds for divorce or legal separation. These grounds for divorce are listed in Tennessee Code Annotated § 36-4-101. The most common grounds in a complaint for divorce are “irreconcilable differences” and “inappropriate marital conduct.” “Irreconcilable differences” is similar to a ‘no-fault’ divorce, although Tennessee is not a ‘no-fault’ divorce state. The parties must reach an agreement to be divorced on grounds of "irreconcilable differences." According to T.C.A. 36-4-101 ‘inappropriate marital conduct’ is defined as “cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper.” Many divorces are granted on these grounds. Some parties obtain a legal separation but there has to be a possibility of reconciliation. You will need to consult with an attorney to determine which avenue is appropriate for your case.

 What is discovery?

In order to divide up the assets and debts in a marriage equitably, your lawyer will first need to know what those assets and debts are. The investigation of your and your spouse’s employment history, tax returns, bank accounts, real estate, antiques, inheritances, health histories, and monthly expenses is required in order to make a reasonable assessment of the situation. Tennessee is an equitable distribution state, not a community property state. This means that assets acquired during the marriage are subject to equitable distribution. There are exceptions to this rule if the assets were owned prior to the marriage, or if they were inherited or received as a gift from third parties. Property that was owned prior to marriage, received as a gift or through inheritance is separate property and not divided in a divorce or legal separation.

 What is a deposition?

A deposition is a part of the discovery process. A deposition is taken when an attorney asks questions of a party or witness when that person is under oath. It will be recorded by a court reporter, and is attended by all parties and their attorneys.  Generally attorneys for both parties will take a deposition of each party to uncover additional evidence or to answer questions regarding documents and information that have already been produced.  See the General Legal Help section for more information about depositions.

 How are the property and liabilities divided in a divorce?

The division of marital property and marital liabilities is based upon an “equitable distribution.” Marital property is all property acquired during the marriage, other than property received as a gift or inheritance. Although in many cases equitable may mean equal or 50/50, the court can award more or less than one-half of the marital estate or liabilities if there is a reason to award more or less to a particular party.

 What is alimony and how is it awarded?

Alimony (also known as spousal support) may be awarded to either spouse for their support and maintenance during and after the divorce. The primary factors in determining alimony are the need of one spouse and the ability of the other spouse to pay alimony.  Except in certain circumstances delineated by statute, alimony is usually only awarded for a short period of time. Alimony may be paid in a lump sum payment of money or in a monthly amount.  There are several different types of alimony, and a party may receive more than one type of alimony at the same time.  Your attorney can better help you determine whether alimony is appropriate for your case and determine the amount and duration of the alimony.

 How are custody and parenting time decided?

In most cases, parents agree about the custody, child support, and visitation/parenting time schedules relating to their children. It is generally best for the children for the parents to be able to reach an agreement; however, if the parents are unable to come to an agreement, a judge or chancellor will ultimately decide these issues for the parents.  Court orders providing for the custody of children are subject to modification after the divorce if there is a material and substantial change in the circumstances of either parent. The material and substantial change cannot be a foreseeable event, such as a child becoming a teenager.  The parent who has custody of the children is the ‘primary residential parent.’ The non-custodial parent is the ‘alternate residential parent.’ The phrase “visitation” is no longer used in Tennessee; the parents have a ‘parenting time’ schedule for their child(ren). Custody of a child is also awarded based on the best interests of the child; there are ten (10) statutory factors the court must consider to determine custody in Tennessee:

(1) The love, affection and emotional ties existing between the parents or caregivers and the child;

(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;

(3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; provided, that, where there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37- 1-602, by one parent, and that a non-perpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody;

(4) The stability of the family unit of the parents or caregivers;

(5) The mental and physical health of the parents or caregivers;

(6) The home, school and community record of the child;

(7)(A) The reasonable preference of the child, if 12 years of age or older; (B) The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that, where there are allegations that one (1) parent has committed child abuse, as defined in § 39-15-401 or § 39- 15-402, or child sexual abuse, as defined in § 37-1-602, against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected to the evidence. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings;

(9) The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child; and

(10) Each parent or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. TCA 36-6-106(a)

All divorcing parents with children must attend a parenting seminar and must have a Permanent Parenting Plan. A Permanent Parenting Plan is a form that must be agreed upon by the parties or ordered by the judge or chancellor. You can view the Permanent Parenting Plan at http://www.tsc.state.tn.us/geninfo/programs/Parenting/Parenting.htm

The award of custody of a child is made without regard to the sex of a parent.

 What is child support and how is it calculated?

A non-custodial parent can expect to pay child support until a child is emancipated (turns 18 or graduates from high school, whichever occurs later). In the event a child is disabled, a child support obligation may continue after the child is emancipated.  Child support is based upon the income of both parents, expenses each parent pays for the child(ren), and the number of days in a given year that the child(ren) spend with each parent.  A child support worksheet must be filed with the court for every divorce action involving minor children. The worksheet can be downloaded at http://www.state.tn.us/humanserv/is/isdownloads.htm .  In Tennessee, child support can be modified if either parent has another child for whom they become legally responsible, or if a parent has a variance in their income that justifies an increase or decrease. A significant variance is defined as a change of at least 15% in the resulting appropriate child support award based on the new income. For lower income parents, a significant variance exists if there is a 7.5% change in the resulting child support calculation.

 How do we reach a settlement?

Settlement is encouraged by the courts in all family law matters that do not involve violence or domestic abuse. A settlement is preferably reached based on the full disclosure of all relevant information from each party to the other. In some cases, settlement may be reached based on the limited disclosure of relevant information to one another; however, it is difficult for an attorney to give accurate legal advice unless all the facts are before the attorney.  The settlement process can be initiated voluntarily by the parties or ordered by the court. Settlement can be reached by the exchange of settlement offers, by a settlement conference or through mediation that utilizes a neutral third party.  Tennessee law requires divorcing parties to attend mediation within six months of filing for divorce. If settlement is reached, a written agreement signed by both parties is submitted to the court for approval. If the agreement is approved by the court, a judge or chancellor will sign a Final Decree of Divorce, or Decree of Legal Separation. If settlement is not reached, the case will proceed to trial. Each side will present their evidence and arguments, and the judge or chancellor decides the issues the parties have not resolved, including child custody and parenting time, child and spousal support, and property division. If appropriate, either or both parties can appeal the judge’s decision to a higher court. 

If I marry someone who is paying child support will my income ever become a factor?  

A new spouse’s income will not be included in a child support calculation for a parent paying or receiving child support.  There are situations where a Court may impute an income to a parent for the purposes of calculating child support, however, such as if a parent is voluntarily not working or is voluntarily under-employed. 

 DISCLAIMER:  The preceding appears courtesy of the Family Law Section of the Memphis Bar Association whose contributions toward its content are greatly appreciated.  However, the summary explanations above are for general informational purposes only and are not intended as legal advice.  No attorney-client relationship is created herein.  As each is unique, specific legal advice should be sought for each situation in which legal advice may be warranted.

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 Labor & Employment

Courtesy of the Labor & Employment Law Section of the Memphis Bar Association

 Click here to download information from Memphis Area Legal Services Inc. regarding Unemployment Benefits.

My employer told me I would be laid off and gave me the option to go ahead and quit. What should I do?

In most circumstances, if you are laid off due to lack of work, position elimination or reorganization, you would be entitled to receive unemployment compensation benefits. If you quit or resign "without good cause attributable to the employer," you may be disqualified from receiving unemployment compensation benefits. A resignation in lieu of involuntary termination will probably not disqualify you from benefits. While many employees want to be able to say they resigned, rather than were terminated, being laid off simply does not have the same stigma in today's economy that it had a year or two ago. However, before resigning, you will want to see if your company has a written policy that entitles you to certain severance pay, recall rights, or the like, upon lay-off, which may not be available to you in case of resignation.

Due to tough economic times, I need to lay-off a third of my workforce in order to survive. What are the legal implications?

You should consider alternative cost-saving measures, such as shorter work days/weeks, pay reductions, exit incentive plans, etc., prior to involuntary lay-offs or RIF. However, if an involuntary workforce reduction is unavoidable, it is important to do so legally by clearly setting forth the criteria upon which the lay-off decisions will be made, evaluating the possible adverse impact upon protected groups (race, gender, age, etc.), determining whether severance or separation pay is required or will be offered, determining whether the company wants to obtain releases of liability in conjunction with the lay-offs, evaluating whether and how much notice must be given to employees, and preparing an effective communication strategy that will lessen the impact on employees and the liabilities for the company.

My employer just closed our plant without any warning or severance pay. Is that legal?

It depends. Under the federal WARN law, employers with 100 full-time employees must typically give 60 days' notice of a plant closing (50 or more employees) or mass layoff (500 employees or 33% of a workforce of 50-499). Some exceptions, such as unforeseeable business circumstances, may eliminate the need for notice. Also, in Tennessee employers with 50-99 full-time employees at a site in the state must provide notice of a reduction of 50 employees within a 3 month period.

My company fired me after I was a loyal employee for 20 years. I believe it was because of my age, since the plant just got a new manager who is around 30. What should I do?    

While it is not unlawful to fire someone despite years of loyal service, the Age Discrimination in Employment Act (ADEA) and a similar Tennessee statute prohibit termination based on age if you are 40 or over. You may consult an employment attorney who can discuss the specific facts and evaluate your case. You may also file a complaint with the Equal Employment Opportunity Commission or the Tennessee Human Rights Commission. These agencies will then investigate your complaint and determine whether they believe the law was violated.               

I believe I am being sexually harassed at work. What should I do?  

Most employers have policies prohibiting sexual or other types of harassment and explaining the complaint procedure to be followed. It is important to follow the employer's policy and procedures regarding making a complaint, as this could affect your legal rights. If you are unsure of the policy or unsatisfied with the results of  following the complaint procedure, you may contact an attorney who is familiar with employees' rights in the workplace and/or contact the  Equal Employment Opportunity Commission or the Tennessee Human Rights  Commission.        

My employer does not provide any paid vacation. Is this illegal?  

No. Employers are not required to provide paid vacation in Tennessee.    

What should I do if my employer refuses to pay me for overtime or asks me to work off the clock?

Some positions, such as certain executives, administrative employees, professions, and outside salesmen, are usually exempt from overtime requirements under federal law.  However, if an exemption does not  apply, you are entitled to compensation for all hours worked, including overtime for all hours worked in excess of 40 each work week. You may consult with an employment attorney or the Tennessee or U.S. Department of Labor to determine your rights and the best course of action.                   

My daughter was in the hospital for two weeks, and my employer refused to give me unpaid time off to take care of her. Was this illegal?

That depends on several factors, including the size of your work site. The Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave in such situations if you work at a site that has at least 50 employees within a 75 mile radius.   You must also meet other requirements, such as working at least 1250 hours for the employer in the previous year.  If you work for a smaller work site, the law does not require the employer to provide unpaid leave. You should also review your company's policies regarding leave.               

What is the Employee Free Choice Act?               

This is a proposed federal law that would amend the National Labor Relations Act (NLRA) to make it easier for employees to join and form unions, increase penalties for employers who fire employees for trying to join and form unions, and provide neutral assistance from federal mediators to help employers and unions agree on the terms of a first contract.  EFCA would add another method for a union’s certification as the exclusive bargaining representative for a group of non-supervisory employees.  In addition to NLRB-conducted elections and voluntary recognition by an employer, EFCA would let a union present an employer with cards signed by a majority of non-supervisory employees saying they want to be represented by the union.  Once the cards were verified as authentic (“card check”), the union could ask the NLRB to certify the union without holding an election.  

I am a small business owner. A group of employees came to my office demanding that the company stop deducting lunch breaks from their pay checks when they fail to clock out. I want to fire them and dock their pay for the time they missed work. Is this legal?         

Because the employees' action in approaching you about their wages could be considered protected, concerted activity, terminating their employment could be considered a violation of the National Labor Relations Act. Additionally, docking pay for time the employees actually worked may violate the Fair Labor Standards Act. You should consult an attorney who advises employers in labor and employment law before taking any action against the employees.                 

I've recently started by own small business.  Where can I find out what labor and employment law and regulations apply to me?      

Which labor and employment laws apply to you will depend, to some extent, on the number of employees you have and your particular industry.  Generally speaking, most employers must be aware of their obligations under wage and hour laws, fair employment or non-discrimination laws, employment-related immigration laws, occupational safety and health laws, applicable family and medical leave laws, workers' compensation laws, and the National Labor Relations Act. Some websites, such as www.eeoc.gov and http://www.tennesseeanytime.org/employment/emplaws.html, provide useful compliance information for small business owners.

DISCLAIMER:  The preceding appears courtesy of the Labor and Employment Law Section of the Memphis Bar Association, whose contributions toward its content are greatly appreciated.  However, the summary explanations above are for general informational purposes only and are not intended as legal advice.  No attorney-client relationship is created herein.  As each is unique, specific legal advice should be sought for each situation in which legal advice may be warranted.

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Landlord / Tenant Law

Click here to download information from Memphis Area Legal Services Inc. regarding the Landlord Tenant Act.

Click here to download information from Memphis Area Legal Services Inc. regarding Eviction.

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Real Estate Law

Courtesy of the Real Estate/Environmental Law Section of the Memphis Bar Association

Do I need an attorney to advise me on my home purchase or sale? 

The use of an attorney may prove exceedingly helpful in the purchase or sale of your home.  An attorney, experienced in the process of home purchase, may provide a multitude of services throughout the real estate transaction.  While an attorney should be consulted to complete the purchase or sale of your home, he or she can be beneficial early in the process, such as prior to signing the sales contract.  An attorney can assist in drafting the contract by offering custom suggestions to address your particular needs in the home purchase.  As the transaction progresses, an attorney can offer additional assistance, including the items listed below.  While extremely experienced in helping buyers and sellers, your Realtor® cannot give you legal advice.

What are some of the pitfalls in the home purchase and home sale process?

Pitfalls in the home purchase and sale process include improperly drafted contracts, unqualified buyers, missed closing dates, title defects, poor advice from unqualified sources, improper disclosure of material facts or defects, survey problems, lack of proper or necessary inspections, and many more.  While all risk in a real estate transaction cannot be eliminated, the risk can be minimized or managed with proper advice.

What does an attorney do in the closing process?

An attorney may provide one, or typically several, of the following services, along with many additional services:

·        Provide advice concerning contract drafting.

·        Give advice on the legal implications of the contract and other documents.

·        Assist in negotiation for the purchase or sale where required.

·        Obtain and examine title evidence to assure good title to the property.

·        Order and review a property survey.

·        Request payoff statements for any encumbrances.

·        Obtain or review a commitment for a title insurance policy.

·        Coordinate the closing with other professionals in the transaction.

·        Prepare a statement of closing costs including proration of taxes, etc.

·        Prepare and review loan documents.

·        Prepare or review deeds transferring the property.

·        Close the transaction and explain the documents involved in the closing.

·        Collect and disburse the funds required for closing.

·        Obtain releases of the Deed(s) of Trust and other encumbrances affecting the property.

·        Manage recording of the Deed, Deed of Trust and other documents.

·        See to the issuance of title insurance.

·        Follow up on post-closing matters.

What is the difference in a real estate appraisal, a property survey and a home inspection, and do I need all three?

A real estate appraisal is an opinion of fair market value of a particular piece of property.  The appraisal must done by a licensed professional who visits the property.  The appraiser may calculate square footage of the dwelling, look at its general condition, compare it to other comparable sales in the area, compare features with comparable properties, analyze market conditions and arrive at a value for the property.  The appraiser does not review the same features as a home inspector.

A property survey is a drawing of property boundaries with a depiction of the boundaries, structures, fences, easements and other features shown on the drawing.  To be called a survey, the drawing must be done by a licensed surveyor.  In the typical residential real estate transaction, a product known as a “mortgage loan inspection” is substituted for a survey.  It is not required in Tennessee that a surveyor prepare the “mortgage loan inspection;" however, in this area most are done by surveyors.

 A home inspection is done by a professional trained in evaluating the condition of property, its appliances, equipment and amenities.  The home inspector will visit the property to test and inspect various components of the home. The inspector will then prepare a written report as to their findings and recommendations concerning the condition of the property.  The home inspector does not determine value of the home.

 The purchase of a home may require the services of one or more of these professionals.  Each provides an extremely valuable service in the home purchase process. 

 What is a “home warranty” or a “home protection plan”?

A home warranty is generally a promise that a property is free of listed defects.  Home warranties are often provided by homebuilders on newly constructed homes.  The warranty may be backed by a third party who will partially guarantee the home to be free of material defects in workmanship and materials, guarantee the major systems in the home (plumbing, electrical, heat, air conditioning, etc.), and guarantee the home to be free of structural defects.  The warranty period for the various components of the home will vary from plan to plan.

A home protection plan is generally in the nature of a service contract administered by a third party.  These are available on existing homes.  These may be referred to as a home warranty, but differ in that they are less comprehensive.  The plan will provide coverage for systems and appliances for a given property for one year.  Many of the plans offered may be renewable from year to year. They will usually have a deductible feature for each service visit.

 The differences in plans and warranties may be dramatic.  They should be thoroughly reviewed prior to purchasing a property because of a purchaser’s reliance on a particular plan. 

 What is title insurance?

Your home is typically your most expensive and important investment.  A review of the public records may not discover defects in the title to property.

Title insurance is a single premium form of insurance that protects the policy holder, e.g. a homeowner, for so long as they may have any interest in their home, against matters that may not be discoverable by an examination of title to real property, such as:

 ·        False impersonation of the true owner of the property

·        Forged deeds, releases or wills

·        Undisclosed or missing heirs

·        Instruments executed under invalid or expired power of attorney

·        Mistakes in recording legal documents

·        Misinterpretations of wills

·        Deeds by persons of unsound mind

·        Tax liens against an owner that may not yet be recorded

·        Deeds by minors

·        Deeds by persons supposedly single, but in fact married

·        Liens for unpaid estate, inheritance, income or gift taxes

·        Fraud

·        Unposted taxes

 Title insurance will protect you against these type of unknown risks and will pay for defending against any lawsuit attacking the title and either clear up the problem or pay the loss to the insured.  Tennessee law requires that you be offered owners' title insurance at the closing of your home.

 Do I need to obtain a title policy if my lender is getting one?

Although the decision whether to obtain a title insurance policy is a personal one, the low cost of title insurance in Tennessee may favor an owner’s obtaining a policy.  A title policy is a policy of insurance that generally benefits only the named insured, and a policy in the name of an owner’s lender is essentially of no benefit to the owner and cannot be enforced by the owner.  Generally, in underwriting a loan, lenders require that their lien against the property be in a “first priority” position, i.e. that no other lender, contractor or other person who could claim a lien against the property has one that could trump or “prime” that of the lender.  A lender’s title policy, also known as a loan policy, insures the lender that it has such priority.  While the loan policy assures the lender that the borrower owns the property and therefore has the right to grant a lien against it, that policy does not extend such assurance to the owner.  Accordingly, an owner’s obtaining an owner’s title insurance policy, and a lender’s obtaining a loan policy, is not redundant.  Furthermore, in most instances in which a lender obtains a policy to insure its deed of trust or mortgage, an owner’s title policy can be obtained simultaneously for a minimal, additional charge.

 DISCLAIMER:  The preceding appears courtesy of Kirkland, Rothman-Branning & Associates, PLLC, Sisson and Sisson Law Firm, and Bass, Berry & Sims PLC, whose contributions toward its content are greatly appreciated.  However, the summary explanations above are for general informational purposes only and are not intended as legal advice.  No attorney-client relationship is created herein.  As each is unique, specific legal advice should be sought for each situation in which legal advice may be warranted.

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