Tennessee Example Parenting Plan

Here is an example of a Tennessee Permanent Parenting Plan which is used for both divorce and custody cases in Tennessee.  Tennessee Blank Parenting Plan

If you are doing a divorce or custody case in Tennessee, you need to work through the Parenting Plan and create a Plan that is in the best interest of your children.

At Invisible Lawyer, a lawyer is willing to work the Tennessee Parenting Plan with you.

Tennessee Relocation Statute and the Military

The Tennessee Relocation Statue at TCA 36-6-108 has become a very important statue for many Tennesseans with children that want to move out of the state.  In Montgomery County, we deal with this issue quite frequently due to the high number of military families in our area.  I have represented many soldiers and their families in relocation cases this past year.  Most of the issues were as a result of the soldier coming down on “orders” and being forced to locate to another state or country.  The permanent change of station creates a frequent issue for the judges in our county.

I have also represented several clients in Davidson County with relocation cases.  The two counties are very different in the way that they deal with the move of a family out of state.

The relocation statue has two different provisions that apply differently to parents wanting to relocate with their minor children.  The key is to look at two issues.  How much time the parents are spending with the children by practice.  And, how much time the parents are spending with the children by the parenting plan.

If you are planning to move out of Tennessee, you must understand the Relocation Statute.  Essentially, the idea is this:  If one of the parent desiring to relocate has more time with the child, they will probably be allowed to move, but a new parenting plan will probably be needed.  If both parents have equal time with the child or children, there will be a fight and the court will determine what is in the best interest of the children.  This “best interest test” will determine whether the child can relocate with the moving parent.

The statute reads as follows:

Tennessee Relocation Statute
Tenn. Code Ann. § 36-6-108
§ 36-6-108. Parental relocation
(a) If a parent who is spending intervals of time with a child desires to relocate outside the state or more than one hundred (100) miles from the other parent within the state, the relocating parent shall send a notice to the other parent at the other parent’s last known address by registered or certified mail. Unless excused by the court for exigent circumstances, the notice shall be mailed not later than sixty (60) days prior to the move. The notice shall contain the following:
(1) Statement of intent to move;
(2) Location of proposed new residence;
(3) Reasons for proposed relocation; and
(4) Statement that the other parent may file a petition in opposition to the move within thirty(30) days of receipt of the notice.
(b) Unless the parents can agree on a new visitation schedule, the relocating parent shall file a petition seeking to alter visitation. The court shall consider all relevant factors, including those factors enumerated within subsection (d). The court shall also consider the availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent. The court shall assess the costs of transporting the child for visitation and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation.
(c) If the parents are actually spending substantially equal intervals of time with the child and the relocating parent seeks to move with the child, the other parent may, within thirty (30) days of receipt of notice, file a petition in opposition to removal of the child. No presumption in favor of or against the request to relocate with the child shall arise. The court shall determine whether or not to permit relocation of the child based upon the best interests of the child. The court shall consider all relevant factors including the following where applicable:
(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply
with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and child;
(4) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(5) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
(6) The stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; and
(11) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child.
(d) If the parents are not actually spending substantially equal intervals of time with the child and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:
(1) The relocation does not have a reasonable purpose;
(2) The relocation would pose a threat of specific and serious harm to the child which outweighs the threat of harm to the child of a change of custody; or
(3) The parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.
Specific and serious harm to the child includes, but is not limited to, the following:
(1) If a parent wishes to take a child with a serious medical problem to an area where no adequate treatment is readily available;
(2) If a parent wishes to take a child with specific educational requirements to an area with no acceptable education facilities;
(3) If a parent wishes to relocate and take up residence with a person with a history of child or domestic abuse or who is currently abusing alcohol or other drugs;
(4) If the child relies on the parent not relocating who provides emotional support, nurturing and development such that removal would result in severe emotional detriment to the child;
(5) If the custodial parent is emotionally disturbed or dependent such that the custodial parent is not capable of adequately parenting the child in the absence of support systems currently in place
in this state, and such support system is not available at the proposed relocation site; or
(6) If the proposed relocation is to a foreign country whose public policy does not normally
enforce the visitation rights of non-custodial parents, which does not have an adequately functioning
legal system or which otherwise presents a substantial risk of specific and serious harm to the child.
(e) If the court finds one (1) or more of the grounds designated in subsection (d), the court shall
determine whether or not to permit relocation of the child based on the best interest of the child. If
the court finds it is not in the best interests of the child to relocate as defined herein, but the parent
with whom the child resides the majority of the time elects to relocate, the court shall make a
custody determination and shall consider all relevant factors including the following where
applicable:
(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply
with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and child;
(4) The disposition of the parents to provide the child with food, clothing, medical care,
education and other necessary care and the degree to which a parent has been the primary caregiver;
(5) The importance of continuity in the child’s life and the length of time the child has lived in
a stable, satisfactory environment;
(6) The stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) The reasonable preference of the child if twelve (12) years of age or older. The court may
hear the preference of a younger child upon request. The preferences of older children should
normally be given greater weight than those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent or to any other
person; and
(11) The character and behavior of any other person who resides in or frequents the home of a
parent and such person’s interactions with the child.
The court shall consider the availability of alternative arrangements to foster and continue the
child’s relationship with and access to the other parent. The court shall assess the costs of
transporting the child for visitation, and determine whether a deviation from the child support
guidelines should be considered in light of all factors including, but not limited to, additional costs
incurred for transporting the child for visitation.
(f) Nothing in this section shall prohibit either parent from petitioning the court at any time to
address issues, (such as, but not limited to visitation), other than a change of custody related to the
move. In the event no petition in opposition to a proposed relocation is filed within thirty (30) days
of receipt of the notice, the parent proposing to relocate with the child shall be permitted to do so.
(g) It is the legislative intent that the gender of the parent who seeks to relocate for the reason of
career, educational, professional, or job opportunities, or otherwise, shall not be a factor in favor or
against the relocation of such parent with the child.

Divorce Deposition Overview with 15 hints

I am an attorney that practices law in Middle Tennessee. www.bestclarksvillelawyer.com.

In a divorce, one of the tools for discovery is the use of depositions.  When a lawyer deposes a witness, he or she is calling the witness to testify in the presence of a court reporter.  The witness is sworn in and is required to answer truthfully under oath.  The testimony given under oath can later be transcribed by the court reporter and turned into a written, word for word, document that can be used to later impeach the witness or for entry as evidence. If the case goes to trial and your testimony at trial differs from your deposition testimony, the deposition can be used by opposing counsel to cross-examine you.  Any part of your deposition or your spouse’s deposition can be read by opposing counsel at the final hearing.  Careful what you say. The court reporter is generally pretty pricey and can be a major expense depending on how long the deposition runs.

Many lawyers feel that in a simple divorce a deposition is too costly for its effectiveness.  Many times the lawyer can get most of the same information from the use of interrogatories or by calling other witnesses to impeach the opposing party.  When the client does not have a lot of money for attorney fees or for the court reporter, the lawyer may want to forego deposing the opposing party.

Generally, the deposition will be fairly anti-climactic.  For the most part, the lawyer will be trying to get the opposing party to lock in their answer.  This prevents some lying on the stand later at trial.  This is one of the main reasons that I personally like to do depositions in most of my cases.  The deposition allows me to get a good look at the others sides position for trial.  Although, obviously, my own deposition questions will key the other side to my defenses, themes and strategies.  For me, the benefits will outweigh most of the negatives.

The more issues in a divorce, the more likely that  you will need to have a deposition.

The deposition will start with the questioning lawyer running through a set of questions to determining the deposed parties ability to answer questions.  These will be standard questions related to truthfulness and ability to answer truthfully.

Then, the meat of the deposition will begin. Here are some helpful hints to remember prior to the deposition.

1. Review your case with your attorney prior to the deposition.  Review any case notes you have.

2. While being deposed, don’t worry if your attorney doesn’t object very much.  This is discovery and most of what is asked will be relevant and you will have to answer the questions.

3.  After the deposition, review the transcript and make corrections.

4.  Don’t be disappointed if your attorney does not ask questions.  The deposition is for the other side.  Remember, they want to catch you in a lie, nail down the facts and stick you to your statements.

5.  Your deposition will also help both sides for settlement purposes.

6. Remember if your facts or story changes later at trial, the other side is going to use the deposition against you.

7.  Tell the truth

8. Give straightforward answers.

9. Don’t evaluate your answers for trial.

10. Listen carefully and answer carefully.

11.  Take your time, remember you can tell your attorney you need a break or you can stop the deposition to talk to your attorney

12.  Speak deliberately and clearly for the record

13. Don’t guess and keep your testimony limited

14.  Do not joke with the other attorney, lose your temper or spar with the other attorney

15.  Dress appropriately in casual business dress.

Online Divorce Packets in Tennessee

I am an attorney that practices law in Middle Tennessee. www.bestclarksvillelawyer.com.  I start every blog on divorce with this disclaimer: Nothing in this blog constitutes establishing an attorney-client relationship.  Also, this blog is general advice and commentary and should not be construed as a substitute for either the need for getting specific advice from a lawyer or from hiring a lawyer.  In Tennessee, most divorces are complex and require the hiring of a lawyer.

From my initial disclaimer, you can probably tell that I am generally pretty wary of recommending that people do their own divorces in Tennessee.  Tennessee is a state that generally has fairly complex divorce proceedings procedurally. However, the Tennessee Supreme Court has a website and approved forms for those seeking to file their own divorce.  Check it out by clicking this link.

Some states, usually West Coast states, have check the block divorces.  This means that the average person who wants to get a divorce can get standard forms from the court in their state and fill out the forms, turn them in and get an uncontested divorce.  With a filing fee, and agreement between the parties, they generally do not need a lawyer and can get through the entire process, quickly and easily.

That is generally not the case in Tennessee.  The divorce process starts with a complaint for divorce.   The complaint is a document that had specific requirements set out by Tennessee Statue and to properly fill out the complaint requires either knowledge of the law or help from an online service.  Obviously, my recommendation is to use a lawyer, but when finances become a problem or the divorce is very simple, the parties my want to try and file the divorce pro se.

A pro se divorce is a divorce where the parties do the divorce themselves.  Generally, this is an uncontested divorce where the parties agree to the terms of the divorce.  As I have stated prior to this, an uncontested divorce requires a marital dissolution agreement, which is an agreement on how to divide marital property.  If there are children involved, the parties need to work out a parenting plan, which includes a schedule for visitation, designation of primary residential custodian, and child support.

In order to do the MDA and parenting plan without the help of the lawyer, the parties need to have some understanding of what a parenting plan and MDA look like.  As divorces become more expensive, online divorce services that create divorce packets for people will become much more prolific as time goes on.

The problem in Tennessee is that in order to get by a judge and have him grant an uncontested divorce it must meet his or her specific requirements.  Essentially, in Tennessee, the problem is that from County to County and Judge to Judge, the requirements for an uncontested divorce can be different.  In some counties, in order to get divorced, the parties have to testify as to grounds for divorce.  In other counties, there needs to be a Notice of Hearing to set the final hearing, but then the final decree is signed behind closed doors.  Some judges will allow a deviation in the child support guidelines and others will not.  Some judges are extremely lenient towards the pro se litigant, others are not.

This diversity in Counties, Courts and Judges creates a mine field when a person attempts to go online and buy a generic online divorce packet.  So, if you decide you are going to try to do your divorce by yourself, be very careful.  Call the local court clerk and see if they will give some advice on what exactly you will need to do.

The major pitfall that happens here in Montgomery County on a pro se divorce is that the parties do not know how to do the child support calculation.  They will file all of the paperwork and forget to do a child support worksheet or they will make an agreement that does not include child support.

Divorce Defaults

I am an attorney that practices law in Middle Tennessee. www.jamesphillipslaw.com.  If you need self-help legal, go to invisiblelawyer.com.

Many of my clients are very concerned about the length of time that it takes to get a default judgment. They see this as the quickest and easiest ways to get rid of a troublesome spouse.  In a divorce, a complaint is filed with the court.  After the complaint is filed, the complaint must be “served” on the defendant spouse.  This can be accomplished in a variety of ways, but basically what this means is that the complaint for divorce must reach the hands of the defendant.  Once the defendant has the complaint, they have thirty days to respond or they are subject to a default judgment.

The default judgment can be both a good and bad thing.  In Tennessee, default judgments are looked upon by the Courts with disfavor.  This means the preferred method of resolving cases is that they are either settled through agreement by the parties or they are litigated in front of a judge who will render a final decision.  Because of this, many default judgments are thrown out by the opposing party getting an attorney and filing a rule 59 or rule 60 motion to set the final decree aside.

A default judgment in my county, Montgomery County, is a pretty easy thing to get.  If the defendant does not show up, the court has a hearing where the plaintiff, my client, will testify to the basic correctness of the complaint and establish fault.  The plaintiff will bring two witnesses who testify to the truth-fullness of character of my client and after they ask the court for what they want and establish the fault, the hearing is over and the divorce is granted.

This may not go so well if the other party shows up to contest the default.  Although I have seen judges go forward and grant the default judgment even if the opposing party arrives at the hearing, generally, they will stop the default and give the opposing party a week or so to file their response to the original complaint.   If an attorney is hired, they can whip up a response to a complaint in just a few minutes to defeat the default.

Also, when I am getting a default judgment for my client, I always suggest that they not try to bury the other party.  I will usually suggest that the Parenting Plan is fair and would not seem overly coercive.  This is because even in a default judgment the Judge has a requirement to keep the best interest of the children in the forefront.  Also, any request for alimony or a complete grant of all property can be looked upon with disfavor from the Judge.  The judge may not feel that they can make this kind of ruling without the other party being there.

All in all, a default can be a quick and efficient way to get a final decree in a Tennessee divorce.  The problem is that they are still subject to attack later.  They can be defeated at a hearing on the cause and they do not grant the complainaint everything they might otherwise get at a contested divorce trial.

Visitation Issues in Divorce

During a divorce, if the parties have children, visitation will generally be an issue.  Obviously there is less of an issue when the divorce is uncontested than when it is contested.   The best plan for the kids is almost always to have the two parents come to some kind of agreement.  Regarldless of whether or not the parents can agree on whether or not they can live together, they should spend some time and think about how to best resolve the visitation for the benefit of the kids.

In a divorce case, there are generally four different ways that visitation is established: (1) by agreement of the parties, without any signed or written court order; (2) an agreed order, signed by the presiding judge; (3) an agreement worked out at mediation and held until the final hearing; and (4) a contested hearing on a motion for visitation which results in court ordered visitation from the judge.

If the mother and father are going to come to an agreement, the best idea is to look at the best interests of the children. The best type of plan will maximize each parent’s time, creating quality time with the children.  Kids are busy these days and parents need to work out a plan that considers school, outside activities, day care, vacation, sports, church, etc. Also, remember, teenagers may prefer to spend a good deal of their time with their friends rather than the parents.

Typically, in Tennessee, the parenting plans are alternating weekends for the day to day schedule.  Sometimes, the non-residential parent will also have an alternating week where one of the weekday evenings is spent with the children.  Six weeks of visitation in the summer is typical, with the parents creating some clause to allow for each parent to be able to spend an extended holiday with the kids.  The major holdiays are alternated.

Sometimes  you need to be careful what you wish for.  I have had parents complain that the were not getting enought visitation.  They say that the other parent is denying them visitation.  Then, we go into court and set up a system for monitoring the visitation and find out that it is my client that is not exercising the visitation.  Now, the problem becomes that the judge will punish that parent for wasting the court’s time when they aren’t really going to follow the plan.

Divorce in Tennessee

I am an attorney that practices law in Middle Tennessee. www.jamesphillipslaw.com.  I start every blog on divorce with this disclaimer: Nothing in this blog constitutes establishing an attorney-client relationship.  Also, this blog is general advice and commentary and should not be construed as a substitute for either the need for getting specific advice from a lawyer or from hiring a lawyer.  In Tennessee, Divorces are complex and require the hiring of a lawyer.

There are two types of divorce in Tennessee.  Essentially, the common usage is “uncontested” and “contested” divorces.  What this really means is this: (1) an uncontested divorce is based on irreconciliable divorces, which essentially means the parties agree that they will no longer be able to stay married; and (2) a contested divorce is based on fault based grounds, which means that somebody done somebody wrong.

Ok, what does this really mean? 

An uncontested divorce is basically a divorce by agreement.  The essential requirement for an uncontested divorce is that the parties (husband and wife) have an ability to agree on the division of their stuff.  Basically, they have to split money, accounts, cars, retirement, houses, alimony, taxes.  Everything that the parties have acquired together; operative word together, during the time they have married is up for grabs and can be equitably divided.  Now, the division of marital property has some caveats.  If a party owned something before the marriage, it may not be divisible because it is separate property.

Once the parties can has out an agreement, they will then document this agreement in the form of a Marital Dissolution Agreement (MDA).  This agreement has some specific requirements and generally must comply with the rules established by each local court in each Tennessee County.

If children are involved, then for the divorce to be uncontested, the parents will have to agree on a parenting plan.  In Tennessee, a parenting plan consists of several things: a day to day schedule for visitation, a holiday schedule (major holidays, summer, spring, fall and winter break), a determination of financial requirements through child support, life insurance and health care, and also a division of the tax credit.  The parenting plan is usually very specific and is designed for the time when the parents may have a dispute.  The parenting plan is a guide to fall back on, but does not necessarilly have to be the rule.

Once these two documents are completed and the statutory waiting period has ended, the parties can be divorced.  This is done through a final decree and notice of hearing.

The main thing to remember is that an uncontested divorce requires the agreement of the parties.

If the parties can’t agree, the divorce becomes contested.  This is usually a knock down drag out fight.  The pattern in a contested divorce normally involves these parts: (1) filing of a contested complaint, (2) motions involving support, paternity, possession of the home, custody etc, (3) mediation, (4) interrogatories, (4) depositions, (5) trial preparation, (5) trial brief and (6) trial.  Some time there will also be a requirement for a forensic accounting if there is a dispute over where all the money has gone.

Generally, the filing of the divorce complaint begins the process.  In a contested divorce fault-based grounds will be alleged and the other party will need to be served the paperwork.  What this means is that a process server, postal worker or sherrif will need to get the paperwork into the other party’s hands.  Once this is done, they have thirty days to respond to the paperwork.  After thirty days, if there is not response, the filing party may fiile a motion for default. 

If the party responds with an answer and “counter-complaint,” then the original filing party must file an answer to the new filings.  At this point, generally it is on like donkey-kong.

Most of the the time the next thing that happens is the filing of motions.  These are requests to the court for relief.  The requests are asking for the Court to do something of a temporary nature to set the terms of how the couple is to live until the final decree.  For example, many times one party or the other will file a Motion to Set Support. This can be in the form of Alimony or Child Support or Both. Once the Court orders support, the order will normally last until the final hearing and is not meant to be ongoing beyond that.

Mediation is also becoming a necessity.  Mediation is designed to get the parties to resolve the divorce through the use of an neutral attorney or a Rule 31 mediator.  Mediation can be done with or without the participation of the party’s attorney.  Generally, what takes place is that the parties sit down in one room and try to hash out the terms of the divorce.  The goal here, once again, is to create a Marital Dissolution Agreement and Parenting Plan (see uncontested divorce).  If the party’s can’t come up with a complete agreement, many times it is helpful if they just agree on parts of the divorce.

Interrogatories are also normally filed.  These are written questions to the other side that are required to be answered as part of the discovery.  They are sworn to and must be answered truthfully.  As part of the interrogatories, there is a request for production of documents.  This also each side to flesh out their file and get anything that they may need for trial.

After the interrogatories are returned, the lawyers may want to schedule depositions.  Depositions are conducted with a court-reporter present.  This is a question and answer session where the lawyer can ask questions of your spouse and have the answers recorded.  The answers are under oath and lying in a depostion is perjury.  The court reporter is expensive and charges for each page of the transcript, so sometimes clients who don’t have a lot of money to spend on a divorce may want to forgo the depositions unless they believe they are a vital part of the discovery proceedings.

Trial preparation will require preparation of witnesses, filing of trial briefs, preparation of evidence for the court and preparation of the client.  This is done after the evidence is gathered through discovery and will follow the rules of the local court.

A divorce trial can be disappointing for the client.  Many times clients are more concerned with vindication and justice than they are with the distribution of their assets.  The judge is generally less interested in sorting out the fault than he or she is in splitting the parties’ stuff and creating a parenting plan that is in the best interest of the child.

What the judge wants is what is going to happen in trial, so for the most part, the lawyers will spend a limited amount of time having clients and witnesses testify about adultery, abuse, etc.  The real crux of the argument will be on issues such as equitable division of property, custody of the kids, alimony, attorney fees, and the granting of the divorce.

Once the judge rules, the Court will put out an order that outlines all of the issues that were brought up in the final hearing.  This order becomes final and the parties are divorced.

If one side or the other disagrees with the ruling, the have a limited amounted of time to appeal and may go to the next higher court to ask that court to grant relief.

Also, later on down the line, as things change, one party or the other may want to reopen the divorce to have the judge review some or all of the determinations.

In my experience, a contested divorce should never be handled pro se in Tennessee.  Pro se is when a client represents themselves.  There are just too many issues and a divorce in Tennessee can be too complex for a client to represent themselves.  They will be at a serious disadvantage in front of the judge.

I hope this helps.  If you need an appointment, www.jamesphillipslaw.com.