New Tennessee Post-Divorce Relocation Ruling

By | Divorce

New Tennessee Post-Divorce Relocation Ruling

Reasonable Purpose Definition Clarified

On March 16, 2017, the Tennessee Supreme Court ruled that the term “reasonable purpose” for relocation disputes doesn’t require a showing of a “significant purpose” or “substantial purpose.” What does this mean in practice?

CASE FACTS

This case involves an ex-husband and ex-wife who had two children with equal parenting time. However, Mother traveled internationally for work. Mother claims she sacrificed her parenting time for the financial benefit of the children until Father could finish schooling to obtain a more lucrative job here in Tennessee.

Father eventually was offered a lucrative position out of state where his family and some of Mother’s extended family resided. Mother opposed the relocation with the child.

Mother claimed the father produced no proof that he attempted to get a substantially equivalent paying job here in Tennessee. She argued the purpose for the move was not significant or substantial.

To summarize the case, the Supreme Court said the question of whether Father’s relocation was for a “reasonable purpose” is NOT to be used as a guise by the trial court to determine whether the Father’s decision to relocate is wise or fair to the mother or in the child’s best interest. The trial court must follow the statute which simply requires the requested move be for a “reasonable purpose” as construed in an ordinary meaning.

The Tennessee Supreme Court found that Mother put on virtually no evidence that the purpose for the proposed relocation was not a reasonable one. The best interest of the child is considered ONLY if the parent opposing the relocation proves one of the three statutory reasons, including it not being a reasonable purpose (see details on statute below).

Reasonable Purpose

What’s the take away from this case?

Parenting Time

(Click Here)

Make sure you exercise your “equal parenting time.” The court looked at what was actually taking place and not what was previously agreed to and ordered.

Burden Of Proof

(Click Here)

Make sure you hire an attorney who understands the ACTUAL and EXACT BURDENS OF PROOF in these types of cases and how it shifts.

Judicial Discretion

(Click Here)

Trial judges can no longer exercise moral or equitable control over the relocation situation. Its simply a question of whether the relocation request is reasonable. You will want an experienced attorney representing you to enforce this, respectfully, as informing a Judge of limitations to their powers is a delicate art.

Need to Talk?

If you have a post-divorce issue, contact Sam Cross, Franklin TN Divorce Attorney today. Its important you hire an attorney who knows and keeps up with the law to best exercise and defend your legal rights. Schedule your free thirty (30) minute initial consultation to discuss your situation with no obligation.

If you are interested in more details regarding this case, I have provided extended details below.

The Tennessee Parental Relocation statute provides:

(a) If a parent who is spending intervals of time with a child desires to relocate outside of 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 petitition in opposition to move within thirty (30) days of receipt of the notice.

If the parents are not spending substantially equal intervals of residential parenting time with the child, the statute provides the following framework for resolving the dispute:

(d)(1) 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:

(A) The relocation does not have a reasonable purpose;

(B) The relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or

(C) 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.

This means that a parent spending the greater amount of residential parenting time with the child who seeks to relocate “shall be permitted” to do so unless the parent opposing the move proves at least one of the previously mentioned three grounds. Two of these are a no brainer. The one that is commonly disputed is whether the relocation is for a “reasonable purpose.”

Without getting into the legal case law details, over time Tennessee courts have, in practice, required the moving parent to show the relocation is substantiated by a “significant” or “substantial” purpose after the other parent has called the reasonableness into question. The Tennessee Supreme Court has clarified and removed that from consideration.

This case ultimately binds judges to stick to the ordinary meaning of “reasonable” in granting relocation requests. This is why it is imperative that you hire an attorney who knows how to properly structure your case and argument before the Judge so as not to have your argument cutoff before it begins.

Estate Planning For Second Marriages

By | Do I Need A Will?

 Estate Planning For Second Marriages

Do I Need A Will? Blog Series

Believe it or not, estate planning involves…. planning. Remarriage is one factor that any good estate plan accounts for.

  • Currently remarried
  • Considering remarrying
  • Possible Remarriage after Spouse’s Death
  • Possible Remarriage after Divorce

Estate Planning for Second Marriages is a topic that can impact everyone and should be a priority in your estate planning. I have created an example below that demonstrates a common problem created without proper estate planning. Tennessee Estate planning and Tennessee Wills should be carefully crafted

To better avoid these pitfalls, contact Sam Cross Law, a Franklin TN Estate Planning Attorney, to discuss scheduling a free initial thirty (30) minute consultation. The free initial consultation allows us to simply talk about your situation, concerns, and goals and discuss potential solutions. You are under no obligation or cost in the initial interview.

Meet Dave and Wendy. They have two (2) children, Diana and Doug.

Dave and Wendy have done their estate planning themselves (online). They named each other (spouses) as the primary beneficiary in their estate planning and their children (Diana and Doug) as alternate beneficiaries should their spouse predecease them. Simple enough, right?

Regrettably, Dave passes away. Dave’s inheritance passes to Wendy. Wendy mourns Dave’s death and thinks she will never love again. A few years later, Wendy meets Richard. Richard is a widow (Holly) and has two children of his own (Henry & Heather).

Wendy and Richard eventually fall for one another.  Wendy and Richard remarry.

Richard and Wendy have a child of their own together, Ryan.

Wendy dies in a car accident when the children are all grown. Her inheritance goes to Richard because he is her spouse.

Do you see the problems? Lets take a look:

  • Wendy has given her and Dave’s estate to Richard.
  • Richard named his “children” as heirs.
  • Richard has not adopted Diana and Doug
  • There is a real danger Wendy unintentionally disinherited Diana and Doug because they are not the legal children of Richard.
  • Ryan, Henry and Heather inherit from Richard when he dies.
  • Dave never intended to share Diana and Doug’s inheritance with Richard, Ryan, Henry and Heather.

There are several other ways this could have been caused and how it could have played out. Richard could exclude them intentionally (as opposed to the unintentional example) after Wendy dies to prioritize his children (Ryan, Henry and Heather).

Regardless, they are all undesirable results for Dave and Wendy that could have been avoided.

Let’s say instead Dave created a trust. That trust could be structured multiple ways. The goal, however, is to make sure Dave’s inheritance gets to where he intended it to be.

For example, the trust could be structured to distribute a portion of the interest income generated from the trust to be distributed among Wendy, Diana and Doug for the life of Wendy and eventually distributed to Diana and Doug after they reach an age of majority and Wendy passes. With this, Dave can rest in peace knowing his goals will be carried out.

Once Wendy dies, any inheritance she has will go to her trust wherein she can make sure Diana, Doug and Ryan are taken care of. She may also choose to add Richard, Henry and Heather as beneficiaries of the trust if she so chooses.

Regardless, Diana and Doug already are guaranteed an inheritance through the trust their father, Dave, left and will also share in the inheritance left by their mother, Wendy.

A little planning goes a long way. Your passing will be difficult enough for the one’s you love, there is no need to leave them with an avoidable legal burden that can result in unintended and permanent results. Call Sam Cross, Franklin TN Estate Planning Attorney today to discuss scheduling a free initial consultation with no obligation.

Icons used in the creation of this post made by Eucalyp at Flaticon.
(C) Sam Cross Law, All Rights Reserved. Images created and used in this post may not be used without owner’s permission.
Family Law and Divorce

6 Ways To Protect Your New Family

By | Do I Need A Will?

6 Ways To Protect Your New Family

Do I Need A Will? Blog Series

When we love something, our instinct is to protect it. As soon as a baby becomes part of your life, your once strongest instinct of self-preservation is suddenly dwarfed by the need to protect and love this new life.

I remember holding my daughter for the first time after delivery. There are no words for the immeasurable joy I felt in that moment. Soon thereafter, my joy was matched by an instinctive drive to ensure her happiness and safety. Was the room too cold, too bright, too loud? Were the nurses gentle enough with her? I wanted to be there every moment to protect her.

Making the decision to have a child is momentous. It is to decide forever to have your heart go walking around outside your body.
-Elizabeth Stone

It can be difficult to trust others with our children. Whether it is their first day of daycare, kindergarten, or college… you will always want to make sure your child is cared for. But what if you are not present to care for your child? No parent wants to imagine a world where they are not there to raise their child, but we have a responsibility to protect our children, even when we cannot be there. Estate planning is like getting a shot at the Doctor’s office. You may build up anxiety in anticipation of the topic and try to avoid it, but you will discover peace of mind after putting a solid plan in place.

Six Ways To Protect Your New Family

Guardian

Who will take care of your new baby if you are gone?

If you don’t nominate one formally in a will, the court can make that decision for you (even if it’s not one you would have wanted). Who is best suited to step in as parent for your child if you are gone? Are they mature enough to take over if you were gone tomorrow? Do they have the stamina to raise another child for the next eighteen (18) plus years? There are serious questions you need to consider before making your choice for guardians.

Life Insurance

How will you provide for your family when you are gone?

Many get life insurance when they are married or before buying a home and name their spouse as primary beneficiary. While important when married or buying a home, life insurance is essential when starting a family. Although the Life Insurance passes outside of your will, you will want to consult with an attorney to make sure you have properly structured your beneficiary allocation.

Trusts

How will you protect your baby’s inheritance?

There are many kinds of trusts but it is essentially a tool for you, the parent, to protect your child’s inheritance without (for the most part) going through the probate process. It lays out who gets what, what age they get it, and what expenses can be made by the trustee until your child reaches that age. It is a very powerful tool with any estate plan.

Power of Attorney

Who will pay your bills and financial affairs if you are unable or gone?

What if, God forbid, you are rendered severely limited in function or even disabled? Your bills and financial responsibilities will still come due, regardless of your condition. A durable power of attorney, when properly drafted, is an invaluable benefit to make sure everything continues as it should. When drafted poorly, too much or too little financial power being granted to someone else resulting in devastating consequences.

Living Will

Who will make healthcare decisions for you when you cannot?

Making medical decisions for another life can be a burden. Without authority to make decisions, loved ones feel helpless in an already emotionally dire situation. Without instruction on what decisions to make, loved ones can feel tremendous pressure on what the “right” decision is and whether they made the right decision for years to come. A living will, advance directive and health care power of attorney provide tremendous benefits in avoiding these situations.

College Savings

How can my child afford college?

Every parent wants their child to have the opportunity for higher education. As college tuitions continue to rise, planning for those costs in advance is critical. Whether it’s a 529 Plan, a Tennessee Uniform Transfer to Minors Account, or some other investment tool… you need to plan ahead. (Note that all of these investment mechanisms have pros and cons and you will need to discuss your goals with a professional before deciding which is right for you).

Conclusion

Your instinct to protect your baby never ends. Your journey as parents is unknown. As with every journey, a plan is needed should you and your baby become separated along the way. As responsible parents, it is our job to protect our children… even when we can’t necessarily be there to do so.

Contact our office to discuss a free initial consultation. Sam Cross Law offers Franklin TN Estate Planning services. Whether you need to create or revise a Will, Trust, Living Will or Power of attorney, Sam Cross is prepared to help you accomplish your estate planning goals and bring you peace of mind.

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Can I Make A Will Online?

By | Do I Need A Will?

Do I Need A Will Blog Series

Can I Make A Will Online?

PERMITTED

Attorney

Yourself (Holographic)

Online Form

RECOMMENDED

Attorney

Yourself (Holographic)

Online Form

A Will Is A Legal Document

The most basic estate planning for a family or individual revolves around obtaining a will, a living will (also known as an advance directive), and a durable power of attorney. These documents are, unequivocally, legal documents. That means they should require legal advice. They guide, guard and grant legal powers from you to others.

One of the most important common aspects to these three legal documents is that they speak for you when you are unable to do so. Right or wrong, understood or misinterpreted… these documents cradle precious legal rights, powers and wishes in your most vital moments for your most important decisions.

Do Online Forms Replace Attorneys?

The idea is simple… can’t someone just fill in a blank boilerplate form for simple wills? The answer is of course you can. You can also choose to operate on yourself rather than go to a hospital. Just be cause you can do something doesn’t mean you should.

Two of the most prominent legal form websites are Legal Zoom and Willing. Both make claims that you are being guided by “world class experts,” “legal research on every state” and that their boilerplate document is “personalized for you.” The problem is both Legal Zoom and Willing expressly state that they are not giving you legal advice or legal research for that legal document.

Legal Zoom has even displayed on their website that eighty percent (80%) of people who fill in blank forms to create legal documents do so incorrectly. I don’t know where that statistic comes from or whether it is precise, but it is fascinating that Legal Zoom essentially tells its customers they have a twenty percent (20%) chance of success:

I was at lunch with a friend and we were discussing IBM’s announcement of ROSS, its artificially intelligent attorney. The conversation led to our thoughts towards online form websites like Legal Zoom and Willing. After discussing the issue, we both similarly experienced that these online services end up creating much more work for attorneys that is sometimes irreparable.

A False Sense Of Security

The worst aspect to these services is that they provide a false sense of security. Your love ones already must bear the emotional weight and difficulty of your incapacitation or death. Worst of all is you will never know because you will have passed away when these issues arise.

Your will is your final instructions to and for your property, children and heirs. Your living will is testament to what you would want done or who you would want making decisions when your life lay in the balance and you can’t make the decisions for yourself. Your durable power of attorney gives someone control, more or less, to make general decisions over your property and finances for you. All three of these documents are to speak for themselves.

For example, many second marriages with unrevised or no estate planning often can result in a children from the first marriage to be disinherited entirely. Even if the first child or children proclaim how much the parent loved them and would never have intended such a thing… the will speaks for itself. Errors like this happen all the time if not properly reviewed. Ironically, the cost in litigating these disputes is exponentially greater than had they simply taken a nominal effort more to meet with an attorney and catch common mistakes.

This blog entry is the first of other topics on wills which will include particular times or events in life where it is critical you have a will or have your will updated. Topics such as the aforementioned second marriage is one of those pivotal times to have your will and other legal documents evaluated.

What About Cost?

A will can cost anywhere from nothing (get to writing on that pencil and paper) to hundreds of thousands of dollars. What’s attractive about these online boilerplate crapshoots is the low flat price. When you break it down, however, its appropriate that it cost so little because they aren’t actually providing you any advice or making sure everything is done properly with no remote indication of success.

Sam Cross Law: Franklin TN Will

I cannot speak for other attorneys or their pricing structure. At Sam Cross Law, I arrange a free initial consultation for up to thirty (30) minutes. In that thirty (30) minutes you and I can get to know one another. I’ll ask you about your goals, assets, and concerns and evaluate the requisite level of work to accomplish what we’ve discussed. For example, if you are a sole or controlling member of numerous LLCs and Corporations with numerous property interests, then the requisite level of work for you is vastly different than a young couple starting out in need of a simple will to protect a newborn baby.

The important part is that you and I can get to know one another at no obligation in that initial consultation. If you want to move forward and sign a client agreement and become a client of this firm… great! If you just feel overwhelmed and want to learn more before making a decision, then that’s great too! Honestly the fact that you are taking proactive steps to learn about getting a will means you care, which is always great.

Conclusion

Make sure the decision you make is an informed one (if you’ve read this blog then clearly you are driven enough to inform yourself before making a decision). You may contact my office to inquire about scheduling a free initial consultation up to thirty (30) minutes where you and I can get to know each other, your goals, your assets and your concerns. If you wish to proceed with my office after that meeting, we can move on towards the signing of an attorney-client agreement to get started. If you feel after that meeting you are capable of creating a legally valid and accurate will, living will, and durable power of attorney… then you can absolutely do so. This blog does not offer legal advice or create an attorney-client relationship. It does, I hope, provide you a starting point towards deciding how to make sure your wishes are carried out correctly and with no additional stress when you are unable to do so.

Call Sam Cross Law today at 615.669.7410 to inquire about scheduling a free thirty (30) minute initial consultation at our Franklin TN office. There is no obligation and we look forward to hearing from you.

Sam Cross Law, Field Sobriety Test

Labor Day Weekend DUI Checkpoints in Williamson County

By | DUI, Rules of the Road, Search and Seizures
 

DUI

Driving Under the Influence

LABOR DAY WEEKEND 2015 DUI Checkpoints & Roadblocks In Williamson County, Tennessee

There will be DUI Checkpoints as Follows:

09/03/15  8:00 p.m. to 10 p.m.                         Goose Creek Bypass

09/04/15  11 p.m. to 1 a.m.           Highway 31/41 (Columbia Ave.)

09/12/15  8 p.m. to 10 p.m.                                                Wilson Pike

09/19/15   11 p.m. to 1 a.m.                                     Carothers Parkway

For More Information:

http://www.brentwoodhomepage.com/dui-checkpoints-announced-for-labor-day-holiday-cms-22734#.VepCXxG6dhE

Please do not drink and drive. Below you can find general information with regard to DUI Checkpoints.

Tennessee DUI Checkpoints And Roadblocks

Don’t Drink and Drive

First, the safest bet for your safety and the safety of the public at large is to not drink and drive. Try to plan ahead and arrange your driving situation. However, anyone can have a few to many to drink and still find themselves behind the wheel. If  you have been pulled over for D.U.I., contact our office today for a free initial consultation.

TAKE OUR TRAFFIC STOP QUIZ AND SEE HOW YOU DO!

Are DUI Checkpoints legal?

If you drink and drive, you could run into a Road Block or DUI Checkpoint. Tennessee laws on DUI checkpoints allow police to create road blocks and checkpoints to check drivers for DUI. However, there are certain criteria that must be met to have a valid sobriety checkpoint.

Constitutionality of seizures depends on:

  1. The public interest served by the seizure;
  2. The degree to which the seizure advances that public interest; and
  3. The severity of the interference with an individual’s liberty.

Tennessee courts have concluded the State has a compelling interest in alleviating drunk driving and that sobriety checkpoints are effective tools for detecting impaired drivers.

What can police do at a DUI checkpoint?

There are two mandatory requirements police must follow for a DUI checkpoint to be legal:

  1. The decision to set up the roadblock in the first instance cannot have been made by the officer or officers actually establishing the roadblock; and
  2. The officers on the scene cannot decide for themselves the procedures to be used in operating the roadblock.

The police are also required to have standard operating procedures established for the D.U.I. checkpoint and exercise as little to no discretion. Officers will make their presence clear in the area and, when stopped, will ask you if you have been drinking, and will be looking for the following factors:

  • Odor of Alcoholic Beverages or other drugs
  • Blood Shot Eyes, Slurred Speech, Inconsistent Responses, Fumbling Fingers, etc.
  • ADMISSIONS (please remain silent, admissions, big or small, can ruin your case)
  • Asking “Divided-Attention Questions” (requiring you to do two things at once)
    • e.g. Asking for your Drivers License and Registration.
    • Standard Field Sobriety Tests (SFSTs).

If the officer asks you to step out of the vehicle or pull over to a side area, at that point you have raised the officers suspicion and you need to remain silent. You have the right to remain silent and not incriminate yourself.

Sam Cross, DUI Attorney

If you are not free to leave, then you are being detained or you are under arrest. If you are being charged with Driving Under the Influence, tell the officer you want an attorney and remain silent.

Call Sam Cross, a Franklin DUI Attorney, today to arrange a free initial consultation.

(615) 669-7410 

Tennessee Drone Laws

By | Criminal Defense

Your Tennessee Drone Could Land You In Jail

2015 Tennessee Drone Laws And Drones

The Tennessee Legislature passed a law that went into effect today, July 1, 2015 that makes a video or audio recording that captures real property (house, land, etc) or individuals for the purpose of “surveillance” a crime.

It is now a Class C Misdemeanor punishable by up to thirty (30) days in jail if a person:

Law

“Uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image…”
T.C.A. § 39-13-903

So your flying drone camera could land you in jail. The problem is the drafter of the Tennessee law failed to define “surveillance.” As Representative Vance Davis articulated before the law was passed, he asked the distinction between how the picture was taken with an example of being on the ground, roof, and using a drone flying over your property to take a picture of a neighbors yard.

Representative Vance Davis agreed that the bill has the right intentions, but due to it poorly being written, it goes “ten steps beyond.” The intent of the bill was to protect individual’s right to privacy, but has now been so vaguely written that anyone with a Quad Copter Drone that takes pictures or records video could arguably be committing a criminal offense.

Surveillance

Tennessee Legislature Failed To Define Surveillance

Below is an excellent video captured in Franklin Tennessee showing a scenic view of surrounding properties in the process. While the Tennessee Legislature failed to legally define and limit the term “surveillance”, Webster’s definition of “surveillance” demonstrates how vague the word can be:

“The act of carefully watching someone or something…”

Have Fun. Be Smart. Be Safe.

Don’t worry, this video was taken before the law came into effect, but this is just one example of how poorly worded laws can create unnecessary problems and confusion.

Is anyone likely to be cited for this unless they are harassing or stalking neighbors? Probably not, but the vagueness of the new law arguably criminalizes activities that should not be criminalized.

Will the legislature fix the statute by properly defining “surveillance”? Hopefully. But not until next legislative session which would go into effect July 1, 2016. Until then, If you have neighbors that dislike you or your drone, be careful as they can now possibly seek criminal charges…

Make sure you review both FAA and Tennessee guidelines before proceeding to enjoy filming with your zone. Speak with your insurance agent regarding a policy to cover instances where your drone may crash and damage property or injure a third-party.