Blog - Page 4 of 7

Small Claims Court

Written by Webmaster on February 23, 2017. Posted in Kane & Crowell Blog.

We hear this term all the time. When people use this term, most are talking about General Sessions Court. That is the Court where you can handle most civil legal matters that do not exceed $25,000.00 in damages. From collections to evictions to contractor disputes, this is where many cases begin.

Some people represent themselves in General Sessions Court but most have attorneys to not only help them present their case but also to handle the appeals that often follow judgments from this Court. No judgment is final in General Sessions Court for 10 days. And in those 10 days, you can appeal your ruling to a higher court and the entire case is heard again by a different Judge.

The legal process can be very quick in General Sessions Court. You can file your lawsuit and often, within a month or two, the trial is over and you have your judgment. Once you have the judgment though, you still have to collect.

Our office can help you do this by garnishing wages and bank accounts, helping physically remove a tenant from your premises with a writ of execution or handling a subpoena in aid of judgment where the Defendant is called into Court to determine where his assets are so that you can then collect your judgment.

And if they do appeal the lower Court’s ruling, then the case will be reheard in Circuit Court from beginning to end and we can help you navigate that process as well.

Our Courts can seem daunting to those who don’t understand all the technicalities and the processes involved. We are in Court daily and know the laws and how things work. If we can help you in anyway, give us a call and we will be glad to answer your questions and guide you to a successful outcome.

General Sessions Court, Not Exceeding $25, Small Claims Court

Can I have my Marriage Annulled?

Written by Amanda Crowell on February 14, 2017. Posted in Amanda Crowell's Blog, Kane & Crowell Blog.

I am frequently contacted by potential clients who tell me that they have only been married for a short period – maybe a few days or a few weeks. They do not want to have to go through the divorce process and wonder if they can have their marriage annulled instead.

The answer depends upon whether you have grounds for an annulment. Those grounds have nothing to do with the length of the marriage. If a marriage is annulled, it means that because of some defect, no valid marriage ever occurred between the parties. There is one ground for annulment in Tennessee law. If either of the parties is under the age of 16 years, the marriage may be annulled by one of the parties or by any interested person acting on his or her behalf. (T.C.A. 36-3-105.) Otherwise, annulment is based upon equity, and the Chancery Court has inherent jurisdiction. The grounds upon which Chancery Court could declare a marriage to be annulled are the following:

1) Prior existing marriage. State law requires that a party be married to only one person.

2) Violation of statute. Parties must follow the mandatory provisions of the Marriage Act set forth in T.C.A. 36-3-306 pertaining to a marriage license, ceremony, etc.

3) Denial of Marital Rights. Parties must consummate the marriage and cohabitate unless otherwise agreed between the parties. One party may not have a secret intention to create a sham with the marriage.

4) Mental Capacity. Both parties must be able to form the requisite intent to consent to the marriage.

5) Impotency. This is defined as the inability to consummate the marriage which existed prior to the marriage and which is permanent, incurable, or the party refuses to submit to treatment.

6) Duress. This is coercion which renders the party incapable of freely consenting to the marriage. It may be by force, restraint or threat.

7) Fraud. The fraud must have been calculated to induce the marriage, and the innocent party must have relied upon such inducement.

If you believe you have grounds for annulment, it is important to speak with an attorney who can examine the facts of your case and determine if an annulment is appropriate in your situation.

Amanda Crowell Attorney, Marriage Annulment, Married for Short Period

Orders of Protection in Tennessee

Written by Webmaster on January 7, 2017. Posted in Kane & Crowell Blog.

This is an overview of the court process for an order of protection hearing in Tennessee. For a little bit of background, I have been hired to represent clients in pursuing a petition for an order of protection as well as defending clients against a petition for an order of protection. The person pursuing an order of protection is referred to as the petitioner. The person who the order of protection is against is referred to as the respondent. In Tennessee, orders of protection are granted for three (3) specific grounds. Those grounds are when the petitioner is alleging that they are the victim of domestic abuse, sexual assault, and or stalking. The statute defines domestic abuse as a person who has one of the following relationships:

Domestic abuse victim” means any person who falls within the following categories:

• (A) Adults or minors who are current or former spouses;

• (B) Adults or minors who live together or who have lived together;

• (C) Adults or minors who are dating or who have dated or who have or had a sexual relationship. As used herein, “dating” and “dated” do not include fraternization between two (2) individuals in a business or social context;

• (D) Adults or minors related by blood or adoption;

• (E) Adults or minors who are related or were formerly related by marriage; or

• (F) Adult or minor children of a person in a relationship that is described in subdivisions A-E.

TCA 36-6-601(5)(A-F).

The process is begun by any domestic abuse victim, stalking victim or sexual assault victim who has been subjected to, threatened with, or placed in fear of, domestic abuse, stalking, or sexual assault, by filing a sworn petition alleging domestic abuse, stalking, or sexual assault by the respondent. TCA 36-6-602. If a minor is the victim then a parent or guardian can sign the petition on behalf of the minor. The petition shall be filed in the county where the respondent resides or the county in which the domestic abuse, stalking or sexual assault occurred. If the respondent is not a resident of Tennessee, the petition may be filed in the county where the petitioner resides.

Once a petition has been filed for an order of protection there are two directions that the petition proceeds. The first path is that an ex parte order of protection or temporary order of protection is immediately put in place. The first instance that a temporary order of protection is put in place is when the respondent is arrested. A temporary order of protection shall be issued against a respondent pursuant to TCA § 36-3-605 if, at the respondent’s initial appearance following an arrest for a crime involving domestic abuse, the court finds there is probable cause to believe the respondent either:

(A) Caused serious bodily injury to the alleged domestic abuse victim; or

(B) Used or displayed a deadly weapon.

(2) The alleged domestic abuse victim does not need to be present at the time the temporary order of protection is issued.

(3) A hearing on whether the temporary order of protection should be dissolved, extended, or modified shall be held within fifteen (15) days of service of the temporary order of protection upon the respondent. The domestic abuse victim shall have the right to notice of the hearing and the right to be present at the hearing.

(4) The temporary order of protection may include any relief available under an ex parte order of protection issued pursuant to § 36-3-605.

The second instance a temporary order of protection is immediately put in place is through TCA §36-3-605. Upon the filing of a petition under this part, the courts may immediately, for good cause shown, issue an ex parte order of protection. An immediate and present danger of abuse to the petitioner shall constitute good cause for purposes of this section. Within fifteen (15) days of service of such order on the respondent under this part, a hearing shall be held, at which time the court shall either dissolve any ex parte order that has been issued, or shall, if the petitioner has proved the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, extend the order of protection for a definite period of time, not to exceed one (1) year.

The second path that a petition for an order of protection can follow is that the order is not immediately granted until a full hearing before the judge. After the initial filing of the petition (if not immediately granted temporarily), a hearing is set before a judge regarding the allegations of domestic abuse, sexual assault or stalking in the petition (no temporary order is in effect at that time). The judge, after hearing the proof, may decide to then grant the order of protection after the hearing or dismiss the petition.

Once an order of protection is granted the court can protect the petitioner/victim from domestic abuse, sexual assault or stalking, but is also permitted under TCA § 36-3-606 to make various other orders of the court. Those orders include, prohibiting the respondent from coming around the petitioner, prohibiting the respondent from threatening the petitioner, granting the petitioner the residence, directing the respondent to provide alternative housing for the petitioner when the respondent is the sole owner or lease or the residence, granting the petitioner temporary custody or establishing temporary visitation rights with regards to any minor children, directing the respondent to attend counseling, plus pay all court costs.

Within the time the order of protection is in effect, any court of competent jurisdiction may modify the order of protection, either upon the court’s own motion or upon motion of the petitioner. If an order of protection is ordered by a court and either the petitioner or respondent files a complaint for divorce, the order of protection shall remain in effect until the court in which the divorce action lies modifies or dissolves the order. If a respondent is found to be in violation of the order, the court may extend the order of protection up to five (5) years. If a respondent is found to be in a second or subsequent violation of the order, the court may extend the order of protection up to ten (10) years. Upon a violation of the order of protection, the court may hold the defendant in civil or criminal contempt and punish the defendant in accordance with the law.

The petitioner is not required to bear the costs of the issuance of an order or protection. This includes the filing fees, service fees and court costs associated with the petition. If the court, after the hearing on the petition, issues or extends an order of protection, all court costs, filing fees, litigation taxes and attorney fees shall be assessed against the respondent. However, if the court does not issue or extend an order of protection, the court may assess all court costs, filing fees, litigation taxes and attorney fees against the petitioner if the court makes the following finding by clear and convincing evidence:

• (A) The petitioner is not a domestic abuse victim, stalking victim or sexual assault victim and that such determination is not based on the fact that the petitioner requested that the petition be dismissed, failed to attend the hearing or incorrectly filled out the petition; and

• (B) The petitioner knew that the allegation of domestic abuse, stalking, or sexual assault was false at the time the petition was file.

TCA § 36-3-617.

Another outcome of having an order of protection granted is that the respondent must turn over any firearms that they possess. The respondent is required to dispossess themselves of all firearms while the order of protection is in effect. The respondent must sign an affidavit for the court of the dispossession of firearms.

Domestic abuse victim” means any person who falls within the following categories:

(A) Adults or minors who are current or former spouses;

(B) Adults or minors who live together or who have lived together;

(C) Adults or minors who are dating or who have dated or who have or had a sexual relationship. As used herein, “dating” and “dated” do not include fraternization between two (2) individuals in a business or social context;

(D) Adults or minors related by blood or adoption;

(E) Adults or minors who are related or were formerly related by marriage; or

(F) Adult or minor children of a person in a relationship that is described in subdivisions A-E.

TCA 36-6-601(5)(A-F).

Once a petition has been filed for an order of protection there are two directions that the petition proceeds. The first path is that an ex parte order of protection or temporary order of protection is immediately put in place. The first instance that a temporary order of protection is put in place is when the respondent is arrested. A temporary order of protection shall be issued against a respondent pursuant to TCA § 36-3-605 if, at the respondent’s initial appearance following an arrest for a crime involving domestic abuse, the court finds there is probable cause to believe the respondent either:

(A) Caused serious bodily injury to the alleged domestic abuse victim; or

(B) Used or displayed a deadly weapon.

(2) The alleged domestic abuse victim does not need to be present at the time the temporary order of protection is issued.

(4) The temporary order of protection may include any relief available under an ex parte order of protection issued pursuant to § 36-3-605.

The second instance a temporary order of protection is immediately put in place is through TCA §36-3-605. Upon the filing of a petition under this part, the courts may immediately, for good cause shown, issue an ex parte order of protection. An immediate and present danger of abuse to the petitioner shall constitute good cause for purposes of this section. Within fifteen (15) days of service of such order on the respondent under this part, a hearing shall be held, at which time the court shall either dissolve any ex parte order that has been issued, or shall, if the petitioner has proved the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, extend the order of protection for a definite period of time, not to exceed one (1) year.

(A) The petitioner is not a domestic abuse victim, stalking victim or sexual assault victim and that such determination is not based on the fact that the petitioner requested that the petition be dismissed, failed to attend the hearing or incorrectly filled out the petition; and

(B) The petitioner knew that the allegation of domestic abuse, stalking, or sexual assault was false at the time the petition was file.

TCA § 36-3-617.

Domestic Abuse Victim, Orders of protection in Tennessee, Temporary Order of Protection

Do you know what a Living Will is?

Written by Angel Kane on January 3, 2017. Posted in Kane & Crowell Blog.

If I had to pick one legal document, after a Last Will and Testament, that was of the utmost importance, I would have to pick a Living Will.

A Last Will and Testament is the document we all know about wherein you decide how your assets will be devised upon your passing. A Living Will, on the other hand, is the document that determines how you will live at the end of your life.

Will you be on life support? Will you be given certain nourishment? Will you be given CPR if you already are in your end stages of an illness?

You might think this document is just for you. And yes, with this document you are determining how your end of life stages will be. No one can override these decisions, not your spouse and not your children.

But this document is not just for you, I believe, from personal experience, this document is really for your family. No one wants to have to decide whether their mother or father should live or die. That is a crushing decision for many children to make.

If you have a Living Will, however, then your family does not have to make that decision, In fact, they can’t. You have taken the guilt and stress involved in making such a decision out of their hands and already decided your own fate.

Our office prepares Wills, Living Wills, Medical Directives and Powers of Attorneys often as family packages. When you determine the time is right to have these documents prepared, we can help determine which documents you need and which you may not need,

Document is for your family, What is a Living Will?, Will you be on life support?

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Uncontested Divorces – If your spouse has a lawyer, do you need an attorney?

Written by Angel Kane on January 3, 2017. Posted in Kane & Crowell Blog.

We often receive calls from people whose spouse has presented them with legal documents asking for a divorce. The divorce, however, is something they both want and all they have to do on their end is sign the papers they are presented with.

Do you sign them without consulting with an attorney? That’s a tough call.

First know, it’s extremely difficult to get those papers set aside once you sign them. Most Judges will not set them aside unless you can show you were under duress or there was fraud committed. Both are very hard to prove.

Second, once you sign, the legal standard to change those papers when it comes to custody of children becomes more difficult. And there is no way most times to change a property settlement agreement,

The papers you have been presented with can have life long consequences and the cost involved in changing them often is significant.

Our office charges an hourly consultation fee to review the papers with you. We can advise what the law is and if we believe the papers are fair or not fair. We can also undertake to fully represent you if you need us to negotiate them before signing them.

If you decide to sign them without an attorney consultation, then read every single line and be sure you completely understand the legal ramifications of certain obligations you are agreeing to. There is no harm in not signing them until you completely understand them

Do you need a Laywer?, If your spouse has as laywer?, Uncontested Divorces

What Are Grandparent Rights In Tennessee?

Written by Angel Kane on January 3, 2017. Posted in Kane & Crowell Blog.

We often are asked about Grandparent rights in Tennessee, and yes, grandparents do have the right to file for visitation in our state. They can also file for custody.

However, the standard for both is very high.

When it comes to custody, a grandparent can’t just show that they can better care for their grandchildren. They must actually show both parents are unfit to parent. While difficult to prove, in this day and age where addictions are becoming rampant, we are successfully representing many more grandparents who are having to step in and raise their grandchildren.

Visitation, on the other hand, where the parents are both fit, is a completely different standard of law. In these cases we are required to prove that the grandchildren once had a significant relationship with their grandparent that was severed by the parent and that because of this severance the child will suffer substantial harm. It can be a difficult case to prove but often grandparents can meet this burden because they have, in fact, played a significant part of their grandchildren’s lives.

Our office handles these cases and will be glad to evaluate your case with you to best determine if you have a cause of action and when the best time to file will be.

Are We A Joint Custody State?

Written by Angel Kane on January 3, 2017. Posted in Kane & Crowell Blog.

I’m often asked if we are a joint custody state. The answer is we are not.

What we are, however, is a state that requires our courts to maximize parenting time between both parents. And in doing that, our courts must look at several factors including those that effect the parents as well as the children.

In order to determine what type of visitation schedule will be best for the child the court looks at each parent’s living arrangements, their proximity to each other and their work schedules. The court also determines if the parents are making good life choices when it comes to drugs and alcohol, as well as the type of people they are spending their time with.

The court also looks at each child and their school performance, their activities and their preferences. However, courts often point out that a child’s preference alone, will not determine who that child lives with.

Witnesses can testify on behalf of each parent including friends, family, teachers and therapists. Grades and attendance records become very important.

Decisions about custody are probably the toughest ones for both parents and Judges to make. Schedules where children go back and forth too much are often not in the child’s best interest. Then again, schedules where children only see one parent a few days a month are certainly not good either.

We handle custody matters on a daily basis and can advise, from our experience, what may work for your family and what might not.

A We A Joint Custody State?, Maximize parenting time between both parents, Tennessee is not a joint custody state

can-a-parent-give-up-parental-rights-mcbrien-kane-crowell.jpg

Can a parent voluntarily give up all rights to his or her child?

Written by Amanda Crowell on February 20, 2015. Posted in Amanda Crowell's Blog.

I often have a parent (usually a mother) contact me and state that the other parent wants to give up his rights to his child and have no more obligations to that child. Can a parent voluntarily give up all rights to his or her child? The answer is not a simple one. If the parent has been established as the biological or legal parent of a child, that parent cannot simply relinquish his parental rights so that he or she no longer has a duty of support.

The exception would be if there is a potential adoptive parent who is ready and willing to replace the other parent and become the legal parent of this child. Courts do not want to reduce the child to the status of having only one parent; therefore, termination of parental rights and adoption usually go hand in hand.

There are different methods of terminating parental rights, and it can certainly be accomplished voluntarily under the right circumstances. There are also many grounds for the involuntary termination of parental rights in the event that the parent will not agree to the termination so that the child will be freed for adoption. Adoption and termination law is very complex, and the procedures vary according to the type of adoption which is anticipated.

I have experience in all types of adoption actions including step parent, related, agency, independent, and international adoption and have represented both adoptive parents and birth mothers. It is crucial for all parties to have excellent legal representation for the adoption process to have a positive outcome.

Can a parent give up right to their child?, Termination of parental rights and adoption go hand in hand, Will giving up rights relinquish support & duty?

Do I have to agree to divide parenting time 50-50 with my soon-to-be former spouse?

Written by Amanda Crowell on January 23, 2015. Posted in Amanda Crowell's Blog.

Recent revisions to the divorce laws in Tennessee require the courts to attempt to maximize the amount of time each parent spends with the minor child or children in fashioning a parenting plan. Sometimes the judge will decide that this means that a 50-50 division of time will accomplish this goal; however, there are many factors that a judge must take into account in determining a parenting schedule, and the most important is always the best interests of the child. You do not have to agree to any division of parenting time that you do not believe is in your child or children’s best interests. A good divorce attorney can help you determine what is likely to happen in court based upon the circumstances of your case, your children’s specific needs, and the usual preferences of the judge who will ultimately decide your matter.

The number of days each parent spends with the minor child or children will impact your life in many ways. Not only does it impact who is named as primary parent but it also affects the amount of child support paid and the standard which the judge will use in determining whether a parent can later take the child when moving more than 50 miles away from the other parent or outside the State of Tennessee.

It is important to remember that once filed with the court, a parenting plan cannot be easily changed. It becomes a court order, and unless you can prove a legally defined substantial and material change of circumstance, the parenting plan will remain in place until the child or children reach the age of majority.

Many people make the mistake of agreeing to a parenting plan without hiring an attorney to explain to them the long term consequences of such an agreement and to represent to the court what they believe is in their child’s best interests. Many times, they are then bound by a plan that they do not believe is right for them or their children with no way to remedy the situation.

When you realize how much is at stake, you will understand the importance of having an attorney on your side through the divorce process.

A good divorce attorney can help you, Do I have to agree to divide parenting time?, Recent revisions to the divorce laws in Tennessee

Pre-Nuptial Agreements

Written by Angel Kane on January 5, 2015. Posted in Angel Kane's Blog.

In Tennessee, our Courts will enforce Pre-Nuptial Agreements, but only if they meet certain legalcriteria.

As a divorce attorney, I see many, many battles fought over bank accounts, retirement accounts and real estate people owned prior to marriage. Often, without thinking during the marriage your spouse’s name is put on your bank account or your home.

And when you divorce, it may be too late to undo and you just made separate property – marital.

A well-drafted Pre-Nuptial saves you thousands upon thousands of dollars in the end.

A good agreement sets out exactly what property remains separate from the very beginning. It also can set out whether or not you or your spouse will have to pay alimony.

We get several calls about this issue and my advice is to always have a Pre-Nuptial prepared. Given how costly divorce can be and the fact that 50% of marriages end in divorce, it is only smart to consider preparing this agreement. Especially if this is a second marriage and you both have children from prior marriages.

If you decide to have us prepare a Pre-Nuptial Agreement, the law requires that you both make a full disclosure of your assets. If you fail to do so, the Pre-Nuptial can be considered void. Now is not the time to hide anything.

The law also requires that both of you be represented by an attorney in the process.

Our firm often prepares the Pre-Nuptial Agreement for one of the parties to insure all the legal requirements have been met. We then can arrange for your spouse to have the agreement reviewed by a separate attorney. This insures it will hold up in Court.

While the last thing you may want to think about when you are preparing for marriage is a Pre-Nuptial Agreement, believe me, when you are sitting next to us in Court and the Judge gives away ½ of your retirement, you are going to wish you had considered this simple agreement.

It’s worth every penny and then some.

Divorce is to late, Pre-Nuptial Agreements, Well-drafter Pre-Nuptial saves you $1000s