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Preliminary Hearing or No Preliminary Hearing? That is the Question …

Written by Angel Kane on . Posted in Kane & Crowell Blog.

Every criminal case commenced in General Sessions court in Tennessee includes the following. Whether it is Theft of Property, a Drug case, DUI, Assault, or any other such crime (felony or misdemeanor), offers the Defendant the option of having a Preliminary Hearing. Though such a hearing may look like a trial to a layperson, it is not.

A Defendant charged with a criminal offense in Davidson, Wilson, Smith, and Macon Counties is given a few options on what to do with his case.  Depending on the seriousness of the charge

Felonies, crimes involving more serious charges, can only be tried in Criminal court, either by the Judge or a jury. This is after the case has been presented to the Grand Jury and an indictment has been returned. The remaining options available consist of entering a guilty plea to a misdemeanor.  Or having or not having a Preliminary Hearing.

At the Preliminary Hearing

During a Preliminary Hearing, witnesses will be called by the State and cross-examined by Defense counsel, similar to a trial. However, there are fundamental differences. First, the District Attorney is not required to prove guilt beyond a reasonable doubt as in a trial. During a preliminary hearing, he only needs to establish probable cause exists.   This means proving a crime probably occurred and that the Defendant probably committed it). A standard that is comparatively easy for the D.A. to meet.

Second, since the burden is lower, the potential ramifications for the Defendant at the hearing are not as stringent. Finally, after the Preliminary Hearing, there is no sentencing hearing or jail time to be served. Instead, the judges typically bound the charges to the Grand Jury to determine whether an Indictment should be returned. Though the charges can be dismissed after a Preliminary Hearing, it’s uncommon due to the reduced legal standard.

Why would you want a Preliminary Hearing?

The advantage of holding a Preliminary Hearing is to force those alleging a crime has been committed to testify, under oath,.  And explain knowledge of the alleged crime and the Defendant’s involvement, if any.

By doing so, the Defendant has “locked down” valuable testimony.  Therefore, this precludes any subsequent changes in testimony at a later jury trial. If a witness changes his or her story at the subsequent trial, valuable inferences can be drawn. Thus, the witness’s truthfulness. The Defendant who waives his right to a Preliminary Hearing does so at his peril as it is the only opportunity he will have to confront his accuser before a trial on the merits is held.

A Preliminary Hearing, therefore, becomes a very important tool for your criminal defense attorney. This tool can assist your attorney in preparing and presenting your defense.

We are experienced Criminal Defence Attorneys.  If you are facing criminal charges, contact us at https://www.kane-law.com/contact-us

Criminal Law, General Sessions Court, Preliminary Hearing

Step-Parent or Grandparent Adoptions

Written by Angel Kane on . Posted in Kane & Crowell Blog.

I often enjoy assisting with a Step-parent or Grandparent adoption.   It is one of the most enjoyable aspects of my job. While the adoption process can be complicated, in some cases, it can be handled very quickly if a birth parent consents.

In Wilson, Smith, and Macon Counties, Step-parents and certain other family members can usually have adoptions approved without a six-month waiting period or a home study. In certain circumstances, the law allows the Judge to waive those requirements when the adoption is between family members. The law often requires the biological and/or legal parent to consent to the adoption. In other cases, their actions will cause them to have their rights terminated.  Once this termination becomes final, the adoption can be granted.

Step-parent or Grandparent Adoptions can be handled quickly and efficiently.

If we have consent to the adoption, we prepare the legal paperwork for the consenting parent to sign.  Then, within days, try to get in front of the Judge to approve the adoption.

In other cases, where a parent won’t consent to the adoption but they have not visited or paid support for several months.  We will serve that parent with a Petition for Termination and Adoption and move for default against them. Therefore, they terminate their rights and ask the Court to approve the adoption.

Wilson, Smith, and Macon County Judges can approve these adoptions in both Circuit and Chancery Court.

Both Judge Byrd and Chancellor Smith go out of their way to make the event a happy occasion. Clients are encouraged to bring family to Court to celebrate the big day.  Photos and videotapes are welcome by the Judges. The Judges will often pose with the family after the adoption as well. Court can often be an unsettling place.  However, adoption approval day is a celebration for our clients, the lawyers on hand, and the Judges.

Please contact us with questions about step-parent or grandparent adoptions.  https://www.kane-law.com/contact-us/

Adoption of a Family Member, Birth Parent Consent, Step Parent Adoption

Types of Custody

Written by Angel Kane on . Posted in Kane & Crowell Blog.

There are two types of custody – sole custody and joint custody. Technically, in Tennessee, we no longer use these words.  Instead, we call it parenting time; in essence, parents either share equal time with their children or they do not.  Who decides how much time you spend with your child during and after a divorce?

YOU DO – at least at first.

The Judges in Wilson, Smith, and Macon Counties are all fair and skilled in the Tennessee Law. However, they will be the first to tell you that if you and your spouse can’t decide how to divide time between your children, they will be forced to do it for you.No matter if you spend one hour or two days arguing your case to the Judge, no one knows your children as you do. For this reason, parenting time is something you should try to settle with your spouse. It may mean a lot of give and take, but the alternative, often, is not anything either of you may like.

I am often asked my opinion about types of custody.

In some respects, a child seeing both parents as much as possible is ideal. Joint custody or shared parenting can take on many forms; we have helped prepare parenting plans where each parent has week-to-week parenting while others find a three-day/four day weekly split works for them.  In some cases, we have prepared plans where one parent has the child during the school year, and the other has the child during breaks.

For some children, this works. For others, it’s a disaster. Some children need more consistency than others. They need one home, one table on which they do their homework each night, and one schedule they can control.  However, the decision is not mine to make. You know your children and what is best for them. If you and your spouse can’t agree, the Judge in your case will decide for both of you.

If you have questions about types of custody, contact Us.  https://www.kane-law.com/contact-us/

Joint custody, shared parenting, sole custody

Probate of Estate with Kane & Crowell Attorneys at Law

Safekeeping of a Will in Tennessee

Written by Angel Kane on . Posted in Kane & Crowell Blog.

Daily, I answer questions about the safekeeping of a Will in Tennesee.   I tell my Tennessee clients where I keep my Last Will & Testament, Powers of Attorney, and Living Will.  These documents are in my desk drawer in my office. They are not under lock and key. And I have told many people where they are located.  Additionally,  I have not given a copy of them to anybody.  They are not recorded at the county registrar.

However, most people place their Last Will & Testament and other important legal documents in lock boxes or safety deposit boxes at their local bank. The problem is, if you pass away, your family may be unable to access those areas without Court Orders.  This can become a  huge problem and sometimes a costly problem. As an attorney, I am required, at least at first, to present an Original Will to the Judge. If the family can not get their hands on the original Will, we have a problem even before the probate process starts.

I advise the safekeeping of your will Will, in its Original form, in an easy-to-find, accessible location.

If you are concerned that someone will find your Will and be upset by it or, worse yet, destroy it, we can discuss other options. For the rest of us, though, keep it simple.

Another question I am asked is, to whom should I give copies of the Will?  We will make you as many copies as you need. However, giving out too many copies causes a problem should you ever change your Will; in some cases, copies of old Wills have been brought to court in the hopes of having them probated.

I recently represented a person in a case like this. Heirs in an old Will attempted to probate a copy of the decedent’s former Will. My client (the rightful heir) was successful at both the trial and appellate levels; however, had the decedent not given out so many copies of the previous Will, this protracted litigation may have been avoided.

If you have questions about proper Wills or proper Estate Planning, contact us at https://www.kane-law.com/contact-us/

Last Will & Testament, Living Will, Powers of Attorney, Safe Keeping of a Will

Conservatorships in Tennessee

Written by Angel Kane on . Posted in Kane & Crowell Blog.

Personal Injury with Kane & Crowell Attorneys At LawBeing in a position to ask the Court to establish a Conservatorship in Tennessee for someone is hard. However, that person may not receive the appropriate medical care or state benefits unless you do. The Court sets up Conservatorships for those who cannot handle their needs. There are usually two situations where a Conservatorship is needed:  for a disabled child or parent.

One situation is when a disabled child becomes a disabled adult, and their parent can technically no longer make decisions for them. This prevents the parent from ensuring their child receives their state and/or health benefits. It also leaves the children vulnerable to other adults who may want to take advantage of them.

In Tennessee, parents have the right to Petition the Court to become their children’s Conservator. The Court will review the child’s medical history and determine if a Conservatorship is warranted. If it is, the parent (or sometimes another family member) is appointed Conservator.  And can continue to make decisions for their children past the age of 18.

At other times, a parent becomes disabled, and someone must be appointed to take care of their medical and financial decisions. Who becomes the Conservator can sometimes be a question to be litigated.

The law in Tennessee sets out a list of people who may be Conservator, and sometimes someone on the list may not be the right person. Other times, an adult has prepared a Health Care Power of Attorney that details exactly who they want to appoint a Conservator. It may be someone completely unrelated to them.

How Conservatorships in Tennessee are Appointed

With the help of a Guardian Ad Litem (a court-appointed attorney whose job is to advocate for the ward), the Judge will determine who the Conservator will be.

Once a conservatorship is established, a bond usually must be posted.  This is how the Conservator manages the ward’s money faithfully. The Conservator must account for the ward’s money to the Court every year. The Conservator may also petition the court to be reimbursed each year for their time as Conservator. They may also petition the Court to have their attorney fees reimbursed for the appointment of the Conservator.

The process may seem daunting but can often be accomplished within weeks. In Wilson, Smith, and Macon Counties, the Probate, Chancery, and sometimes Circuit Court can hear Conservatorship matters.  If you have questions about Conservatorships in Tennessee contact us at https://www.kane-law.com/contact-us

Conservatorship, Guardian Ad Litem, Health Care Power of Attorney

Child Custody. At what age can a child say who they want to live with?

Written by Angel Kane on . Posted in Kane & Crowell Blog.

Parenting Time with Kane & Crowell Attorneys At Law

I receive at least one call a week asking me about child custody.  Specifically, the question, “At what age can a child say who they want to live with?” There seems to be a belief that in Wilson, Smith, and Macon Counties, your child can speak to the judge at the age of 12.  And tell the Judge who they want to live with, and the Judge will do as the child asks.

In my experience, that is NOT the case.

The law says that at age 12, a child may state their preference. However, this is one of many factors the Judge may consider when deciding custody. The law sets out the factors the Judge considers when determining custody, and this preference alone will not make or break the case.  Furthermore, if you are a resident of Lebanon, Mt. Juliet, or Watertown, your local Judges will often speak to the children even if they are younger than 12.

Most young children are allowed to testify in the Judge’s Chamber with only the Judge and the two attorneys present. The attorneys and the Judge have the right to ask the child questions. And often, someone asks, What did your Mom or Dad tell you about what is going on today?

When it Comes to Child Custody Questions, Do Not Coach Your Children

I advise you not to coach your children about what to say to the Judge. It is obvious within the first 10 minutes which parent has told the child about the divorce.  And which parent has coached the child about what to say about the other parent.  I strongly recommend you say nothing to your children about your ongoing case and not ask them who they want to live with.

I know this is very hard to do. But your children should not be put in that position to pick between their parents in a divorce. That’s not to say they won’t be asked their preference in chambers. But pressuring the child beforehand or prepping them for Court will not help you.

If you have questions about child custody or divorce, contact us at https://www.kane-law.com/contact-us/.

Child Custody, Deciding Custody

Alimony in Tennessee

Written by Angel Kane on . Posted in Kane & Crowell Blog.

Unlike the Tennessee Child Support Guidelines, which do not determine how much alimony someone may be entitled to, in Tennessee.  The determination of alimony relies on the individual’s need for alimony versus the spouse’s ability to pay. Additionally, the law outlines various factors the Judge must consider when deciding whether to grant alimony. These factors include age, length of marriage, education, future self-supporting ability, and current assets.

The payment of attorney fees in the divorce and future health insurance benefits can be considered alimony. Tennessee law specifies different forms of alimony, some of which are modifiable at a later date, while others are not. Some alimony types involve a specific sum, and certain payments may continue indefinitely. In most cases, alimony is considered income for the recipient and a deduction for the payer. However, its dischargeability in bankruptcy depends on specific circumstances.

Due to these complexities, your attorney must educate you on the various types of alimony and their consequences.

Recently, Tennessee garnered headlines regarding alimony awards, as the Court of Appeals had initially granted alimony to a spouse, potentially altering the future basis for such awards. However, the Tennessee Supreme Court later reversed this decision, maintaining longstanding rulings on alimony awards.

Determining Alimony in Tennessee

In determining alimony in Tennessee, several factors and facts about each party come into play. While there is no magic formula for determining alimony, past legal cases and their precedents aid the Judge in deciding whether an individual qualifies for an alimony award or not.  If you are seeking alimony or wondering about eligibility to receive it, here are some key considerations.

  1. Types of Alimony in Tennessee:

    • Alimony in Futuro (Periodic Alimony): This is support paid periodically, typically monthly, for an indefinite period.
    • Rehabilitative Alimony: Support is provided to help a spouse acquire the education or training necessary to become self-supporting.
    • Transitional Alimony: Support to assist a spouse in transitioning to a new financial situation after the divorce.

  2. Factors Considered by the Court:

    • The court considers various factors when determining whether to award alimony, including:
      • The duration of the marriage.
      • The standard of living during the marriage.
      • Each spouse’s contribution to the marriage, both financial and non-financial.
      • The earning capacity, needs, and financial resources of each party.
      • The age, physical and mental health, and potential for future employment of each spouse.
      • Fault in the divorce (though Tennessee is a “no-fault” divorce state).

  3. Agreements between Spouses:

    • Spouses can also reach their own agreements regarding alimony through negotiation or mediation. If the spouses can agree on the terms, the court may approve their agreement.

  4. Legal Assistance:

    • It’s advisable to consult with an attorney specializing in Tennessee’s family law. They can provide guidance based on your specific circumstances and the current laws.

  5. Modification or Termination:

    • Alimony orders may be subject to modification or termination based on changes in circumstances, such as the recipient’s spouse remarrying or a significant change in financial situations.

  6. Application Process:

    • If you’re in the divorce process, alimony may be addressed as part of the overall divorce proceedings. You may need to petition the court if you’re already divorced and seeking alimony.

Remember that family law can be complex; the information provided here is a general overview. Laws and procedures may change, so it’s crucial to consult with an attorney for advice tailored to your specific situation.  For a consultation regarding divorce or alimony, contact us at https://www.kane-law.com/contact-us

attorney fees in the divorce, how much alimony, need for alimony, types of alimony

Dividing Retirement in a Divorce

Written by Angel Kane on . Posted in Kane & Crowell Blog.

Depending on where your spouse works or has worked, he or she may have a retirement or pension. If he does, dividing retirement in a divorce may be necessary in most cases.  As those monies are marital property to be divided by the Tennessee Court.

Each company is different, and many require certain language in the Court Order before they comply with any division request. And if your spouse is a Federal or State employee or a member of the military – his retirement or pension and its division can be complicated.

Qualified Domestic Retirement Orders are the legal documents we prepare to divide many of the retirement plans in Tennessee. The military requires other documents that we prepare to divide military benefits.

Oftentimes, clients come to us years later with Divorce Decrees that set out that they were to receive a portion of their husband’s or wife’s retirement, but their attorney never prepared the follow-up documentation necessary to divide this retirement or pension. By then, it may be too late, as the spouse may have withdrawn all the money.

Just because your Marital Dissolution Agreement states that you get half of your spouse’s retirement or pension, it will not magically happen. The company or military is not required to abide by your Final Decree. Unless the proper follow-up documentation is delivered to them.

What are the consequences of dividing retirement in a divorce?

What are the consequences of splitting a retirement or 401k?  Usually, we prepare documents that allow your portion of your spouse’s 401k to be moved into your own individual account. From there, you may leave it with the company or move it to your retirement company.

Often, if you choose to leave the money in the retirement account, you won’t be charged except possibly a few dollars for administrative costs to accomplish the split into two accounts. However, if you cash out the money, you could face penalties and taxes for early withdrawal.

You must know as much as possible about your retirement and your spouse’s accounts before you meet with your attorney. These accounts are often one of the most valuable assets in a divorce. Therefore, your attorney must understand what you each have so that they can be fairly divided.

If you have questions about divorce or dividing retirement accounts in a divorce, contact us at https://www.kane-law.com/contact-us

assets in a divorce, Splitting 401K in a divorce, Splitting Retirement Funds in divorce

Understanding Probate - A Guide to Settling an Estate Kane Law

How Probate Can Help

Written by Angel Kane on . Posted in Kane & Crowell Blog.

Many clients have heard the probate process can be time-consuming and expensive. In other states and counties, it can often be. In Wilson County, Tennesee, the process can be taken care of in four months with the proper estate planning documents. However, you must know what you are doing to navigate this system.  I am an attorney who helps with this process daily, and here is how probate can help you.

First, you typically can’t sell inherited property if the estate hasn’t been properly handled. You need Tax Clearance letters and Tenn Care waivers. You also have to ensure the proper notices to creditors have been written in the paper and mailed out.

To get started, the Executor of the Estate is required to produce the Last Will & Testament.  From there, he or she helps me notify the creditors. Then, both the Executor and I will be required to make a quick court appearance. After this, unless there are problems with the estate, all other court appearances are handled without the executor’s presence.  If there isn’t a Will, we still probate the Estate. We appoint an administrator to serve in the same capacity as an Executor would have served.

How Probate Can Help You Navigate a Difficult Time

Yes, complications may arise. The Original Will may be lost. Fortunately, we have a process for proving a copy is the last one.  Someone might contest the Will, or a spouse may have been written out and may now need to assert her rights. Children from prior marriages often need to be dealt with. Sometimes, there is more debt than assets, and we must do all we can to protect those assets. All this can be accomplished through the Probate of the Estate.

Losing a loved one is one of the worst experiences we can go through. And the last thing anyone wants to try to figure out is a complicated legal system. I understand my job as an attorney is to make your life as easy as possible during this process. As a Probate Attorney, I will strive to handle the details for you.

If you need help preparing or probating a Will, contact Kane & Crowell at https://www.kane-law.com/contact-us/

 

Estate planning, Last Will & Testement, Probate process