Angel Kane, Attorney

ANGEL KANE has been practicing law since 1995. Angel was a member of the University of Memphis Law Review and served as a judicial law clerk while in law school. A graduate of the University of Memphis Law School, Angel has practiced in Memphis and Lebanon, Tennessee.

Why Do I Need a Last Will & Testament?

Why Do I Need a Last Will & Testament? Why Do I Need a Last Will & Testament?

To some people, it may seem scary to have a Last Will & Testament drawn up because that means you have to think about what will happen upon your death. If you do not have one drawn up though, you will not be in control of what happens to your assets upon your passing and you could leave your family in a mess.

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How Can I Adopt My Stepchild?

How-Can-I-Adopt-My-Stepchild---Kane-Law How Can I Adopt My Stepchild?

You may be a stepparent that has helped your spouse, the biological parent, raise your stepchild and now you wish to formalize that relationship through adoption. This means that child would now be your own, legally.

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Do I Need a Prenuptial Agreement?

Do-I-Need-a-Prenuptial-Agreement---Kane-Law Do I Need a Prenuptial Agreement?

If you are getting married and want to protect your assets, then yes. A prenuptial agreement is a negotiated document, signed by a couple prior to their marriage. The document will typically lay out ownership of property, money, and assets. This document will be binding in Court as long as the document is entered into freely, knowledgeably, and in good faith. All assets of both parties must be fully disclosed or else the document will not be considered enforceable. It is very important that each person has their own attorney to ensure that each of you have full knowledge of what is going on and what you are signing and also make sure the agreement is enforceable.

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If I Sign a Power of Attorney, What Does That Mean Exactly?

If I Sign a Power of Attorney What Does That Mean? If I Sign a Power of Attorney What Does That Mean?

A Power of Attorney is a legal document that gives certain powers to someone you appoint to act on your behalf. The Power of Attorney will specifically lay out the powers that are given to the person whom you appoint. There are two types of power of attorneys that you can sign. A Healthcare Power of Attorney allows you to appoint someone to make healthcare decisions for you. A Durable Power of Attorney will appoint someone to handle everything else for you, including making deposits, paying bills, filling out insurance paperwork, etc.  Signing a Power of Attorney ensures that someone you trust will manage your financial affairs and make healthcare decisions in the event that you are not able to do so for yourself. A Power of Attorney is especially important if you have health problems that you foresee affecting your ability to handle matters for yourself in the future.  

It is also important to note that you are able to revoke the Power of Attorney at any given time. If you revoke the Power of Attorney, this means you are able to take away all of the authority that was granted by the Power of Attorney. Also, the Power of Attorney is only effective while you are still living. Upon your death, the Power of Attorney becomes void and is no longer effective.

If you have any further questions about a Power of Attorney or if you need one drawn up, contact Angel Kane at Kane & Crowell Family Law Center at www.kane-law.com or by phone at (615) 784-4800.

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My Name is Not on the Deed to Our Property. So, What Happens When We Divorce?

My Name is Not on the Deed to Our Property.- So What Happens When We Divorce? My Name is Not on the Deed to Our Property.- So What Happens When We Divorce?

Simply because only one spouse’s name appears on the Deed to property, does not mean that spouse is the sole owner of the property. Each spouse has an ownership right in the property if it were acquired during the marriage, regardless of how the property is titled. This means that a spouse is still entitled to their equitable share of the property in a divorce proceeding. A spouse can also have a marital interest in any property that is acquired before the marriage. Even if the property was acquired before the marriage and a spouse’s name is not on the property, that spouse may still have an interest in the appreciation of that property since the marriage. If a spouse has contributed to the property in any way, they can possibly claim an interest in the property.

The same goes for any property – cars, accounts, and retirement accounts. Do not let how something is tilted deter you from asking for your marital share.

If you are needing to file for divorce or have further questions regarding your interest in property, contact Angel Kane at Kane & Crowell Family Law Center at www.kane-law.com or by phone at (615) 784-4800. We handle cases in Wilson County, Sumner County, Trousdale County, Macon County, Smith County, and Rutherford County and are happy to put our experience at work for you.

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I Have Only Been Married Three Years, Will I be Entitled to Alimony?

I-Have-Only-Been-Married-Three-Years-Will-I-be-Entitled-to-Alimony---Kane-Law Will I be Entitled to Alimony?

You are entitled to alimony if you are in need of support and your spouse has the ability to pay that support. A Court can order alimony for several reasons.   Alimony may be required to help a spouse earn more or get a job or could also be awarded to help a spouse return to school so that they have a higher earning capacity. In Tennessee, a Court may order temporary, short-term, or long-term alimony. Temporary alimony is granted during the divorce proceeding and before the final decree. Short-term alimony may be granted after the divorce to allow the receiving party time to gain necessary skills in order to have a higher earning capacity. Long-term, or permanent alimony may be granted to a spouse who has significant needs and is usually reserved for long-term marriages.

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New Laws Take Effect in 2019

New Laws Take Effect in 2019

Along with a new year, comes new changes in the law. Many new laws take effect in 2019, including the following:

  1. Law Enforcement will now be required to provide a formal notice within five (5) days of property seizures of a forfeiture-warrant hearing to the property owner, even if the property owner was not present at the time the property was taken. Any property that is wrongfully seized must be returned within five (5) days.

  2. In 2018, retail stores were able to begin selling alcoholic beverages on Sunday, but this did not include grocery stores. As of January 6, 2019, grocery stores will be able to sell wine on Sundays from 10:00 a.m. until 11:00 p.m.  

  3. There are new laws that will take effect concerning opioids and pharmacies. Initial opioid prescriptions will now be limited to a three-day supply for new patients. Although, there will be exceptions for surgeries, cancer, hospice, sick cell and treatment in licensed facilities. A new state law will also establish an opioid hotline and requires any
    business that handles, distributes, or carries opioids to hang a sign up with the hotline’s number so that any potential opioid abuse can be reported anonymously.

  4. In cases where an ultrasound is performed as part of the examination that takes places before an abortion, the person who performs the ultrasound must now offer the woman getting the abortion the opportunity to learn the results of that ultrasound. If the ultrasound is performed, the report of the abortion must indicate whether or not a heartbeat was detected during the ultrasound. This data will then be reported to the Department of Health each year.

  5. Public schools and public charters schools that are being used for polling places for the November election must be closed for instruction on election day; however, for elections outside of the November election, it will be up to law enforcement agencies to decide whether or not the schools should be close.

To learn more about how these new laws and others may affect you, contact us at www.kane-law.com or by phone at (615) 784-4800.

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Murphy v. NCAA: The United States Supreme Court Allows States to Regulate Sports Gaming

Murphy v NCAA - The United States Supreme Court Allows States to Regulate Sports Gaming Murphy v NCAA - The United States Supreme Court Allows States to Regulate Sports Gaming

               On Monday, May 14, 2018, the United States Supreme Court issued its opinion in Murphy v. National Collegiate Athletic Association.  In this opinion, the Court ruled 7-2 in favor of striking down a Federal law which prohibited betting on sports, other than in narrowly defined exceptions.  The ruling is a victory for States’ rights, and may have greater implications for the States in the Union, in the future. 

            In 1992, Congress passed the “Professional and Amateur Sports Protection Act” (PASPA).  Effectively, PASPA prohibited the states from promoting, allowing or authorizing gambling on sports activities, except for “sports lotteries” in Oregon, Delaware and Montana, and certain gambling activities in Nevada.  PASPA also contained an exception that gave states which previously had allowed casino gaming in the past ten years a one-year grace period to pass laws legalizing sports betting.  PASPA did not apply to gambling or betting on certain activities, such as jai alai and horse and dog racing. 

            In 2011, voters in the State of New Jersey approved a referendum to allow sports betting within the state.  In 2012, the New Jersey legislature passed a law allowing sports wagering at casinos and racetracks.  Various professional sports leagues, including the National Hockey League, National Basketball Association, Major League Baseball and the National Football League filed suit against the state, claiming that the 2012 law violated PASPA.  The State of New Jersey was unsuccessful in trying to enforce the 2012 law allowing sports betting until the case was accepted by the United States Supreme Court in 2016.    

            The Supreme Court’s opinion, authored by Justice Samuel Alito, held in substance, that the Tenth Amendment to the United States Constitution, which holds that powers not expressly delegated to the Federal government are reserved for the states, prohibits the States from being required to enforce a Federal statutory scheme.  The distinction is that while the Federal government is free to pass and enforce laws related to subjects of Federal importance, it cannot and may not require the States to pass and enforce laws substantially of Federal origin. 

            Post-Murphy, the States are now free to authorize sports gambling within their borders, as the majority of PASPA has been struck down as unconstitutional in light of the Tenth Amendment.  This does not mean that sports gambling will be legal in all states, including Tennessee; it simply means that the States are no longer prevented from crafting laws approving sports gambling.  The next step following this case would be for the respective State legislatures to pass laws allowing sports gambling. 

            Looking ahead, Murphy is an important opinion in the field of States’ rights and the Tenth Amendment.  The Murphy opinion gives some support to the notion that the States may be allowed to pass laws of purely state concern, without interference from the Federal government. 

            To learn more about this opinion, as well as other Supreme Court opinions, visit scotusblog.com

            If you have questions about legal representation, contact Angel Kane at (615) 444-8081.   

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Tennessee Supreme Court Clarifies Priority of Claims in Wrongful Death

 
       In March, the Tennessee Supreme Court issued its decision in Nelson v. Myres, involving interpretation and priority of claims under Tennessee's wrongful death statute, which can be found at Tenn. Code Ann. Sec. 20-5-106.  In Nelson, Mrs. Myres was killed in an automobile accident in Sumner County, Tennessee.  Her husband, who was driving the vehicle at the time of the accident, was later incarcerated for vehicular homicide.  
 
       Both Mr. Myres and Brittany Nelson, Mrs. Myres' adult daughter, filed wrongful death actions on behalf of Mrs. Myres.  The Sumner County trial court dismissed Ms. Nelson's action, holding that Mr. Myres' surviving spouse, had priority to maintain the wrongful death action.  On initial appeal, the Tennessee Court of Appeals reversed the trial court, holidng that Mr. Myres had a conflict in bringing the wrongful death action, as he could be both a plaintiff and defendant (as he could be determined partially at fault) and that only Ms. Nelson's action would adequately prosecute Mrs. Myres' wrongful death.  
 
       The Tennessee Supreme Court reversed, and agreed with the trial court that Mr. Myres, as surviving spouse of Mrs. Myres, had priority to bring the wrongful death action over Ms. Nelson, as the daughter.  THe Supreme Court specifically noted that Tennessee's wrongful death statute Sec. 20-5-106, expressly provides that the surviving spouse has prority over a decedent's children, to bring a wrongful death action on behalf of the decedent.  The Supreme Court also noted that there was no exception for the circumstances present: when the surviving spouse may be implicated as negligently causing the death of the decedent spouse.  There are, however, exceptions in Tennessee law, wheree a surviving spouse may not bring a wrongful death action on behalf of their spouse, where the suriviving spouse has abandoned or intentionally killed or caused the death of the decedent.  
 
       If you have any questions about personal injury law, contact Attorney Angel Kane at (615) 444-8081.   
 
 
 

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Legislature Passes Cell Phone Access Law in Domestic Violence Cases

            On April 3, 2018, the TN legislature officially passed House Bill 2033, which allows victims of domestic abuse to request a court grant access to the victim’s cell phone plan, even if they are not the account holder. 

            The bill, introduced by Rep. Jim Coley, allows a victim of domestic violence to ask that the issuing court direct that the victim’s phone company transfer billing responsibility and account rights to the victim when that victim is not the account holder.  The victim may ask for such an order when initially seeking an Order of Protection or when making a separate request of the court. 

            If granted, the Court will order the victim’s phone service provider to transfer account responsibility to the victim of the victim’s phone number and the phone numbers of any minor children in the victim’s care.  Once transferred, the victim gains all rights of the account holder, but is responsible for the payment of the account.      

            Presumably the legislature’s intent in enacting this law was to enable victims of domestic violence to gain control over their cell phone accounts, when the alleged abuser is the primary account holder.  The law should also help domestic violence victims by making it easier for such victim to cancel an existing phone number and get a new phone number to prevent unwanted contact from the abuser. 

            The bill passed unanimously in the House of Representatives this week.  The bill had previously passed unanimously in the Senate in February. 

            According to 2016 Tennessee Bureau of Investigation statistics, 78,100 domestic violence incidents were reported to Tennessee law enforcement agencies during the preceding year.  If you are the victim of domestic violence, you have options.  Contact the National Domestic Violence Hotline at 1 (800) 799-7233 or your local law enforcement agency.

            If you seek legal representation regarding divorce or child custody in conjunction with a domestic violence matter, contact the attorneys of Kane & Crowell Family Law Center at (615) 784-4800.   

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Spires v. Simpson: The Supreme Court Clarifies Wrongful Death

Image: the Tennessee Supreme Court house

            In December 2017, the Tennessee Supreme Court issued the opinion on Spires v. Simpson, concerning a wrongful death lawsuit out of Monroe County, Tennessee. 

            In Spires, Mr. and Mrs. Spires were parents of a minor child, born in the spring of 2009.  One month after the child’s birth, Mr. Spires abandoned the family, though the parties did not divorce.  Mr. Spires did not provide any child support or financial support to Mrs. Spires.  In October 2010, Mrs. Spires was tragically killed in a car accident.  Following her death, custody of the Spires’ child was given to Mrs. Spires’ mother. 

            One month after Mrs. Spires’ death, Mr. Spires brought a wrongful death action against the driver of the vehicle in the accident that killed Mrs. Spires.  Both Mrs. Spires’ mother and brother sought intervention in the wrongful death accident, claiming that they, as custodians of the Spires’ child, were entitled to any wrongful death settlement, not Mr. Spires due to Mr. Spires having failed to pay any child support to Mrs. Spires for benefit of his child. 

            The trial court agreed with Mrs. Spires’ mother and brother, and held that Mr. Spires could not recover any amounts from the wrongful death lawsuit due to him owing back child support to Mrs. Spires and for benefit of four other unrelated children.  The Tennessee Court of Appeals reversed in part, holding that while Mr. Spires was entitled to prosecute the wrongful death lawsuit; however, any recovery he received would be applied to his back child support arrearages on the children other than his child with Mrs. Spires. 

            The Tennessee Supreme Court disagreed with both the trial court and the Court of Appeals.  The Supreme Court held that the child support arrearage provisions at Tenn. Code Ann. § 20-5-107 and Tenn. Code Ann. § 31-2-105 did not apply in the Spires’ case, as Mr. Spires was prosecuting the wrongful death action as the surviving spouse of Mrs. Spires.  The Child Support Arrearage forfeiture provisions under Tennessee law only preclude a parent who is behind on child support from prosecuting a wrongful death action on behalf of a deceased child, when that parent owes child support for benefit of the deceased child.  The Supreme Court found that the purpose of the two forfeiture provisions was to prevent a parent behind on child support from financially benefitting from the wrongful death of a child the parent failed to support.    

            The Spires opinion clarifies the interpretation of who can bring a wrongful death action, and the Child Support Arrearage forfeiture provisions.  For more information, or to read the full opinion, visit http://tncourts.gov/courts/supreme-court/opinions/2017/12/27/kenneth-m-spires-et-al-v-haley-reece-simpson-et-al .

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Alimony Taxation: What you should know

        tax forms   

            Signed into law on December 22, 2017 the “Tax Cuts and Jobs Act of 2017” makes changes to the existing tax code.  One of the important implications for our clients is the changes to alimony. 

            Under the previous law, alimony was deductible by the spouse paying alimony (the obligor).  Alimony received was considered taxable income on the tax return of the spouse receiving the spousal support (the obligee).  Accordingly, such alimony was taxed as the oblige spouse’s income.    

            The 2017 Tax act now changes this law going forward.  For divorces after December 31, 2018, alimony paid cannot be deducted by the obligor spouse.  At the same time, the obligee spouse does not have to pay taxes on alimony received. 

            This is a marked change in the existing tax laws regarding alimony, which has been the norm for seventy-five years.  It is important to note that the new law only affects divorces entered after December 31, 2018. 

            If you have any questions about divorce or alimony, contact Angel Kane at (615) 444-8081. 

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New Year, New Laws Take Effect

The Tennessee State Capitol at night time

            Not only does January 1, 2018 bring in the new year, but also new laws as passed by the Tennessee Legislature.

            Barbers may now perform their services in a residence.  Prior to 2018, barbers could only render their services in a residence for a person who was ill.  However, to work in or out of a residence, barbers must possess a residential barber certificate. 

            A few changes take effect regarding school bus drivers.  Beginning in 2018, school bus drivers must be at least twenty-five years old, and all new school bus drivers must complete a training program prior to transporting any children.  The changes also create a transportation supervisor program, for the monitoring and supervision of local and charter school transportation. 

            Homeowners may cancel alarm contracts for periods longer than two (2) years, upon giving thirty (30) days’ notice to an alarm company, if the homeowner has to sell their home for medical reasons.  However, the cancellation must come after the initial two (2) year period, and the cancellation must include a letter from the homeowner’s treating physician explaining that the house must be sold and alarm system canceled due to medical reasons. 

            Individuals seeking handgun carry permits may be exempted from the firing range qualification component if they have proof they passed small arms qualification or combat pistol training in any branch of the United States armed forces. 

            For motor vehicles, headlights must be either white or amber.  It seems most stanard passenger vehicles will comply with this law.  However, driver’s may not modify their vehicle headlights to colors other than white or amber. 

            Most importantly, 2018 brings new penalties for cell phone usage in school zones.  Drivers using or talking on a handheld cell phone in a marked school zone when flashers are operating can be prosecuted for a Class C misdemeanor, punishable by a $50 fine.

            For more information about the new laws taking effect January 1, 2018, visit http://www.local8now.com/content/news/16-new-Tennessee-laws-come-with-the-new-year-466717603.html

            If you have a legal issue, contact the attorneys at Kane & Crowell Family Law Center at (615) 784-4800.  

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Five tips for meeting with your attorney

 

image: lawyer definition

My legal assistant and I were recently discussing what questions clients and prospective clients ask her about meeting with myself and other attorneys here.  As a result of our conversation, we came up with following tips for clients when meeting with their attorneys. 

Write down questions and concerns beforehand

What do you actually want to accomplish through your attorney? You should have a basic idea of what outcome you are hoping for. This helps me, as an attorney, to know what objectives I’m working towards and tailor my representation to achieve your goals.  As an attorney, I’m here to help you BUT you, as the client, are my customer and I seek to achieve your objectives on your behalf. 

Try to relax

Easier said than done, right? I understand whatever situation you may be in can be very stressful and upsetting. However, being able to speak clearly and calmly greatly helps us to understand the facts of your case.  Family law and criminal defense are possibly the two most emotional areas of the law, and I completely understand the stress and emotions one may experience.  In my 20+ years practicing law, I’ve seen clients cry in my office and get upset, and it’s perfectly fine.     

Make sure you tell me EVERTHING relevant to your case even if it makes you look bad

As an attorney, I have to know EVERYTHING in order to represent a client the best I can.  A crucial part of the attorney-client relationship is candor between the parties.  If you leave information out when discussing your case, especially if it’s on purpose, then this information could come out in the courtroom in front of the judge or jury. You do not want this to happen.  This can make both the attorney and the Client look bad and lose credibility.  When you tell me information, even bad information, there are various ways I can attempt to exclude or minimize this information.  

Bring a notebook

The legal process has many steps. It’s easy to get confused when talking about your case and the specific steps that must be taken. Taking notes helps you keep track of those steps, as well as writing down any additional information that I may need from you, for you to provide later. 

Bring any prior paperwork you may have

You should bring in all pertinent paperwork about your case if it’s ongoing.  The legal system operates on deadlines and dates.  I, as an attorney, need to see what has been filed with the court so I know what may have already occurred and what needs to be done going forward. 

I know the legal process can be scary and overwhelming. However, hiring an attorney to help guide you through the process can make it that much easier.  It’s always comforting to have someone on your side and fighting for YOU.  By following these suggestions above, you can have a more productive meeting with your attorney. 

Contact Angel at (615) 784-4800 to set up a consultation regarding your case. 

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Divorce: What To Expect

 

Image: divorce word tile

Many clients who come to us for advice during a divorce are going through it for the first time and have many questions. Although the process can be very complicated, knowing the basic information can help put a client at ease during a stressful time.

  Divorce can be a difficult situation for every party involved. It is the legal undoing of two people's assets, liabilities, and everything in between that make up the fabric of their lives. Knowing what to expect and being prepared for the inevitable changes are important when you are going through a divorce.

  The first decision to be made is whether the divorce will be contested or uncontested. If you can come to a full agreement, the divorce is uncontested and the process is more simple. If you cannot come to a full agreement, the divorce is contested and requires negotiation, mediation, and, in some cases, a trial.

  In an uncontested divorce, the parties, or their attorneys, complete the necessary paperwork and file with the Court. If children are involved, parents must take a parenting class and file the certificate of completion with the Court.

  In a contested divorce, one party will begin the process by filing a complaint for divorce. The other party will then file their answer to that complaint and, possibly, a counter-complaint. The parties or their attorneys will then enter the negotiation phase. If negotiation is unsuccessful, the parties must attend mediation with a third party. In most cases, an agreement is able to be reached in either of these two phases. In some cases, mediation is not successful and the parties must have a trial to allow a judge to decide the issues, which can be a lengthy process.

  In Tennessee, the mandatory waiting period for a divorce from the time of filing is 60 days if the parties have no minor children and 90 days if the parties have minor children. This means that the divorce cannot be finalized until the time period runs.

  If you or someone you know is contemplating divorce or have been served with a complaint for divorce, contact us to get answers to your questions and let us assist you in making the best decisions.  Call Kane and Crowell at  (615) 784-4800 for more information about the divorce process in Tennessee.  

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Understanding Criminal Law: Retirement vs. Dismissal

Image: gavel and judge's quarters

  If you have a criminal case, sometimes either a retirement or a dismissal may be obtained. The laws surrounding both can be confusing, so hiring an experienced criminal lawyer to navigate the system is often an advantage. Below is a brief summary of the two.

  A dismissal is exactly what it sounds like; your case is dismissed in its entirety. It is rare to walk away with an outright dismissal. However, an outright dismissal does happen on occasion, and having a local lawyer fighting on your behalf is a good step in that direction.

  A retirement, on the other hand, is a continuance with a dismissal at the end. Once the criminal case has been continued for some time, it is dismissed, as if it never occurred. A retirement may be conditioned upon certain factors being met. Further, at the end of a retirement, when the case is dismissed, a person is eligible to have their criminal record expunged.

  The difference between a retirement and a dismissal is that a dismissal completes your case right away, while a retirement dismisses your case after a set period of time. It is important to note that a retirement may also be conditioned upon certain requirements, including community service, probation, payment of fines, or other tasks, which must be completed before your case is dismissed.

  It is possible to have a criminal case andget a retirement, or even a dismissal. However, these results depend upon the facts of each case. Consulting an experienced local lawyer, who knows their way around the court system is a good start in that direction. Call us for a consultation at (615) 784-4800.

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Know Before You Post: Social Media, Search Warrants and Your Case

 
 
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Are you aware that what you post on social media may be used against you in your case?  Likewise, you may use another party's social media posts against them in your case. However, obtaining proof of these posts is not always easy. Ideally, you would be able to get an image of the posts. A subpoena or court order may be needed to recover posts that have been deleted or hidden. Some social media companies have argued it violates people's constitutional rights to force them to provide someone's social media account information or history. Here is a link to an article regarding a recent NY Court of Appeals decision on whether Facebook must give access to their users' posts. The Court decided Facebook must comply with requests to access user data. https://www.nytimes.com/2015/07/22/technology/facebook-loses-appeal-on-new-york-search-warrants.html?smid=tw-share
 
  At Kane and Crowell, we are ready to advise you on how social media posts and information may specifically affect your case. Call us now to schedule a consultation. (615) 784-4800
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Why Am I Required to Take a Parenting Class to Get a Divorce?

 Image: certificate of completion

Everyone going through a divorce in Tennessee has to take a court-approved parenting class if you have minor children at the time of your divorce. According to www.tn.gov, “This class or series of classes gives parents the information necessary to deal with their children and with each other during and after the divorce process. These seminars are meant to help the divorcing family through the traumas of divorce without putting more stress on the parties and their children.” The class includes topics related to children and family such as counseling; an overview of the Court, mediation, child support, and parenting plan process; suggested ways to help children of various ages cope with divorce; and grief and loss stages that everyone involved may experience through the process. This class must be completed within sixty (60) days of your divorce being finalized, BUT the sooner you can take the class, the better off everyone will be (and maybe even save you money in the long run.)

  The class can be taken in-person or online and typically lasts 4 hours. The cost is approximately $50, depending on the course you choose. As part of our legal services in a divorce case, we help our clients figure out the best way for the to complete this crucial step. Contact us today at (615) 784-4800 to see how we can assist you. 

 

 

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Implied Consent: Do You Know Your Rights?

   Image: an officer is writing a man a ticket

 

This topic has been trending lately due to the disturbing video of a Utah nurse being arrested for not drawing the blood of an unconcsious patient for an officer without a warrant that has gone viral. Many people are not sure what their rights are when it comes to constitutional searches and seizures.

  Have you ever had an officer ask if you "consent" to allowing them to do a search? Are you aware that without having probable cause to believe an offense was committed, officers are not allowed to conduct a search without a search warrant? As usual, there is an exception to this law. It is called the good faith exception. In Tennessee, officers are allowed to collect evidence that may otherwise be found to be inadmissible in court if they believed in good faith that all of the circumstances gave them probable cause to do so. 

    There are two types of consent: actual and implied. Actual consent is when you expressly give consent, either orally or by writing. Implied consent is when it appears from all of the circumstances that consent has been given. Tennessee has a statute (55-10-406) that allows an officer of the law to order a test to check the alcohol or drug levels in a driver's blood if they have reasonable grounds to believe the person was driving while under the influence. The officer must explain to the driver the consequences for refusing to allow such a test. The minimum penalty of refusing is loss of license for one year. If the driver still refuses to give actual consent to the test, the driver can be charged under this statute and the test can still be administered.

   Kane and Crowell attorney Ashley L. Jackson had the privilege of hearing oral arguments on this issue in front of the Tennessee Supreme Court in the case of State of TN v. Corrin Reynolds. Essentially, the issue in this case was whether the good faith exception trumps someone's constitutional rights to be free of illegal search and seizure. Does a blood test for drugs or alcohol count as a search? And, if so, is a warrant required to conduct that type of search? The Supreme Court decided that a warrantless blood draw violates a defendant's constitutional rights. However, the Court adopted the good faith exception that the evidence from a warrantless blood draw can still be used if the officer was acting in objectively good faith.

  If you are a defendant and have faced an unlawful search or seizure, let us advise you as to your rights and the next steps. Call us at (615) 784-4800.

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Step-Parent Adoption 101

 
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Blended families are sometimes hard to navigate. The goal of the courts is to keep families intact. However, that is not always possible or the best scenario. Some biological parents make the decision that it would be in the best interest of the child for him or her to be adopted by their step-parent. In Tennessee, children may be adopted by a step-parent in a couple of ways.
  
  A biological parent's legal rights regarding and claim to a minor child must be terminated before a child may be adopted. This may be done involuntarily by a court or the parent may consent to the termination. In the case of involuntary termination, the court will look at whether the parent has abandoned the child, whether the parent has provided for the child, and whether the parent has established a relationship with the child, among other factors. In the case of consent to termination, the biological parent simply has to be included in the petition for adoption as a co-petitioner, along with the other biological parent and the step-parent. After all petitioners sign the petition in front of a notary, the petition may be filed with the court and a court date may be set.
   
   It is important for all parties to understand the results of termination of parental rights. The parent whose rights are being terminated will not be responsible for future support of the child, but will be responsible for any child support arrears owed before the adoption is finalized by a judge. The parent will also have no claim in the future to any property, inheritance, or benefits of the child. Alternatively, the child will no longer be entitled to any claim to any property, inheritance, or benefits of the parent.
   
   Once the adoption is finalized, the step-parent will be responsible for the child until the age of 18. At the request of the parties and upon approval of court, the child's last name may be changed to the last name of the step-parent.
   
   Step-parent adoption is a fairly easy process. In Tennessee, the required home study, 6 month waiting period and adopting parent class may be waived by the courts. If you are considering a step-parent adoption, contact us for help. We would be happy to assist you in the process. (615) 784-4800.
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