TennCare/Medicaid treats annuities in one of two ways: 1. Income or 2. Resource. In a previous blog post, RETIREMENT ACCOUNTS OF THE COMMUNITY SPOUSE, we discussed that resources are either considered countable or exempt by TennCare/Medicaid. A TennCare/Medicaid applicant can transform an annuity, or retirement account, from a countable resource into an exempt resource. However, the process to do this is both time and rule sensitive.
Kane & Crowell
Subcategories from this category:Angel Kane's Blog, Amanda Crowell's Blog, Ashley Jackson's Blog, Lindsey Waller Johnson's Blog, Bryson Eubanks Blog
Retirement Accounts Of the Community Spouse
When a married couple considers paying for long-term care with TennCare/Medicaid, they are split into two categories: 1. Institutionalized Spouse (IS) and 2. the Community Spouse (CS). The difference between the two is that the IS is applying for TennCare/Medicaid benefits while the CS is not. Under the same application, Medicaid always determines whether spousal resources are countable or exempt. As you would expect, countable resources can prevent eligibility, but exempt resources do not. Traditionally, retirement accounts, such as IRA’s and 401K’s, for the IS are always countable resources for qualification purposes. On the flip side, the CS’s retirement accounts did not count, if the CS was taking monthly payment that were equal to a required minimum distribution (RMD).
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.
As of January 1, 2019, the law has changed in regard to tax implications when it comes to alimony. A spouse who is either ordered to pay alimony or who receives alimony will no longer be allowed to claim the alimony as income or list the alimony as a deduction when it comes to taxes. Prior to January 1, 2019, the spouse receiving alimony was able to list it as taxable income and the spouse paying alimony was able to list it as a deduction, but this is no longer the case. This will apply to all alimony orders that are entered after January 1, 2019. This new change in the tax law will not apply to any Orders for alimony that were entered prior to January 1, 2019.
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.
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.
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.
When you are going through a divorce, you will hear property being described as “marital property” and “separate property.” Generally, marital property are assets which were acquired during the marriage. If property is deemed marital during a divorce, then it will be subject to division by the divorce court. Separate property can include property that was owned by you prior to the divorce, or a gift/inheritance which has been acquired during the marriage. If something as deemed is your separate property, then it will be not be subject to division by the divorce court.
If you are trying to claim that an inheritance or gift was made just to you, you will need to provide evidence of that, as your spouse may try to claim the inheritance or gift was made to the both of you. For example, if you are claiming that your parents gifted you $15,000.00 as a down payment on your house, you may want to produce bank statements or some kind of record showing that the money was gifted solely to you. If not, then the money can be considered marital property, which means it would be subject to an equitable division during your divorce.
If you are filing for divorce or have more questions regarding property division during your divorce, contact Amanda Crowell 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.
There may be many reasons that you do not want one of your children to receive any part of your Estate upon your death. You may not have a good relationship with that child, or maybe you feel like that child is better off than the rest of your children, so they do not need any part of your Estate. Whatever the reason, you are certainly able to disinherit a child in your Last Will & Testament. It is important that you have a Will drawn up if you want to disinherit a child, because you will not be able to disinherit them if you do not have one. Your Will must make it very clear that you are wanting to disinherit this child so that it does not seem like a mistake was made and you just accidentally “left them out of the Will”. Simply failing to mention the child in your Will is certainly not a good idea, as this may lead the Court to think a mistake was made or that this child was born before your Will was drawn up; therefore, the Court may think that child should be entitled to some part of your Estate. It is very important to state your intention clearly in your Will.
You do not have to state the reason you want to disinherit your child, but some people find it useful to leave a letter (separate from their Will) which states the reason that a child is being disinherited. If you do this though, make sure your letter does not contradict anything that you have written in your Will.
If you have any further questions about disinheriting a child, contact Amanda Crowell at Kane & Crowell Family Law Center at www.kane-law.com or by phone at (615) 784-4800. Let us put our experience to work for you.
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.
Going to Court can seem scary to those who have never been. Hopefully these tips will help alleviate some of your fears.
What to Wear?
This is one of the biggest questions that our clients ask if they have never been to Court. When you are thinking about what to wear to Court, you want to think of it as if you were going to a job interview. You want the Judge to know that you respect the Courtroom and that you think this process is important.
For men, it is not necessary to wear a suit but, of course, you can wear one if you want to. Men should usually wear a button-down shirt with dress slacks and nice shoes. For women, it is appropriate to wear a nice shirt with slacks, a suit, or a nice dress.
What to Bring?
You are not allowed to bring your cell phone, iPad, or laptop with you in the courtroom, so please leave them in your car when you come. You can bring your notes or a legal pad to write on if you want to take notes during the hearing.
Inside the Courtroom
You and your attorney will usually go into the courtroom together. Our office is located right across the street from the courthouse, and our Attorneys will usually walk to Court with you. If it is a day that other cases are being heard, you want to be sure to be respectful during those hearings. When it is time for your case to be heard, the Judge will call the parties and their attorneys up. The Judge will be in the middle of the courtroom sitting on the bench. You will sit on one side of the courtroom with your attorney, and the opposing party will be on the other side with their attorney. Please always be sure you are respectful to the Judge, as well as the other attorney if they are asking you questions. You should also be aware of your body language while in the courtroom. The Judge will be watching you at all times, so try not to make it known if you are frustrated (easier said than done of course).
Even if you have paid close attention during the hearing, you may still be wondering “what just happened” after Court. Your Attorney will explain to you what all happened, what the Judge decided, and what the next steps are after your hearing. You may even have questions in the days to follow the hearing, so be sure to follow up with your Attorney until you fully understand what happened in Court.
The Attorneys at Kane & Crowell Family Law Center have more than two decades of experience and are in Court daily. The most important advice we can give you is to listen to our advice and ask questions if you do not understand. Our Attorneys and staff can make an anxious situation much, much easier.
If you are filing for divorce, have a custody situation, a probate matter, or need a will or trust, contact us 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 our experience at work for you.
Along with a new year, comes new changes in the law. Many new laws take effect in 2019, including the following:
- 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.
- 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.
- 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.
- 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.
- 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.
It has been a long-standing practice in Tennessee that a person’s driver’s license can be revoked when they do not pay court costs or fines. While some may advocate for this policy as a way to make sure a person is responsible, it is completely counter-productive, as U.S. District Judge Aleta Trauger just stated in a recent ruling.
A simple misdemeanor can carry court costs and fines of $500. Someone with multiple misdemeanor convictions or a felony convictions can have fines of thousands of dollars. Many people find it difficult to pay these fines as they have had to pay for legal representation, missed work for court dates and some have served time in jail. The balance of the costs and fines continues to increase when someone isn’t able to pay. The state’s practice has been to revoke a person’s driver’s license in order to coerce them into paying court costs and fines. This practice is ineffective because, if people cannot drive, they will not be able to work and will never be able to pay their balance in full. This scenario commonly leads to a person’s license being revoked for years. As a result, many people are forced to drive without a license just to get back and forth to work, which can lead to further criminal charges such as driving on a revoked license. A new charge would also incur additional court costs and fines. This creates a cycle that many people find difficult to navigate. Judge Trauger acknowledged this in the recent ruling.
Judge Trauger ordered that the over 100,000 people who have been affected by this procedure in Tennessee can begin the process of getting their licenses back. If your license was revoked or suspended due to nonpayment of court costs or fines, contact us at (615) 784-4801 to discuss how you can have your license reinstated.
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.
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.
As of present, the Tennessee Legislature is in session, and there are a number of interesting bills that have been proposed and await debate, voting and eventual enactment or abandonment. In today’s blog post, we take a look at some of these bills that could eventually become law.
House Bill 1698 is certainly a bill to watch over the next few weeks, as it could result in notable changes to Tennessee DUI laws. The bill, sponsored by Rep. Bill Hulsey (R – Kingsport) and Rep. Frank Nicely (R-Strawberry Plains), would give criminal judges across the state the discretion to ban those convicted of DUI from purchasing alcohol. Upon first offense conviction, the judge would have the discretion to bar alcohol sales to the defendant for one year. Upon a second conviction, a judge would have the discretion to bar alcohol sales to the defendant for two years. The bill originally gave a lifetime ban of alcohol sales upon an individuals third conviction for driving under the influence, as well as made the sale of alcohol to those convicted and barred from purchasing alcohol a Class C misdemeanor. This bill was revised by Rep. Michael Curcio (R – Dickson) to remove the lifetime ban and the Class C misdemeanor punishment to sellers of alcohol. The bill is currently before the House Finance, Ways and Means Subcommittee. If passed, it could become law as soon as July 2018.
House Bill 1862 is an important bill for criminal defendants who enter into pre-trial diversion. The bill, sponsored by Rep. Raumesh Akbari (D-Shelby), Rep. William Lamberth (R-Sumner), Rep. Karen Camper (D-Shelby), and Rep. Barbara Cooper (D-Shelby), would reduce the cost of expungement for a criminal offense upon successful completion of pre-trial diversion, from $350 to $180. This bill would make it easier for defendants to have their pre-trial diverted offenses expunged and removed from their record, and ideally, less likely to suffer adverse consequences as the result of having a criminal record.
House Bill 2068 would create a new class of criminal offenses related to the false and improper marketing of alcohol and drug treatment services. Unfortunately, Tennessee has struggled with the spectre of opioid abuse, and as a result a wide variety of treatment programs (both legitimate and illegitimate) are advertised in the state. This bill, sponsored by Rep. Harold Love (D-Davidson) and Rep. Michael Curcio (R-Dickson) would create criminal offenses for the false or misleading advertising of alcohol and drug treatment facilities or giving or receiving financial incentives or benefits for being referred or referring individuals into such an alcohol and drug treatment facility. Such laws are undoubtedly designed to prevent opportunistic companies using questionable marketing tactics from taking advantage of individuals suffering from alcohol or drug dependency. The laws range in severity from Class A misdemeanors to Class E felonies.
These bills are only but a few of the many bills presently making their way through the House of Representatives and Senate. For more information about these bills, or other bills of the 110th Legislative Session, visit http://www.capitol.tn.gov/ or https://legiscan.com/TN/trends.
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 .
Every year in America, ten million (10,000,000) men and women are the victim of domestic violence.1 In 2014, 74,023 domestic violence crimes were reported to law enforcement agencies in Tennessee.2 Thousands of other incidents of domestic violence go unreported.
Law enforcement and the courts of the State of Tennessee approach domestic violence issues very seriously. Accordingly, there are a number of statutes about domestic violence that Tennesseans should be aware of.
Often, when domestic violence is alleged and an arrest is made, the individual arrested will be held in jail for a minimum of twelve (12) hours. Equally often, when such an individual makes bail and is granted release, a court will issue bond conditions which require the arrested individual to stay away from the victim. For parties who reside together, this can mean no longer residing in the same house or apartment.
In addition, those who plead guilty or are convicted of domestic assault are prohibited from possessing firearms or acquiring firearms in the future in addition to the other statutory penalties, including misdemeanor imprisonment and fines. Multiple convictions for domestic assault may result in felony penalties, including imprisonment.
Certain individuals, including victims of stalking, domestic abuse, or sexual assault may seek an order of protection from a court to prevent their attacker from coming about their person or contacting them. Individuals against whom an order of protection is issued may not possess firearms and are required to transfer any firearms in their possession to a third-party within forty-eight (48) hours of the issuance of the order.
Individuals who violate an order of protection are subject to arrest and a mandatory twelve (12) hour hold in jail. Violation of an order protection is a Class A misdemeanor, and any sentence imposed must be served consecutively to any sentence for a related domestic violence crime based upon the same factual allegations.
Attorneys at Kane & Crowell Family Law Center are experienced in both domestic and criminal matters related to domestic violence. If you are interested in information about divorce or child custody, or if you have been arrested and charged with domestic violence, call us at (615) 784-4800.
If you, a friend, or a loved one, have experienced domestic violence, you have options. Contact The National Domestic Violence Hotline at (1-800)−799−7233, or HomeSafe (for Wilson County residents) at (615) 444-8955. You can also contact the Wilson County District Attorney’s Office at (615) 443-2863 or the Wilson County Sheriffs Department at (615) 444-1412 to learn more about orders of protection.