What documents should I have in place before I die? There are four primary end-of-life documents the average person should have in place. The first and most recognized is a Last Will and Testament. Upon your death, this document will dictate who you want to settle your affairs after you die. That individual, known as the Personal Representative, will then follow the directions you've provided in your will for how your property and belongings should be distributed. Your will can also include a testamentary trust provision, which would dictate how any inheritance given to minor children upon your death should be managed on their behalf. Finally, a will can also contain guardianship language for minor children. While guardianship language in a will is not binding on the court, such language is usually followed if done correctly. The next end-of-life document everyone should have in place is a Durable Power of Attorney. Powers of attorney allow the person listed as POA to make many different types of decisions on an individual's behalf, such as financial and real estate decisions. Typically, a general power of attorney no longer has effect upon an individual's incapacity, whether physical or mental. However, a durable power of attorney extends beyond that incapacity and remains in place until that individual's death. There are two primary types of durable POAs. The more traditional durable power of attorney is a "Springing Durable Power of Attorney." This means that this type of POA does not take affect until the individual has become incapacitated. The other type of durable POA is a "Durable Power of Attorney Effective Immediately." This means that the POA takes effect at the moment it was signed, and remains in effect through the incapacity and until the individual's death. There are advantages and disadvantages to both, so discuss your particular situation with your attorney. The third document everyone should have prepared is an Advance Care Plan. This is also known as a "Living Will." Sometimes referred to as "pull-the-plug language," an Advance Care Plan will determine what decisions your healthcare providers will make about your medical care in the end stages of your life. There are a variety of scenarios this document contemplates, such as whether or not you want to receive life support or the assistance of a ventilator if you are unable to breath on your own. Every individual's decisions are unique and their choices often surprise their loved ones. One of the most loving things an individual can do for their loved ones is to not force them to make these decisions on their own. It's a relatively simple document, but one that carries significant weight. The final document we recommend everyone have in place is the Appointment of a Healthcare Agent. While the Advance Care Plan above does incorporate the appointment of a healthcare agent, this document stands alone and allows another individual that you've named to make healthcare decisions on your behalf, in the event you're unable to do so on your own. While none of these documents are particularly fun to think about, it's crucial that you get them in place before you need them. All too often, loved ones who have every intention of taking care of these needs pass away before ever doing so. In many cases, what they leave behind becomes a point of contention between family members who disagree about what should be done, rather than focusing on fond memories. In short, the time to take care of your end-of-life planning is now! For more information about how to create a valid will, check out our additional Education Center post here.
Domestic Assault, Orders of Protection What is an Order of Protection? An Order of Protection is an order signed by a judge or magistrate, which is intended to protect victims of domestic abuse, sexual assault, or stalking. While you may be tempted to reach out to the person who filed an Order of Protection against you, it is essential that you have no contact with him or her. If an Order of Protection has been granted by a judge or magistrate against you on a temporary basis (ex parte), violating that Order of Protection will result in your arrest and a new criminal charge. In short, you will go to jail, no questions asked. So don’t do it! Who can Request an Order of Protection? An Order of Protection can be requested by anyone who is a “domestic abuse victim.” T.C.A. §36-3-601 defines domestic abuse victim as adults or minors who: Are current or former spouses; Live together or who have lived together (including roommates); Are dating or who have dated or who have or had a sexual relationship; Are related by blood or adoption; Are related or were formerly related by marriage; or Adults or minor children of a person in a relationship that is described above. What is the Process to Obtain an Order of Protection? An alleged victim fills out a Petition requesting the judge or magistrate to issue an Order of Protection. The judge or magistrate reviews the Petition and will likely grant an ex parte Order of Protection. The ex parte Order of Protection is a temporary Order of Protection that prohibits the other person from contacting the petitioner for any reason whatsoever. A hearing before a judge on the ex parte Order of Protection will be set within 15 days of the issuance of Order for a final determination. If the request is not granted ex parte, a hearing will still be scheduled in front of a judge to make a final determination. At the hearing, the court will either extend the Order of Protection for up to one year or it will be dismissed. At the hearing, the petitioner must prove by a preponderance of the evidence, or more likely than not, that the facts written in the Petition occurred. The court will hear from the Petitioner, Respondent, and any witness brought by the parties. The respondent then has the opportunity to put on proof to defend against the allegations being made by the petitioner. An Order of Protection can have serious ramifications, including: Ordering you to leave your home; Affect your custody or visitation rights with your children; Prevent you from owning or possessing firearms; Impact your ability to rent an apartment or home. If you have an Order of Protection pending against you in Nashville or Middle Tennessee, it's important that you hire an attorney immediately to defend your rights.
Who can be charged with Domestic Assault? In Tennessee, you can be charged with domestic assault for committing assault against anyone deemed a domestic abuse victim. Who is a domestic assault victim? Tennessee law has a broad definition which goes far beyond just a romantic relationship. A domestic abuse victim can include any of the following: Current or former spouses Roommates People who are dating or had a previous sexual relationship Anyone related by blood or adoption Current or former in-laws An adult or minor child of a person that is in a relationship with anyone included in the above categories Is it their word against mine? Simply put, yes. If there are no other witnesses, it is the alleged victim’s word against yours. When an officer is called to a scene for an allegation of domestic assault, most police departments have a policy which states that the preferred response is to make an arrest. The officer’s goal is to determine who the “primary aggressor” is, then place that person under arrest. If the only witnesses are the alleged victim and the accused, the result is a case of “he said, she said.” Penalties for domestic assault can be severe. Initially, any domestic assault arrests require the accused to be held for a minimum of 12 hours in jail before they are able to post bond. This alone is a traumatic experience for most people accused of domestic assault. A conviction for misdemeanor domestic assault can result in possible jail time of up to 11 months and 29 days, result in the loss of your ability to ever possess a firearm, and the conviction can never be expunged. Given what’s at stake when you are charged with these types of crimes, it’s important to hire an attorney immediately to begin preparing your defense.
An uncontested divorce in Tennessee is a divorce where both spouses agree, or come to an agreement, on all of the major terms of the divorce. Generally, an uncontested divorce will be on the grounds of irreconcilable differences, or in some cases, for being separated for more than two years. An uncontested divorce is the most amicable type of divorce and can save spouses both a lot of time, money, and heartache. However, this does not mean that uncontested divorces always go as planned. Even if you meet the requirements to file for an uncontested divorce, it is still recommended that you hire a lawyer. A qualified divorce attorney can ensure that the legal requirements for a divorce are met while still keeping your best interests in mind. Divorce attorneys have experience negotiating divorce settlements, known as Marital Dissolution Agreements, and even in an uncontested divorce, there can be disagreements that require a compromise before the divorce can be finalized. An experienced divorce attorney can take the stress of navigating the complex legal system out of your hands and ensure all of the correct documents are filed and served properly. Having a lawyer to review the final paperwork before submitting it to the court ensures that you fully understand the consequences of the divorce agreement you are entering with your spouse.
Under Tennessee Code Ann. §55-10-401, “It is unlawful for any person to drive or to be in physical control of any automobile…(1) while under the influence of any intoxicant, marijuana, controlled substance, controlled substance analogue, drug, substance affecting the central nervous system, or combination thereof that impairs the driver's ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of oneself that the driver would otherwise possess; (2) the alcohol concentration in the person’s blood or breath is eight-hundredths of one percent (0.08%) or more . . .” So after you’ve been charged with a DUI first offense, what does this mean for you? In Tennessee, a first offense for a DUI is punishable by a minimum of 48 hours to a maximum of 11 months and 29 days in jail. However, if your BAC is higher than a .20, the minimum jail sentence increases to 7 days. You may also be required to complete an Alcohol Safety School and Victim Impact Panel program by the Court. In addition to jail time, there is a minimum fine $350 for a DUI first offense, in addition to court costs. Your driving privileges will also be revoked for one year. However, you can apply for a restricted license with an ignition interlock device if your DUI was an alcohol related offense. If your offense was only drug related, you can apply for a restricted license with geographic restrictions. In addition to the criminal penalties, you may be required to purchase expensive SR-22 insurance, and the DUI could show up on background checks later on. It is important that your criminal defense attorney verifies that the police followed the proper law and procedures during the DUI investigation and arrest. Any mistakes made by the officers could affect whether or not there was sufficient probable cause for your arrest, or whether any evidence obtained can be used against you. How DUI cases are handled varies greatly depending upon the county your case is in and the local practices of the District Attorney’s office. That’s why it is so important to hire a criminal attorney that knows Tennessee laws and understands local practices in order to receive the best possible outcome for your DUI first offense. If you’ve been charged with a DUI, call our offices at (615) 649-0110 to ensure you receive a fair outcome in your case. Click here for more DUI related education center posts.
Should I agree to take a breath or blood test? Once an officer has determined that he or she has probable cause to believe that you are driving under the influence, the officer may ask you to submit to a chemical test to determine your blood alcohol concentration (BAC). This typically occurs after field sobriety tests have been conducted (see post on field sobriety tests). Chemical tests are conducted in the form of either a breathalyzer test or a blood test. The results of these tests could help you prevent an arrest or provide a defense for your case, if your BAC is below 0.08. On the other hand, you could also be voluntarily giving prosecutors evidence which will be used to convict you. In fact, if your BAC result is above 0.2, your statutorily required minimum jail sentence may increase from 48 hours to 7 days. So, can you refuse to submit to these tests? Yes. You have the right to refuse to allow an officer to conduct breath or blood tests. However, there will be negative legal consequences if you choose to do so. Under the Tennessee Implied Consent Law, if you refuse a breath test, there is an automatic penalty against you. If you have not previously violated the Implied Consent Law, the penalty is the loss of your driver’s license for one year. You will be able to apply for a restricted license during that period, but you will be required to pay for and install an ignition interlock device on your car. However, this is considered a civil penalty and not a criminal conviction. It is also important to remember that the arresting officer must inform you of these consequences before any test is administered. If an officer fails to inform you of these penalties, your attorney may be able to suppress the results of any breath tests you performed. Regarding blood tests, however, things get a little more complicated. Until recently, an individual who refuses a blood test could not be charged with an implied consent violation. Our state and Federal courts have long since recognized that the level of intrusion for a blood draw is substantially higher than that of a breath test. However, a recent change in Tennessee law (T.C.A. §55-10-406) provides that someone who refuses a blood test can now be charged with an implied consent violation. The problem with this new law is that it is in direct contradiction to Tennessee Court of Criminal Appeals holding in State v. Henry, 539 S.W.3d 223 (Tenn. Crim. App. 2017). The Court in Henry held that Implied Consent does not justify a warrantless blood draw under the U.S. and TN constitutions. Thus, while the statute may have changed, it is likely not enforceabe. Nonetheless, any officer who believes there is probable cause for a DUI arrest can easily obtain a search warrant for a blood test, and should do so. Such a search warrant would absolve any implied consent violation. Likewise, any blood evidence that is obtained without consent and without a search warrant should be suppressed and inadmissible, under most circumstances. Even when a search warrant is obtained, time is usually your friend in these matters. There is no harm in requiring an officer to follow the law before obtaining your blood sample. Additionally, blood tests are typically a more reliable and more precise measurement of BAC, if the blood draw and lab tests are performed accurately. This is great to know, but what do I do? The problem with answering this question is that it’s a judgment call, and an impaired person may not exercise the best judgment. As a general rule, if you are suspected of DUI and you honestly believe you have not had too much to drink and you do not feel impaired, it may be beneficial for you to submit to either a breath or blood test. Even if you are slightly over 0.08, a low result may assist you in reaching a favorable settlement in your case, depending on the jurisdiction you are arrested in. However, if you know that you had too much to drink and shouldn’t have been driving, it does nothing but hurt your case to voluntarily submit to a chemical test. You would only be making matters worse for yourself. It goes without saying, but the best advice I can give when I’m asked this question is to avoid driving while impaired in the first place, and take a Lyft or Uber. An impaired person can rarely be trusted to make the best decisions when it counts the most.
What Are Miranda Rights? Miranda rights, or warnings, were established when the United States Supreme Court decided the case of Miranda v. Arizona, which held that officers had to inform defendants of their Fifth Amendment rights against self-incrimination. The rights read as follows: “You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” However, this commonly used television phrase comes with many misconceptions and confusion as to who has those rights and when they apply. An experienced criminal defense attorney can help if these rights have been violated. Who needs to be read their Miranda rights? Police officers should read individuals their Miranda rights if they intend to interrogate them or question them while in custody. However, an individual being placed under arrest does not necessarily need to be read their rights. When do Miranda rights need to be read? Contrary to popular belief, Miranda rights do not need to be read upon being arrested. Police officers only need to provide a Miranda warning if they intend to interrogate the person while in custody. They may read them at any point before interrogating the individual. How do you know if you are “in custody”? The basic rule of thumb for determining whether or not an individual is in custody is whether or not they are free to leave. If you’re not sure, ask the officer if you are free to leave. If the evidence shows that you were questioned or interrogated by law enforcement after you were not free to leave, that questioning would violate your Miranda rights. What happens if the Miranda rights are not read? Unfortunately, if Miranda rights are not read, this does not mean that the individual cannot be prosecuted. However, it may mean that any statements that the individual makes to the police officer prior to Miranda warnings will not be allowed to be used in court against them. An experienced criminal law attorney can help you navigate whether your Miranda rights were violated and how that violation may affect your case. Can an individual waive their Miranda rights? Of course, an individual can waive their Miranda rights by explicitly signing that they are waiving their rights. An individual can also implicitly waive their rights by foregoing the warnings and voluntarily communicating with law enforcement. However, our attorneys advise against doing this without an attorney being present to ensure you have not undermined your defense to allegations made against you. Contact our criminal defense attorneys at Ryan C. Davis Law, PLLC today at 615-649-0110 to schedule a free consultation and find out if your Miranda rights may have been violated.
How Long Do I Have to Live in Tennessee Before I Can Get Divorced? Generally speaking, you must reside in Tennessee for at least 6 months before you can file for divorce in Tennessee. How Long Does a Divorce Take? For a divorce where there are no minor children involved, there is a mandatory 60-day “cooling off” period after one spouse files the Divorce Complaint before your divorce can be finalized. Thus, the quickest that a divorce without children can be completed is 60 days. If the divorcing couple has minor children, the cooling off period is extended to 90 days. These cooling off periods are intentionally designed to slow down divorces so that divorcing couples can contemplate whether or not getting divorced is what they actually desire to do. In reality, even amicable uncontested divorces often take a few months to complete, provided your attorney is being thorough and ensuring your divorce is handled properly. On the other hand, a contested divorce can take anywhere from a few months to several years to complete, depending on a variety of factors. Can I Get an Annulment? Rarely. In an annulment, the court treats the couple as if they were never married. An annulment may be available if the marriage was entered into illegally, such as one of the parties already being married or if the marriage was based on fraud or duress. But typically most marriages don’t meet the requirements for an annulment. What is Mediation and When is it Necessary? Mediation is an out-of-court process for divorcing spouses to settle issues related to their divorce, in lieu of having a trial in order for a judge to decide. A mediator, who is a trained, neutral third-party, will facilitate a conversation between the spouses to attempt to settle any divorce-related issues. Mediation is often beneficial when dealing with child custody and visitation issues. Many divorcing parties want to attempt mediation prematurely and without the assistance of an attorney. However, mediation is much more successful if the parties’ attorneys have been able to narrow down the issues that are in dispute and focus the mediation on only the most difficult issues in the case. What if My Spouse Won’t Participate in the Divorce Process? In Tennessee, if a spouse refuses to participate in the divorce after being served with a divorce complaint, there are ways to move the divorce forward. Once a party has filed and served the divorce Complaint on the other party, he or she will have 30 days to file an Answer to the Complaint with the court. If an Answer is not filed, your attorney can then file a Motion for Default Judgment, which is asking the court to grant the divorce by default. If the judge determines that the divorce papers have been properly served and there has been ample time for the opposing party to file his or her Answer, the judge can grant a Default Judgment for divorce, despite the fact that one spouse did not sign anything or participate in the divorce process. Is Tennessee a No-Fault Divorce State? Yes. Tennessee offers both fault and no-fault ground divorces. A no-fault ground for divorce essentially means that the divorcing couple agrees to the statements in the divorce complaint and are asking the court to approve their agreed-upon divorce. This is commonly referred to as an “irreconcilable differences” or uncontested divorce, meaning that the divorcing couple agrees that there is no way they can repair their relationship and thus, they have irreconcilable differences that prevents them from living together as husband and wife. This type of divorce can only be used when the divorce is uncontested, and there is no dispute as to how marital property should be divided. How Much Does a Contested Divorce Cost? It is nearly impossible to estimate the cost of a contested divorce. That is why divorce attorneys typically require retainers and bill hourly for contested divorces. For some divorcing couples navigating a contested divorce, meaning there are a few issues that the parties can’t agree upon, the cost may be just a few thousand dollars. However, for divorcing couples who are experiencing significant disagreements on matters such as property division, child custody, and alimony, there is literally no limit as to what a divorce might cost. Can I Restore My Maiden Name at the Time of Divorce? Yes, a divorcing wife may restore her last name to her maiden name as a part of the divorce proceeding, and it is very common for a divorcing spouse to do so. How Quickly After a Divorce can a Spouse Re-Marry? In Tennessee, you cannot remarry until your divorce has been final for 30 days, as there is a 30-day appeal period following the entry of the divorce decree. However, common sense would probably say to give it some time before remarrying in any event. Can I Date Someone Else While My Divorce Is Pending? Although many divorcing spouses begin dating once they are separated from their spouse, it is important to remember that engaging in a romantic relationship before your divorce is final is still considered adultery. Depending on the issues in your case, this could have an impact of the outcome of your divorce. In short, don't start dating until you are divorced.
How Alimony is Calculated in Tennessee? Divorce is never easy, and one of the more complicated aspects of a divorce can be the determination of alimony. In Tennessee, alimony (or spousal support) is awarded primarily based on a disadvantaged spouse’s financial need, and the other spouse’s ability to pay. Types of Alimony in Tennessee Tennessee recognizes four types of alimony, each with a different purpose: Transitional Alimony: This is probably the most common form of alimony in Tennessee. Transitional alimony is awarded when one spouse needs time to adjust to the financial changes following a divorce. It's usually short-term and helps the recipient transition to a new lifestyle. Transitional alimony is non-modifiable, meaning that neither party can go back to court to change the amount or duration of the alimony. Rehabilitative Alimony: Rehabilitative alimony is designed to support a spouse who needs time and financial assistance to become self-sufficient or receive career training. The goal is to help the receiving spouse gain the education or training necessary to re-enter the workforce. Rehabilitative alimony is modifiable, meaning that either party can go back to court and attempt to change the amount or duration of the alimony, if the disadvantaged party needs a shorter or longer period of time to rehabilitate their finances. Alimony in Solido (Lump-Sum Alimony): Also known as lump-sum alimony, alimony in Solido is a fixed amount of money that is paid either in one payment or in installments. It is often used to balance the division of marital property. Alimony in Solido is typically non-modifiable. Alimony in Futuro: This is long-term alimony is awarded when it's unlikely that the receiving spouse will ever become financially independent. Alimony In Futuro is typically only appropriate in divorces involving marriages of long duration, and where one spouse was financially disadvantaged throughout the majority of the marriage. Alimony In Futuro is typically paid until the receiving spouse remarries or either spouse dies, and it can be modified if the financial circumstances of either party changes significantly. Factors Considered in Alimony Calculations In Tennessee, there is no set formula for calculating alimony. Instead, the courts consider a variety of factors to determine the amount and duration of the support, including: Each spouse’s earning capacity, debts, and financial resources; The education and earning potential of each spouse; The duration of the marriage; The age, mental, and physical condition of each spouse; The impact of employment on the children’s best interests; The division of marital property; The standard of living during the marriage; and Any fault or misconduct by either spouse, where relevant. Reach out to the divorce attorneys at Ryan C. Davis Law, PLLC for comprehensive legal guidance in all aspects of family law, including alimony. Call 615-649-0110 to schedule a consultation today.
What Are the Different Types of Alimony in Tennessee? Tennessee law recognizes four different types of alimony: (1) rehabilitative alimony; (2) alimony in futuro; (3) transitional alimony; and (4) alimony in solido (also called lump sum alimony). A judge may award these types of alimony separately or in combination. Rehabilitative Alimony The Tennessee statute on alimony, codified at Tenn. Code Ann. § 36-5-121, provides that rehabilitative alimony is favored. The law provides: “It is the intent of the general assembly that a spouse, who is economically disadvantaged relative to the other spouse, be rehabilitated, whenever possible, by the granting of an order for payment of rehabilitative alimony.” Thus, in a divorce, the economically disadvantaged spouse may be able to secure an award of this type of alimony. To be rehabilitated in this sense, means that the economically disadvantaged spouse receives an award that places the person to a standard of living “reasonably comparable” to the standard of living the party had before the divorce. The law further provides that an award of rehabilitative alimony “may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of a substantial and material change in circumstances.” Alimony in Futuro Alimony in futuro - sometimes called periodic alimony - is a type of alimony awarded sometimes where there is no way that a party can be rehabilitated. The Tennessee alimony statute explains: “An award of alimony in futuro may be made, either in addition to an award of rehabilitative alimony, where a spouse may be only partially rehabilitated, or instead of an award of rehabilitative alimony, where rehabilitation is not feasible.” Alimony in futuro continues until the recipient either remarries or either party dies. It often lasts for a significant period of time. However, this type of alimony is usually less than rehabilitative alimony, as there is not enough money to place the party in the same standard of living as the parties had during the marriage. Transitional Alimony Transitional alimony is a type of alimony that is provided temporarily, for a shorter time period than rehabilitative alimony and a much shorter time period than alimony in futuro. This type of alimony applies when “rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce.” In practice, transitional alimony is probably the most frequently used alimony in divorce cases in Tennessee. Alimony in Solido Alimony in solido, or lump sum alimony, may be awarded as the only type of alimony or as an additional type of alimony. It often applies when the economically disadvantaged spouse needs support to pay for attorney fees. Parties also sometimes use alimony in solido to equalize what would otherwise be an unequal division of the marital estate. Alimony in solido can be paid in one lump sum or in installments. Click here for more information on how alimony is calculated in Tennessee. Reach out to the divorce attorneys at Ryan C. Davis Law, PLLC for comprehensive legal guidance in all aspects of family law, including alimony. Call 615-649-0110 to schedule a consultation today.