Kicking And Screaming in Tennessee
This entry was posted on 6/28/2007 12:29 AM and is filed under uncategorized.
Kicking and Screaming in Tennessee Legal Considerations in Moving from the Marital Residence because your Therapist told you too or other good or not so good reasons.
First, you need to read the below article. The consequence of moving out or staying in the marital house comes up in the majority of serious Memphis divorces. It is also one of the hardest questions to answer precisely. The first issue one must address is grounds for divorce in Tennessee. Tennessee divorce law requires if both parties do not agree to acceptable terms for divorce that one party desiring the divorce prove that one or more statutory grounds exist for a divorce. There are two ground implicated in leaving the marital home; firstly that of abandonment, secondly desertion for over a year.
The first is the one that must be studiously considered due to lack of a considerable period before the ground would be implicated. The ground also and this is often forgot provides that there must be a willful failure to provide. A spouse seeking to leave and avoid giving grounds should therefore render non-token support during the absence. Reading the prior article on evidence, that support should be provided in documentable form preferably cancelled checks. This can be difficult for a non-economically dominant spouse who may have to rely on the just cause exception to abandonment. Even an economically dominant spouse should document the reasons for leaving as well as support; remember this is an unpredictable wide brush system. Again, evidentiary and the general broad systemic view considerations come into play.
First, the system has a distrustful view of psychologists and experts, especially when no concrete evidence of a recommendation exists before the event. I have had several clients tell me their psychologists recommended XYZ. That brings up a difficult conundrum of getting that both believed and into evidence.
Softies that they are, wouldn't psychologists be inclined to say they recommended some course of action more strongly than they really did to help their client? A lot, of lawyers and judges, certainly suspect as much. Secondly, getting psychologist's opinion into evidence after the fact requires either a deposition or live testimony, both of which are terribly expensive and cut into the funds available to pay the legal dream team. If only counselors would give out these recommendations to clients on official letterhead stating that they frequently make such recommendations, that written recommendations as such are their standard practice, and stating potential negative risks of not leaving the marital home. The counselors need to do such before any action by the client and without being asked. This will allow the lawyer to get such statements into evidence much more easily.
Moving beyond grounds into the money and property division aspect. The effects of moving out on alimony are largely as above. Grounds increase alimony. Moving out rarely looks good, with a thoughtful pre-moving letter from a psychologist it looks vastly better. The ideal, of course, is to have the spouse sign the letter on the bottom agreeing with the proposed course of action and stating that possession shall have no effect in any potential divorce. On property division, it should in theory have little or no effect on the monetary amount. It will effect who keeps the residence if the court does not order it sold and the equity divided.
Since all potential divorcees should be aware of their soon to be decreased standard of living, this can lead to the strategy of moving out so the other party is stuck trying to dispose of a too large marital home while the other spouse gets compensated with liquid assets. Who keeps the children will have much more importance when a party moves out. Frequently, if a residence is not sold if there are minor children the Court will lock up the non-custodial and residential parent's share until the residence is sold.
Sometimes that can even occur without children. So moving out can be a real risk in situations where the marital home represents the lion's share of marital assets and it would be impossible to compensate with other assets. Once you move out, getting back in will rarely be what the courts order without children. If something works why change it? The exception is relocation due to physical domestic violence. Then the court will frequently order the offending party to a different location. I would strongly urge anyone to consult with a lawyer before moving out. It is a strongly fact specific situation. If a therapist urges that course of action, then get a written recommendation before you do so. Ideally, the therapist will give you one without prompting and as a regularly conducted activity.
