Can My Marriage Be Annulled?

Occasionally, I get asked a question asking if a marriage can be annulled. First, I’ll explain what is an annulled marriage in Tennessee? An annulled marriage is a void marriage, or in another way of saying it, it never happened. It means there was some sort of defect in the marriage “contract” that made it invalid.

Annulment is not the same as a divorce, but there are a lot of similarities. If there are minor children, a parenting plan and support issues need to be determined. Marriage assets and liabilities need to be addressed as well. When dividing up assets and liabilities, Courts objective is to put parties back in the position they were before the marriage which is different from the objective with a divorce. There is no waiting period with an annulment case. Divorce cases in Tennessee have waiting periods of 60 to 90 days depending on if there are children of the marriage. The burden of proof in annulment cases are clear and convincing which is a higher standard than that of a divorce proceeding which is preponderance of the evidence.

What are the grounds for annulment?

  • Either party was under the age of 16 when marriage took place.
  • Prior existing marriage at the time of the marriage and defendant believed their former spouse was living when getting remarried.
  • Any other violation of the marriage act (licensing requirements, etc)
  • Refusing to cohabitate or consummate after married
  • Mentally incompetent
  • Impotency (must have existed prior to marriage)
  • Duress (I.E. shotgun wedding)
  • Fraud (calculated to induce marriage which requires detrimental reliance...exp. the woman saying she is pregnant when she isn’t so that he will marry her)
  • Being married for a limited objective (green card) is not a defense
  • Secret pregnancy at time of marriage (where another man is the biological father) 

Defenses to the grounds above:

  • If married under age and continued to cohabitate until after 18 (ratifying the marriage)
  • Consummation of the sexual relations
  • If there was evidence of mental incompetence in a will context and there was a ratification during some type of lucid moment
  • If the ground was impotence, but the plaintiff had prior knowledge of impotency, it CANNOT be used
  • Duress? It can be ratified if the person continues to cohabitate long enough
  • Fraud? Cannot rely on fraud if you knew about/found out and continued to cohabitate

 

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The Tennessee statute for annulment is TCA 36-4-119. However, it’s case law that ultimately drives the annulment laws. If you have specific questions as to how any of this relates to your given situation, please contact me, Will Cartwright, at will@cartwrightlawllc.com

 

 

Does it matter who files divorce first?

Occasionally, I’ll get the question of "Does it matter who files divorce first?" The quick answer is that it can create a few advantages to file first, however, in the long run it really doesn’t matter. I’ll explain starting with some potential advantages of filing first.

  • Filing first means you get to do some planning on the front end such as researching and finding the right lawyer for you. Once the other spouse is served with the Complaint, they will have 30 days to respond in Tennessee. This can be a lot of stress and anxiety that you won’t have to go through by first planning and filing.

  • The person filing first becomes the “Petitioner” or the “Plaintiff” and is then responsible for drawing up the initial Complaint which sets out the allegations and puts the other party in “defense mode” by having to respond.

  • One big advantage is if there is more than one potential jurisdiction for your divorce, you get to choose when filing first. It will place the burden on the other party to move jurisdiction.

  • By initiating first, you have the opportunity to start protecting marital assets.

  • In a trial situation, the person who files first gets to have the first word and usually the last. This means that they can set the stage and create some momentum in their favor. They get to define the issues and can characterize the behavior of the other party.

  • If there is a concern that the other party may take children far away from you or sell marital assets, it is much harder for them to do so once a divorce is filed. Once a divorce is filed in Tennessee, there is an automatic restraining order from these things. It is there to keep things as stable as possible until the divorce can be finalized.

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One disadvantage is in the initial filing fee:

The person filing must pay the initial filing fee for the divorce. In Tennessee, the initial divorce filing fees are usually much higher than a responding counter complaint. The filing fee differs from County to County in Tennessee ranging from around $200 to around over $300 depending on the county.

IN THE LONG RUN:

The divorce process goes on normally, no matter who files first. Both parties remain on equal terms in the legal system, and no one suffers any loses whatsoever.

If you or anyone you know have questions on these topics, please contact Will Cartwright, family law attorney in Murfreesboro, Tennessee.  

What can you do if Mother or Father isn't paying child support?

It is all too common that one parent doesn’t pay the child support obligation. The question becomes; “What can be done?” Tennessee courts have the power to punish for failure to comply with their orders. This comes down to contempt.

Civil contempt empowers the courts to use their powers in circumstances involving “the willful disobedience or resistance of any order….” TCA 29-9-102 (3). Our Supreme Court has explained elements of a successful civil contempt claim as follows:

First, the order must be “lawful.” Second, the order alleged to have violated must be clear, specific, and unambiguous. Third, the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order. Finally, the person’s violation of the order must be “willful.”

It is the “willful” part that these claims get argued. Typically, the parent having to pay will admit that they haven’t been paying the support obligation, but the argument will likely be that they can’t pay it for not having the ability to do so.

Upon a finding of civil contempt a court can imprison an individual to compel performance of a court order. This remedy is only available, however, when the parent owing the support has the ability to comply with the order at the time of the contempt hearing. If the contempt consists in omission to perform an act which the person has the power to perform, the person may be imprisoned until such person performs it. In that situation, it is said the person has the “keys to the jail” and can do away with the contempt by complying with the court’s order.

Now the burden will be on the person obligated to pay to show the inability to pay. When that person testifies under oath that he/she is without financial ability to conform there will be a hearing or trial to decide.

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What is common is that the person owing the support cannot just use the argument that they quit their job or something in the like thereof. So, if that person has intentionally placed themselves in that position, that person will likely still be found to be in contempt. Now, it is only when that person has the ability to perform that he/she can be confined until they do perform. If he/she is wholly unable to perform, they can be punished only by fine not exceeding $50 or imprisonment for not more than 10 days, or both. (citing the criminal contempt statute).

If this is you or someone you know, an experienced family law attorney is required to help navigate through the legal procedures. 

Cartwright Law, LLC

Termination of Parental Rights by Failure to Provide a Suitable Home

Tennessee Code Annotated section 36-1-113 (G)(1) provides for termination of parental rights based upon the ground of abandonment. There are several definitions of abandonment that appear in Tennessee Code Annotated section 36-1-102 (1)(A). Relevant to this article is T.C.A. 36-1-102(1)(A)(ii) defines abandonment as follows:

The child has been removed from the home of the parent or parents or the guardian or guardians as the result of a petition filed in the juvenile court in which the child was found to be a dependent and neglected child, as defined in § 37-1-102, and the child was placed in the custody of the department or a licensed child-placing agency, that the juvenile court found, or the court where the termination of parental rights petition is filed finds, that the department or a licensed child-placing agency made reasonable efforts to prevent removal of the child or that the circumstances of the child’s situation prevented reasonable efforts from being made prior to the child’s removal; and for a period of four (4) months following the removal, the department or agency has made reasonable efforts to assist the parent or parents or the guardian or guardians to establish a suitable home for the child, but that the parent or parents or the guardian or guardians have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child to such a degree that it appears unlikely that they will be able to provide a suitable home for the child at an early date.  The efforts of the department or agency to assist a parent or guardian in establishing a suitable home for the child may be found to be reasonable if such efforts exceed the efforts of the parent or guardian toward the same goal, when the parent or guardian is aware that the child is in the custody of the department.

To clarify this up a little, if DCS has petitioned your child or children dependent and neglected and has put them in custody of someone else, you have four (4) months to make “reasonable efforts” establish a “suitable home” or DCS (State) could terminate your parental rights for failing to do so.

Now there are several key words in this statute that you should pay close attention to. First, notice that “DCS or a child-placing agency” has an obligation here to also make reasonable efforts to prevent the removal of the child and to make reasonable efforts to assist the parent or parents to establish a suitable home for the child. In a recent Tennessee Court of Appeals case upheld a prior ruling that the State has to do more than provide a list of potential housing resources to meet this reasonable burden. If one or both parents have a mental condition, it’s even more responsibility on the State to help the parents. However, if a child is removed from parent due to a prior severe abuse finding, the DCS may be relieved from their reasonable efforts burden.

Secondly, what is a “suitable home?” I can tell you that it is more than just an appropriate physical structure. Although, the physical structure is important; this also includes such things as a drug free environment and free of domestic violence. A suitable home is one that can provide care and attention to the child. Any of this or the like in the home will make it a home that is not suitable no matter if you secured a mansion as your home.

Lastly, what are “reasonable efforts” on the part of the parent(s)? With the simplest answer, the Court will look to such factors as efforts to secure stable work which will provide the means to get and keep a suitable home. The parent will need to be able to show that they are working or applying for work on a regular basis. Applying to one or two jobs in a four-month span will not cut it.

The legal standards of proof upon the State is clear and convincing evidence. This is a high standard meaning there is absolutely no doubt that this has taken place. Once this standard has been proven, the State will then need to show that it is in the best interest of the child not to be with the parent(s). Click here for some of the best interest factors.

If you are facing a challenge with termination of abandonment of any kind, you’ll need dedicated legal representation who will advocate for your rights. If you have specific questions on this topic or any other child custody questions, please email to will@cartwrightlawllc.com or call 615.473.1006.

 

Will Cartwright

Cartwright Law, LLC

Murfreesboro, TN

Can a Parent Move with a Child Out of Tennessee?

This question comes up often in family law cases. It can come up during a divorce proceeding or after a divorce has occurred and there is already a parenting plan (visitation schedule) ordered from the Court. It can come up with parents who have never been married, but now one of the parents wishes to move out of the state of Tennessee. This situation is governed by Tennessee Code Annotated 36-6-108:

The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:

  1. Relocation does not have a reasonable purpose

  2. The relocation would pose a threat of specificand serious harm to the child that outweighs the threat of harm to the child of a change of custody; or

  3. The parent’s move for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.

What this all means is that the parent who spends to most time with the child gets a presumption in their favor that it is okay to relocate with the child. If the “other” parent has an issue with the relocation, then the “other” parent would have to show one of the three scenarios listed above.

 

What is an example of a reasonable purpose? The most common one is probably relocation for work. However, it still isn’t clear cut. If you are working at McDonalds in Murfreesboro, TN and you are moving to work at McDonalds in another state; then the “other” parent would most likely when the argument that there is no reasonable purpose.

Subsection (2) is comparing the harm suffered by relocating the child in relation to changing custody to the “other” parent. The Court would be looking at what is in the best interest of the child in the two comparisons.

Subsection (3) is pretty much spells it out in plain language. If the custodial parent is relocating just to be mean to the non-custodial parent, then that is not supposed to happen. Remember, the burden of proof will be on the non-custodial parent.

If you have this situation or questions concerning this situation, please call my office at 615.473.1006 or email questions to: will@cartwrightlawllc.com

If you would like to set up an office visit, we can do that as well. Consultations are of no charge and office is conveniently located in Murfreesboro, TN.