Family Practice
August 2002 Newsletter for the TBA Family Law Section
In this issue
From the chair
From the immediate past chair
Family law section leadership
The W-2 as roadmap for Tennessee Child Support Guideline Income
Guidelines presumption in high income cases changes
Getting the new laws
TBA Family Law Section Child Support Committee update
From the chair
According to the members of the Tennessee Bar Association, they expect the TBA to provide high-quality CLE, communication, and advocacy. Over the next year, the Family Law Section will make every effort to continue to improve on all of these fronts.
Barry Gold of the Chattanooga Bar will spearhead the sections CLE efforts in his capacity as chair-elect. The Parenting Plan Update CLE is scheduled for August 27 in Memphis, August 28 in Nashville and August 29 in Knoxville contact TBA to register. Also, Barry Gold is planning a very exciting technical CLE program including topics of utilizing and preparing financial experts in complex asset cases, utilizing and preparing psychologists in primary residential parent disputes, and law practice management. We will also co-sponsor a seminar with the ADR section on Collaborative Law. More details will come soon. Plus, Barry Gold will coordinate our sections on-line CLE efforts. For an example of Family Law Section on-line CLE, please see the Parenting Plan Overview seminar from Judge Don Ash and Kenneth M. Jackson, described on the Internet at: http://www.tennbaru.com/Classrooms/Parenting/IntroParent.htm
Stuart Wilson-Patton of the Nashville Bar will head the sections efforts in communications, including editing our Family Practice newsletter, as secretary/treasurer. We hope to continue to solicit and publish relevant, useful, and timely information from our membership to our membership. Also, we would like our material to be readily available at the TBA web site for easy and quick reference. We need more opinion pieces. Finally, we are trying to obtain more activity updates from the American Bar Associations Family Law Section and local bar associations family law sections.
Kendra Armstrong of the Memphis Bar has agreed to serve as our membership committee chair to develop methods to increase membership. With greater membership comes greater resources to achieve our objectives.
Volunteers are needed to help with on-line CLE, writing Family Practice articles, and the Membership committee. Please call Lynn Pointer at the Tennessee Bar Association at 615-383-7421 (or e-mail at lpointer@tnbar.org) or Miles Mason at 901-527-5522 (or e-mail at mmason@cronemason.com) and let either of us know how you would like to be involved with one or more of our activities. Because there are so many activities, there are unique and important opportunities available for any Family Law Section member choosing to become involved.
The Family Law Code Commission, led by Mary Francis-Lyle, continues to work hard with the TBA and assist with its efforts to address important issues with the Tennessee General Assembly. Jean Crowe heads the child support committee and is discussing several important issues as described in her memo in this newsletter. Amy Amundsen heads the alimony committee and recently completed the Alimony Bench Book, which will soon be available for purchase from the TBA. Also, she recently completed sponsoring excellent CLE at the Annual Convention in Chattanooga on alimony.
Marlene Eskind-Moses, chair of the TBA FLS for the most recent year, did a tremendous job building on the sections momentum. So many activities for this year have already been planned and organized that this years success will be the result of her efforts. It is our goal to continue that upward trend.
Feedback We need everyone to voice his or her thoughts on the Family Law Section regarding what can be done to improve our profession and laws. Because family law is state-law driven, the Tennessee Bar Association Family Law Section is in a unique and wonderful position to make a difference.
Miles Mason Sr.
Miles Mason Sr. is chair of the Tennessee Bar Association Family Law Section. He is a member of Crone & Mason PLC, Memphis. His e-mail address is mmason@cronemason.com
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From the Immediate Past Chair
I have greatly enjoyed serving as chair of the Tennessee Bar Association Family Law Section this past year and am most grateful for the tremendous support that I have received. Two informative continuing legal education programs were presented. Many thanks to Miles Mason Sr., for producing the high quality business valuation seminar with Dr. Shannon Pratt and Chris Mercer. We also thank Amy Amundsen and her committee for producing the alimony seminar and text which will be extremely useful for the bench and bar.
Mary Frances Lyle again served as chair of the Tennessee Family Law Section Code Commission. With the assistance of Steve Cobb and the entire commission, the changes sought in the code were accomplished. Among them were the following:
1. The alimony in futuro statute now includes the death of the recipient as a terminating factor.
2. Alimony can now be paid through wage assignment.
3. A defaulting spouse can be exempt from mediation in a default divorce.
4. The mutual injunction that is issued with the filing of a divorce complaint on fault grounds does not apply to third parties.
5. Individual Retirement Accounts are distributable like any other asset in a property division pursuant to divorce.
My sincerest thanks goes to Greg McMillan for all his efforts as immediate past chair and again to Miles Mason Sr. for producing such enlightening newsletters. Allan Ramsaur and Lynn Pointer provided invaluable administrative and supervisory support. I have no doubt that our section will flourish this coming year under the able leadership of Miles Mason Sr.
Marlene Eskind Moses graduated from Tulane University with a bachelor of arts and a masters of social work. She has been in private practice working mainly in the areas of family law, mediation and arbitration in family law, and probate law having graduated from the Nashville School of Law in 1980. She is a principal in the association of Eisenstein, Moses, & Mossman.
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Family law section leadership
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Officers
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Chair:
Miles Mason Sr., Memphis
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Chair-Elect & CLE Planning:
Barry Gold, Chattanooga
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Immediate Past Chair:
Marlene Eskind Moses, Nashville
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Secretary/Treasurer & Newsletter Editor:
Stuart Wilson-Patton, Nashville
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Section Membership Committee Chair:
Kendra Armstrong, Memphis
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Section representatives
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Eastern Section:
David L. Valone, Knoxville
Shelburne Ferguson, Kingsport
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Middle Section:
Steve Douglas Gibson, Ashland City
Robert Ryan, Nashville
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Western Section:
Amy Amundsen, Memphis
Steve Anderson, Memphis
Kendra Armstrong, Memphis
Mike McWherter, Jackson
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The W-2 as roadmap for Tennessee Child Support Guideline Income
by Robert Vance, CPA, CVA, CFP
The IRS form W-2, Wage and Tax Statement, can often prove to be a simple roadmap for determining an employees income for Tennessee Child Support Guidelines purposes. However, dont be fooled by its apparent simplicity. The W-2, if not read correctly, does not always reveal the unknown and known sources of employment income as defined by the guidelines. Per the guidelines, the definition of income is:
Gross income shall include all income from any source (before taxes and other deductions), whether earned or unearned, and includes but is not limited to, the following: wages, salaries, commissions, bonuses, overtime payments, dividends, severance pay, pensions, interest, trust in-come, annuities, capital gains, benefits received from the Social Security Administration, i.e., Title II Social Security benefits, workers compensation benefits whether temporary or permanent, judgments recovered for personal injuries, unemployment insurance benefits, gifts, prizes, lottery winnings, alimony or maintenance and income from self-employment. Income from self-employment includes income from business operations and rental properties, etc., less reasonable expenses necessary to produce such income. Depreciation, home offices, excessive promotional, excessive travel, excessive car expenses, or excessive personal expenses, etc., should not be considered reasonable expenses. In kind remuneration must also be imputed as income, i.e., fringe benefits such as a company car, the value of on-base lodging and meals in lieu of BAQ and BAS for a military member, etc.1
All income from any source (before taxes and other deductions), would seem to be a no-brainer an all- encompassing definition of a persons cash inflow. But, the term income can mean one thing to a CPA and W-2 preparer and another to an attorney trying to interpret the document in order to set child support. Income is conventionally thought by CPAs to be taxable compensation or earnings of some type. Attorneys and the guidelines generally consider the term income to be cash flows available to the employee regardless of the purpose for payment. W-2s report gross income in one of its boxes, and can document other payments made to the employee for items like business expense reimbursements and moving costs.
Practice Tip
Because the W-2 is a much more complex reporting document than it appears, understand that employers or their accountants in preparation make many unintentional errors. Do not necessarily rely upon the form as presented. For employees with a more complex compensation structure, an attorney should discover the expense reimbursement policies and retirement plans available to the employee, then trace those items to the W-2.
Start your analysis with the most commonly used items on the W-2 Boxes 1, 3 and 5, Wages Tips and Other Compensation, Social Security Wages and Medicare Wages, respectively. Box 1 reports the taxable wages, salary, commissions, certain expense reimbursements, etc. (hereinafter wages) the employee will be required to report on his form 1040 as income for that year. It will not include any amounts for elective salary deferrals, (i.e. pre-tax deductions.) The most common examples of elective salary deferrals are contributions to 401(k) or Simple IRA plans. Note that most companies match some percentage of an employees pay or contribution to a retirement plan and deposits the cash or company stock into the employees separate account. This type of fringe benefit does not have to be reported on the W-2, although it may appear in Box 14. The match could also be considered Guideline income since it is a monetary balance the employee can access usually after a vesting period.
Practice Tip
Social Security Tax (6.2 percent rate) and Medicare Tax (1.45 percent rate) are collectively known as FICA (total rate of 7.65 percent), not one or the other separately. These taxes are deducted from an employees pay at these rates, subject to certain limits as explained below. An employer matches the withheld tax dollar-for-dollar for a total tax paid in of 15.3 percent. The W-2 will only report the employees withheld portion.
Box 3 reports the wages subject to Social Security Tax withholding at the 6.2 percent rate, up to the maxi-mum wage base. For 2001, the wage base is $80,400 for a maximum tax of $4,984.80; for 2002, the base is $84,900 for a maximum tax of $5,263.80. Generally, Box 3 reports all of the items found in Box 1, but does not deduct the elective salary deferrals. Note that certain government employees and clergy are not subject to Social Security tax and will not have an amount reported in Box 3.
Box 5 reports the wages subject to Medicare Tax withholding, which are generally the same as those in Box 3, without the maximum wage base. The elective salary deferrals are not deducted from Box 5 and, since there is no maximum Medicare wage base, Box 5 is the most accurate of the three boxes in determining the employees gross income from employment. An employees Box 5 will be higher than Box 3 and possibly Box 1 if his wages exceed the maximum wage base and he participates in a 401(k)-type plan.
A simple example will illustrate all of these points. An employee, Joseph Jones, earned $140,000 in 2002 and elects to have $5,000 deducted and contributed to his 401(k) plan. He has no federal tax withheld (he lives dangerously.) No fringe benefits.
The W-2 reporting is as follows:
Box 1 $135,000 (Wages)
Box 3 $84,900 (Soc. Sec. Base)
Box 4 $5,263.80 (Soc. Sec. Tax)
Box 5 $140,000 (Mcare Wages)
Box 6 $2030.00 (Medicare Tax)
Box 12 $5,000 (401(k) code D)
In this example, Josephs net take home pay is $127,706.20 ($140,000.00-5,263.80-2,030.00-5,000.00); the guideline income is $140,000. The elective salary deferrals should be considered part of Mr. Jones gross income since the deduction was elective and would have been included in gross tax-able income if Congress had not decided to make this particular paycheck deduction a pre-tax item.
Practice Tip
Photocopy both sides of a W-2. The backside may include instructions and explanations of any codes that might appear in Box 12. These codes can provide a wealth of in-formation about income, reimbursements, deductions and fringe benefits that may or may not be included in Boxes 1, 3 and 5.
The Trouble with Fringe Benefits and Expense Reimbursements
An employee fringe benefit increasing in popularity is the §125 Cafeteria Plan. This IRS-qualified paycheck deduction allows for a pre-tax deduction from income for particular personal expenses that would probably otherwise not be tax deductible to the employee. A typical cafeteria plan deduction is medical insurance, which could add up to several thousand dollars. The amount of the Plan deducted from pay will generally not be found in Boxes 1, 3 or 5, (or anywhere else for that matter) and could be considered Guideline income since it is also elective.
Employer expense reimbursements and allowances can also be a source of income for Guideline purposes. An employees out-of-pocket business expenses and employer paid moving expenses may be reported in Boxes 1, 3 and 5, however, the payments may qualify for non-reporting on the W-2 de-pending on the method of payment and documentation. In most circumstances, the obligee spouse will know if the obligor makes a profit on expense reimbursements.
Practice Tip
The reporting of expense reimbursements and allowances is a source of confusion, thus many employers fail to include them properly on the W-2. A quick call or a subpoena issued to the companys benefits department will reveal their reimbursement and W-2 reporting policies.
Reimbursements could also satisfy the all income from any source Guideline criteria. Under certain conditions, the IRS considers these payments to be taxable income includable on the W-2 depending on the discretion the employee has over the use of the funds. Since the dollars are paid to the employee to reimburse him for ordinary and necessary business expenses or for moving, which could be quasi-business related, many practitioners might not consider them as income. To illustrate, a salesman may use her car to travel from customer to customer and she is reimbursed for the mileage costs, but does an attorney usually receive a stipend for his expensive business suits or commuting costs to and from home? All are necessary to conduct business. All persons that work incur some sort of personal expense as a condition of employment. Will the attorney be hit for support on income that he ultimately will use to buy a new suit and tie? Yes. Should the salesman be hit for support on reimbursed mileage payments she will ultimately use to buy gas? Perhaps.
The W-2 can be an effective roadmap that summarizes income for Tennessee Child Support Guideline purposes and other important measures in a divorce but you can make a wrong turn and end up in a bad neighborhood if you read it incorrectly. Of course, there is no substitute for a thorough interview and full financial analysis of the subject, along with a little common sense. The W-2 is a roadmap that can lead the attorney to the right side of the tracks, but it also contains alleys and side streets just waiting for a missed turn.
1. Rules of Tennessee Department of Human Services Child Support Services Division, Chapter 1240-2-4 Child Support Guidelines, ¶1240-2-4-.03 (3)(a), Oct. 1989 (Revised)
Robert Vance is a certified public accountant, certified valuation analyst and certified financial planner with Robert Vance & Associates, CPAs and Consultants in Memphis. He has been admitted as a court-qualified expert in the Circuit Court of Tenn. for the 30th Dist. at Memphis, Chancery Court of Tenn. at Memphis, Chancery Court of Tenn. at Dyer County and Chancery Court of Haywood County, Tenn. for the 28th Judicial District at Brownsville and testified at numerous depositions, bench trials and jury trials. He can be contacted at (901) 684-7474 or wrvcpa@cs.com
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Guidelines presumption in high income cases changes
by Stuart Wilson-Patton
At the end of the 2001 Legislative Session, the Legislature amended the Tennessee Child Support Guidelines to shift the burden of proof in high income cases. Under the prior law, when the net monthly income of the obligor parent exceeded $10,000, the court could consider a downward deviation from the guidelines if the obligor parent demonstrated that the percentage applied to the excess of the net income above $10,000 per month exceeded a reasonable amount of child support based upon the best interests of the child and the circumstances of the parties. The court was allowed to require that sums paid above the percentage applied to the net income above $10,000 be placed in an educational or other trust fund for the benefit of the child. Tenn. Comp. R. & Reg. §1240-2-4-.04(3). See Nash v. Mulle, 846 S.W.2d 803 (Tenn. 1993). The 2001 amendment provided that in such cases, the obligor parent would not pay any child support on net monthly income in excess of $10,000 unless the obligee parent or the child could prove that the additional support was reasonably necessary.
The amendment was adopted as Section 20 of Senate Bill 1668 and has been codified as Tenn. Code Ann. §36-5-101(e)(1)(B). It provides as follows:
(B) Notwithstanding any provision of this section or any other law or rule to the contrary, if the net income of the obligor exceeds $10,000 per month, then the custodial parent must prove by a preponderance of the evidence that child support in excess of the amount, [calculated by multiplying the appropriate percentage set forth in the child support guidelines by a net income of $10,000 per month], is reasonably necessary to provide for the needs of the minor child or children of the parties. In making its determination, the court shall consider all available income of the obligor, as required by this chapter, and shall make a written finding that child support in excess of the amount so calculated is or is not reasonably necessary to provide for the needs of the minor child or children of the parties.
Acts 2001, Public Chapter 447, Section 20.
The practical impact of this amendment is that unless the custodial parent demonstrates that the additional support is reasonably necessary, there is a cap on the amount of support to be ordered in high income cases. Unless the burden is met, there can be no educational or other trust created under the statute. Arguably, the courts still retain the common law authority to create trusts even in cases where the obligors net monthly income is far less than $10,000. See State ex rel. Stewart v. Lockett, 2002 WL 121636 (Tenn. Ct. App. filed Jan. 30, 2002). To date, there are no appellate decisions interpreting the recent amendment to the statute.
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Getting the new laws
With the Internet, finding and downloading new laws are easy. Discussed here are some of the new laws and how to find them. Public chapters are included with references to the scanned documents found on the web in the Adobe Acrobat format. First, go to the Tennessee Secretary of States Public and Private Acts page found at: http://www.state.tn.us/sos/acts/acts.htm. From that page, next load up the particular Public Act described below and find your new law. The authors intent is to provide a very short summary for quick reference only.
1. 2002 Public Acts, Ch. 565, amended Tenn. Code Ann. §36-4-106, excluding automatic injunctions from applying to named third-parties.
2. 2002 Public Acts, Ch. 616, amended Tenn. Code Ann. §36-6-101(e)(3), allowing courts to punish failure to attend parenting seminars by contempt.
3. 2002 Public Acts, Ch. 629, amended Tenn. Code Ann. Sections 37-2-403, 37-2-409, 37-2-411, and 37-2-415, replacing term of Planned Permanent Living Arrangement for Permanent Foster Care and encouraging early placement.
4. 2002 Public Acts, Ch. 630, amended Tenn. Code Ann. §36-1-102(42), for adoption purposes, adding siblings to the list of related persons.
5. 2002 Public Acts, Ch. 646, amended Tenn. Code Ann. §36-3-601 and §36-3-602, addressing proper venue for protection orders.
6. 2002 Public Acts, Ch. 651, amended Tenn. Code Ann. Sections 36-5-101(a)(2)(B), 36-5-101(a)(4)(A), 36-5-101, 36-5-501(j), 50-2-105(b), 36-6-409(4), 36-4-121(b)(2)(A), 36-5-101(a) clarifying alimony obligations in certain situations, classifying IRA as separate property, and granting wage assignments for alimony obligations.
7. 2002 Public Acts, Ch. 666, amended Tenn. Code Ann. §36-3-617, allowing for filing of petitions for order of protection without filing fee or other related cost.
8. 2002 Public Acts, Ch. 674, amended Tenn. Code Ann. §36-5-116 and §36-5-120(a), requiring state agency to provide monthly accounting on receipts and distribution of child support payments.
9. 2002 Public Acts, Ch. 677, amended Tenn. Code Ann. §36-6-404(a), exempting parents divorced prior to the new parenting plan statute who are entering an agreed order from complying with the new law.
10. 2002 Public Acts, Ch. 769, amended Tenn. Code Ann. §10-7-504, designating that documents filed other than those forms promulgated by the Supreme Court for obtaining a protective order be filed under seal with listed state agencies also having access.
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TBA Family Law Section Child Support Committee update
by Jean Crowe
The child support committee of the Tennessee Bar Association Family Law Section met on June 11th by telephone conference. Present were Stuart Wilson-Patton, Barbara Broersma, Steve Cobb, Jim Martin, and Jean Crowe. There was a brief discussion regarding the income shares model for child support. Jim Martin stated that he would like to see the income shares model implemented in Tennessee because he believes clients perceive the income shares model as much fairer than the percentage guidelines. Jim suggested that if clients believed the child support order was fair they would be more likely to a child support as ordered. Stuart Wilson-Patton stated that his research did not support that conclusion. Barbara Broesma stated that implementation of the income shares model would cost the state so much that the state simply could not afford it and Steve Cobb supported that statement by saying that anything that cost the state any appreciable amount of money this year was not likely to pass.
The committee decided to turn its attention to problem areas in the current child support guidelines. After some discussion, the committee agreed to look into six areas where courts have had problems applying the guidelines, where the Legislature is involved, or where the guidelines seem to lead to an equitable results. These areas are:
(1) other children and how they should be considered;
(2) high income cases;
(3) adjustments in the amount of child support being correlated closely and directly with the time spent with the noncustodial parent;
(4) treatment of travel expenses for an out-of-town noncustodial parent;
(5) income of the custodial parent; and,
(6) how to remove financial incentives from the time allocated for visitation.
Each member of the committee agreed to work on one of these areas and bring back to the committee research and proposals to deal with the problem. Since several members of the committee were unable to meet in July, the committee decided to have its next meeting on August 13 at 5 PM.
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Child support payment
by Stuart Wilson-Patton
Notices
Since October 1, 1999, in response to a Congressional mandate for centralized child support collections, the State of Tennessee has been processing child support payments in well over one hundred and fifty thousand additional cases. There are several advantages to this system for everyone involved. First, for those paying parents who pay through the State, there is no longer any processing fee. Those who continue to pay through the local court clerks office are still subject to a 5 percent processing fee on all child support payments. Second, employers who are subject to wage assignment orders for employees who owe support now have one central location in each state to which to send money. Third, there has been greater efficiency and cost savings for everyone because of the centralization and automation of the collection and distribution of support.
Now there will soon be another advantage. The Tennessee Legislature has required DHS to provide payment information with each support payment generated by the system. Beginning in April 2002, this information was included on each check stub and it informs parents of details such as, the amount of the current payment, the date on which the payment was issued, and the total of all payments issued during the current year. Payment information is broken down for each case. The Tennessee Legislature has just elected to change to monthly notices. Acts 2002, Public Chapter 674. Beginning in August 2002, each parent who receives support payments through the State (State Distribution Unit in Nashville) will receive a monthly notice of collection activity. It will show them the payments processed on their case for the entire month and provide a year-to-date total for all support payments processed. Information will be broken down for each case. It will also show if any money was retained by the state and, if so, it will give a reason why it was retained. The purpose of these notices is to help make it easier for parents who receive
support to keep track of the payments they receive. This is especially helpful for parents who receive support payments on more than one case.
Histories
One significant advantage of paying through the State is having a reliable record of child support payments. Under Tennessee law, the Department of Human Services child support payment records are prima facie evidence of payment. Tenn. Code Ann. §24-7-121. These records are also admissible into evidence as non-hearsay, self-authenticating documents. This avoids the payment disputes that are so common in direct pay cases. It provides the parties a reliable record of what was paid and when. The goal is to reduce the number of payment disputes that courts have to decide. Of course, such disputes do still sometimes arise.
Whether you are representing a paying parent or a parent who is receiving support payments, you may want to obtain a payment history on the case. There are several ways to do this. The most common method is to request such a payment record from the clerk of the court that issued the support order. Prior to Oct. 1, 1999, when most support payments were processed by Tennessee court clerks, this was often the only way to get such information. For records of payments made prior to 1995 or that were made to the court clerk, it may still be the only option. It is still a viable option, even for cases where the support is no longer being processed by the court clerk. Virtually, all court clerks have access to the child support payment information on the State computer system. They can print this payment information for you upon request as it is a matter of public record.
For cases where the support payments are being made to the State, there are several other ways to obtain payment information. First, it is available upon request from the statewide toll free Customer Service Unit at 1-800-838-6911. Second, if it is a IV-D case in which child support services either have been or are being provided through the local child support enforcement office, you should be able to get payment information from that office. They also have access to the payment records on the State computer system which are generally a matter of public record. Third, if you have access to the Internet, you can now obtain payment histories on line. DHS offers such information at http://www.tennesseeanytime.com if you have your clients Social Security number and the TCSES (Tennessee Child Support Enforcement System or State computer system) case number. If it is a IV-D case, the TCSES case number should be on the latest court order or if not, you can obtain the number from the statewide toll free Customer Service Unit at 1-800-838-6911. You can customize the payment history you need through the website. It will automatically display the payments processed in the current month. You can obtain a payment history for the past six months or even for all payments made (generally back to 1995). Paying parents can obtain a record showing the date a payment was received, the amount received, the amount of any processing fee deducted, the amount of child support paid and whether they have been given credit for the payment. The history automatically provides the total amount paid, the total amount of processing fees and the total amount of child support credited. Parents receiving payments can obtain a record showing the date and amount of each payment received, the amount sent to the parent and whether the check has been cashed. It also automatically provides a total amount of support sent to the parent for the same time frame as the report.
Mr. Wilson-Patton is a Senior Counsel for the Tennessee Attorney Generals Office. He is a 1986 Honors graduate of the University of Tennessee, College of Law. He is a member of the TBA Family Law Code Commission and of the TBA Family Law Sections Executive Council.
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10 things you wish youd told your client
NOT to do
by Barry L. Gold
Isnt the practice of family law challenging enough, without having to learn all our lessons the hard way?
A close friend of mine is fond of reminding me that experience is the best teacher, but the tuition is mighty high.
Like most family law practitioners, Ive paid my share of tuition over the years. In the interest of sharing some of these lessons and hopefully, sparing others some of the tuition costs Ive compiled a top 10 list.
This top 10 list is not a to-do list. On the contrary; its a dont-do list, consisting of the things you wish you had remembered to tell your client NOT to do.
I confess to having learned each and every one of the pointers on this dont-do list, the hard way. That is to say, I actually had a client (or clients) run afoul of one or more of these top 10 donts. Some clients even had the dubious distinction of being multiple offenders.
Several of the pointers on the list may strike you as too obvious or silly to justify discussing with your family law clients. And you know, thats exactly how they struck me, too right up until I had to pay a little tuition
So heres the list of 10 things you wish youd told your client NOT to do. Below each item is an explanation. The explanations are written in first person narrative form, as if you, the lawyer, were speaking directly to your client.
1. Dont communicate directly with opposing counsel.
You have hired me to represent you, and I take that responsibility seriously. Now that you have retained me, opposing counsel is not permitted to communicate directly with you, except in those very rare instances when I give him/her express permission to do so. It is my job to communicate with opposing counsel. You hired me to serve as your representative, advisor and advocate; please dont undermine my efforts by attempting direct contact with opposing counsel. Dont write, e-mail, phone, fax, or otherwise attempt to communicate with opposing counsel. Opposing counsel is ethically bound not to directly communicate with you anyway, and all you will accomplish by attempting such communication is to signal to the opposition that you are agitated, emotional, out-of-control, or unable to contact or communicate effectively with me.
If you arent satisfied with my services, and we cant resolve your dissatisfaction, the solution is to get new counsel, not go behind my back to contact opposing counsel. If you go behind my back and directly contact opposing counsel, you are wasting the fees you are paying me, and you are, in effect, representing yourself.
And you remember what they say about the person who represents himself, dont you?
2. Dont sign anything without first consulting me.
Okay, maybe thats a bit strong, but lets err on the side of caution. Theres a lot at stake here: You have retained me because you are involved in (or anticipate becoming involved in), a dispute/mediation/arbitration/litigation. Regardless of the specifics of your case, its an undeniable fact that your legal rights, duties, liabilities, and obligations will be directly impacted by the documents you sign. For example, if you are embarking on (or defending) a divorce case, you must be careful about acquiring (or divesting yourself of) assets/liabilities. If the divorce involves grounds other than irreconcilable differences, you and your spouse will be bound by a statutory restraining order, as well as such other orders as the court may impose. Your actions will be scrutinized, your conduct will be questioned, and you will be operating under legal and tactical constraints that did not previously come into play. In short, you do not have carte blanche to deal with your income, property, possessions, business interests, etc., as you deem fit.
In addition to the scrutiny you will be facing, remember that the act of affixing your signature to a document almost always has important legal consequences. Until you and I have conferred and agreed on how to proceed, I dont want you signing (i) agreements or contracts (whether formal or informal), particularly if your spouse or spouses lawyer prepared it; (ii) anything that might obligate you to pay (or guarantee payment of) new debt, or refinancing/extensions of existing debt; (iii) anything that might have the effect of transmuting separate property into marital property; (iv) State or Federal income tax returns; (v) letters to your spouse/former-spouse/significant other/lover; (vi) changes of beneficiary designation or cancellation of insurance; or (vii) anything else which may negatively impact your case.
Help me to help you. Remember that my power to do pales in comparison to your power to un-do. Confer with me before you sign anything; it may be too late to un-do the harm afterward.
3. Dont violate a court order.
You may disagree with a court order; you may think it arbitrary, inadvisable, or unfair. You may believe that an order will be overturned on appeal, or that the order is (or should be) unenforceable.
You are entitled to your opinion. If you take issue with a court order in your case, wait until you and I have left the courthouse, and are back in the privacy of my office, before you express that opinion.
If you want me to ask the court to reconsider, set aside, or modify an order, or if you want to appeal an order to a higher court, I will discuss with you the procedures available for requesting such relief.
What you are not entitled to do, and what you must not do, is violate a court order. You must strictly comply with all of the courts orders; to do anything less puts you at risk of being held in contempt, and may well tank the rest of your case. In some circumstances, a finding of contempt may even bar you from putting on your case. Contempt can subject you to monetary penalties, and even land you in jail.
TTheres no faster, more effective way to alienate the court, than to intentionally violate the courts orders. Dont do it
4. Dont make informal, out-of-court agreements that attempt to alter/amend/modify/ignore/child support or custody.
No matter how well-intended; no matter how carefully crafted; no matter how many times notarized; it boils down to just this: Out-of-court agreements which purport to modify existing child support/custody orders arent enforceable. Period. You must obtain the courts blessing, in the form of an order, before any such agreement is valid and enforceable. The parties arent free to work out a side-deal, or some other out-of-court understanding, that departs from the existing court order. Side-deals are unenforceable, may subject you to contempt, and can create serious problems for you down the road. If you feel that you have worked out a fair modification of an existing court order, lets discuss it. If the proposed agreement complies with Tennessee law (e.g., the Tennessee Child Support Guidelines), then we can present it to the court for the courts approval.
5. Dont chat about your case.
Think of it as a kind of Miranda warning for family law litigants: Whatever you say can and will be used against you in a court of law. There are only 3 people in the world you can speak with in confidence about your situation: (1) your attorney (2) your clergyman (3) your psychiatrist or psychologist. NO EXCEPTIONS. Conversations with your lawyer, clergyman, and mental health professional are confidential and generally protected by privilege. Anyone else you talk to family members, friends, co-workers, spouses, significant others, the lady next to you on the bus can be compelled to testify about your conversation. It may feel satisfying in the moment to bend your buddys ear and fill him/her in on how awful your spouse is, but keep in mind that those words may very well come back to haunt you.
Even after your case is final, show some dignity and discretion. Remember that you dont enhance your own self-esteem by bad-mouthing your spouse. Think about it. If your spouse is as bad as you now claim, how could you have been so stupid to marry this person in the first place? Besides, you may well be violating Tennessee law (Tenn. Code Ann. §36-6-101) and your Permanent Parenting Plan by downing your spouse (each parent has the right to be free of unwarranted derogatory remarks made about such parent or such parents family by the other parent to or in the presence of the child).
6. Dont contact witnesses without first consulting with me.
Dont misunderstand Im grateful for your help in getting your case ready, and you will often save yourself some legal fees by handling some of the leg work involved in preparing your case for hearing.
But please dont contact witnesses or potential witnesses without first consulting with me. This is especially true if the witness is not really a known quantity, that is to say, the witness may turn out to be uncooperative, adverse, or even hostile.
Statements you make to a witness (or statements which the witness claims you made) can be used against you. The truly hostile witness might even claim that you coerced, harassed, bribed, or threatened him/her, or that you tried to induce the witness to lie. Even if the witness is not adverse, he/she may be more receptive to speaking with me, the lawyer, than with you, the litigant.
I may also be able to determine from speaking with the witness that we really dont want to subpoena the witness to court, or conversely, that the witness has information that may be more helpful than what we originally contemplated.
Lets review your potential witness list together, discuss the knowns and unknowns, and then decide who will contact each potential witness.
7. Dont delay telling me bad news.
I cant help you, and cant advocate effectively for you, unless I know what is going on. This means that when it comes to your case, I need to know the good, the bad, and the ugly.
I understand the natural reluctance to share bad news; you may be embarrassed, you may be afraid, you may be ashamed, you may be upset, and you probably dont feel like talking. You may have ignored my advice, broken a promise, broken the law, or done something you agreed not to do; in any case, youre now facing some bad news.
Unlike fine wine, bad news typically does not improve with age. The sooner you make me aware of the problem, the sooner I can be in a position to deal with it. I cant help you if Im not apprised of the problem. Dont delay telling me bad news.
8. Dont give away our strategy.
You are paying good money for me to help you with your case. An essential part of the service I render is to analyze the facts of your case, consider the applicable law and the equity of your situation, assess the availability and credibility of the anticipated proof (witnesses, documents, exhibits), and reach a decision as to how best to proceed based upon this information (and a host of other factors).
The process of strategizing is an ongoing process, subject to frequent review and reconsideration as facts and information become available (or unavailable). This process is involved in every aspect of your case: from the initial pleadings, to the discovery process, settlement negotiations, mediation, trial, post-trial motions, and even an appeal.
I want and need your input in this process. Its your case, and I want us to be on the same page throughout the representation. Our strategy discussions are critical, and they are protected by the attorney-client privilege
unless you choose to disclose them.
Lets put this bluntly: Unless you want to cripple your case, never, ever give away our strategy.
Youre probably wondering, who could be so naïve (or just plain dumb) as to give away his/her lawyers strategy for handling the case? Isnt that like giving the other team a copy of your teams playbook, right before the big game?
Its astonishing how often (and how unwittingly) a client will reveal his/her lawyers strategy. Often the disclosure comes in a fit of anger, right after negotiations have collapsed: Well, I didnt want this to get ugly, but since you arent willing to be reasonable, the gloves are coming off; were going to drag your ex-whatever into court to testify about the time that (fill in the blanks)
Sometimes the disclosure is more subtle: You think youre so smart, but my lawyer tells me that you cant prove youre entitled to share the XYZ Corporation stock because you havent listed a records custodian on your witness list
Or the disclosure may come when the client is trying to negotiate a resolution directly with his/her spouse: Well, I know weve valued the house at $150,000 on my asset and liability statement, but were willing to back off that number to get the case settled.
My favorite was the client who actually told his spouse that if we dont get this settled, my lawyer is going to call you as the very first witness at trial, to catch you by surprise. He said youd never be expecting it.
9. Dont move without complying with the relocation statute.
Divorced/divorcing parents with minor children, please take this to heart.
Get a copy of Tenn. Code Ann. §36-6-108, the Tennessee Parental Relocation statute.
Read it. Read it again. Put it in a safe place, for future reference.
If you are contemplating relocation, or if you have decided to relocate, and you will be moving more than 100 miles from the other parent (or anywhere outside the State of Tennessee, regardless of how far from the other parent), we need to discuss your obligations under the Parental Relocation statute.
The more lead time we have to discuss your compliance with the statute, the better. It is far better (and less expensive) to comply with the statute, than it is to deal with the consequences of non-compliance.
10. Dont overlook the value of mediation.
Within the last five years (primarily due to Tennessees new parenting laws), the use of mediation in family law disputes has become the norm.
Some lawyers tell their clients that mediation is a pro forma step in the divorce process; its one of those inconvenient things you have to get out of the way, so that you can get your day in court. Ive actually heard a lawyer tell his client that its just mediation; you dont have to agree to anything and we can leave after a few minutes, just so long as we can tell the judge that we showed up.
Its a serious mistake to treat mediation as a procedural hurdle that has to be grudgingly cleared, in order to get to the real business of litigating your case. If you do so, you are sabotaging what could well be the best way of resolving your case (i.e., the fastest, most amicable, least expensive, and least contentious resolution).
Mediation is not some fad or trend. Its a well-documented, well-recognized method for attempting to resolve disputes by taking a collaborative, rather than a combative, approach. Many clients find that mediation provides a unique, confidential opportunity to tell their story and express their concerns, without being subjected to cross-examination and without having to prepare for or deal with the formalities, constraints, and risks associated with testifying in court.
Even if you dont settle your case at the mediation, you may well lay the ground work for ultimately settling some or all of the case.
Dont overlook the value of mediation. Approach it as an opportunity to resolve some or all of your case, without the expense, aggravation, risk, and formality, of the courtroom.
Barry Gold is a partner with the Chattanooga law firm of McKoon, Billings, Gold & Presley PC, practicing primarily in family law and civil litigation. He received his bachelors degree, magna cum laude, and law degree, cum laude, from the University of Georgia where he was elected to the Order of Barristers. He was admitted to practice law in Georgia and Tennessee in 1983, and is a member of the ABA, TBA, and Georgia State Bar family law sections. Gold is a frequent lecturer on family law topics before a variety of professional groups, and he is also a Tennessee Supreme Court Rule 31 family law mediator.
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ABA Family Law Section update
by Sharon L, Corbitt
I have had the privilege of serving the American Bar Association Section of family law as its chair since August 2001. My term of office will conclude this August at the Annual Meeting in Washington, D.C. Reviewing the accomplishments of our section over the past year has reminded me once again how much involvement in the Family Law Section can enhance ones individual practice. The opportunity to network with nationally known practitioners in and of itself is an incredible opportunity. However, working with others in effecting national change and determining the face of the future of family law is indeed even more exciting.
In September 2001, the section of family law had the privilege of being one of the co-sponsors of the Third World Congress on the Rights of Children held in Bath, England. A number of our section members were involved in the program either as speakers or moderators. That was only the beginning of a number of events and accomplishments by the section and its members during this past year. I will enumerate only a few of them:
* The section has been actively involved in lobbying efforts at Congress regarding HR 333, the Bankruptcy Bill.
* Section member Harlan Tenenbaum received the Angel of Adoption Award from Congress.
* The section was involved in the creation of the ABA Unified Family Courts Project.
* In spite of the Sept. 11, 2001 attacks, the section of family law was one of the few sections that held a well-attended, successful meeting. That meeting took place in Vancouver, British Columbia just weeks after the attacks.
When other sections were having to cancel or having poor numbers, this shows the level of interest and dedication of our members. This meeting included a very productive joint meeting between the Council of the Section of Family Law and the governing body of the Canadian Bar Association Family Law Section.
* Mark Sullivan and the Military Law Committee spearheaded the Sections 9-11 response by drafting and making available to the public handouts for military personnel about to be mobilized.
* The Child Custody Pro Bono Project of the Section of Family Law gave its first grants totaling $40,000. This project also has held several successful CLE and education sessions and is hosting a Presidential Showcase CLE at the ABA Annual Meeting.
* During this year, the section recognized outstanding individuals, among them Justice Florence Murray, retired Justice of the Rhode Island Supreme Court, for her role in bringing the Unified Family Courts concept into reality; Dave Thomas, founder of Wendys restaurants, who will be given a posthumous award for his adoption advocacy efforts through the Dave Thomas Foundation; and Louise B. Raggio will be honored for her lifetime achievements, including a law career spanning nearly five decades and including numerous awards, among them the prestigious Margaret Brent Award.
* The section has worked tirelessly with the National Conference of Commissioners on Uniform State Laws (NCCUSL) and other sections within the ABA on the Uniform Parentage Act.
* The section designated a representative to serve on the Center for Children and the Laws Drafting Committee for Standards for Attorneys Who Represent Child Welfare Agencies.
* The section sent a representative to work on the Drafting Committee for NCCUSLs Child Witness Testimony by Alternative Methods Act
* The section continued to communicate section news and events to enrolled section Members through its listserv.
* The section co-sponsored NCCUSLs successful 2001 Amendments to the Uniform Interstate Family Support Act.
* The section co-sponsored NCCUSLs Model Mediation Act which was adopted by the ABA House of Delegates.
* The section sent a delegation to ABA Day in Washington in May where our representatives lobbied on issues such as the Bankruptcy Bill and the re-authorization of the Personal Responsibility Act.
* The publication board produced the first Collaborative Law book. The author, Pauline Tesler, is being honored by the Section of Dispute Resolution, as one of the countrys Problem Solving Lawyers of the Year.
* The section produced a number of successful publications, among them a Client Handbook on Dispute Resolution; The Lawyers Business Valuation Handbook authored by Shannon Pratt; and the highly successful Attacking and Defending Marital Agreements.
* Active section member and council member Susan Wolfson was honored by the Connecticut State Bar.
These are but a few of the many things that have been going on within the Family Law Section during the past year. I encourage those of you who are not members to join. Our member publications alone are worth the price of membership. The Family Advocate is published quarterly and is a practical, hands-on magazine. Our more scholarly publication, the Family Law Quarterly, includes the often-cited Law in the Fifty States issue that is widely quoted.
It has been interesting to be on the front lines as the changes in family law have unfolded over the years. We have moved from surrogacy to a number of conception alternatives; we have seen the trend change from sole custody to joint, and are now seeing a re-examination of at least some aspects of shared parenting. We have watched mediation go from an idea to an often successful reality; we have seen the advent of parent education programs and parent coordinators. And, we have seen expansion of the concept of Unified Family Courts to reality in a number of states.
To keep in touch, stay tuned to the ABA Family Law Section! For more information, please feel free to contact our section director Lynn Miller at (312)988-5619, or at millerl@staff.abanet.org.
Thank you for this opportunity to address your Tennessee Bar Association Section of Family Law. n
Sharon L. Corbitt is the chair of the American Bar Association Family Law Section. She previously served the section as chair-elect, vice-chair, secretary, CLE chair, and liaison from the Family Law Section to the ABA Commission on Racial and Ethnic Diversity in the Profession and to the Commission on Women. Sharon was voted Outstanding Family Law Attorney by the Oklahoma Bar Association Family Law Section in 1993 and again in 1995. Sharon is a past chair of the Oklahoma Bar Association Family Law Section.
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