May 2016 - Vol. 52, No. 5

QDRO and State/Local Government Pensions

On July 1, 2015, the General Assembly enacted new legislation that addressed the division of public employee pension plans during the course of divorce proceedings. Section 26-2-105(d)(1) of the Tenn.

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Surviving Spouses and Wrongful Death Claims

Tenn. Code Ann. §§ 20-5-106(a) and 20-5-110(a) tell us that the surviving spouse has the superior right to bring a wrongful death case.[1] Absent the surviving spouse’s affirmative waiver of that right or the circumstances discussed below, the spouse’s right trumps any right of the decedent’s executor, administrator or children to file a wrongful death action and control the litigation. But under what circumstances does a surviving spouse lose the right to bring and maintain the action?

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Remembering My Two Favorite Courthouse Square Lawyers

My friend Paul Summers is fond of saying, “There really are only two types of lawyers in Tennessee: Tall building lawyers and courthouse square lawyers.”

I’m a tall building lawyer. My office is on the 29th floor of a Memphis skyscraper. But my heart is with the courthouse square lawyers. I admire the small-town and country lawyers who counsel and help folks every day in their offices in the courthouse square.

I recently lost my two favorite courthouse square lawyers. They were Howard and Claude Swafford of Jasper, Tennessee.

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Tennessee’s only full-time ABFDE-certified full-time document examiner. Formerly with U.S. Postal Inspection Service Crime Laboratory. Certified by American Board of Forensic Document Examiners. American Society of Questioned Document Examiners. Substantial civil, criminal and trial experience. Thomas Vastrick, 6025 Stage Road, Suite 42-182, Memphis, TN 38134; (901) 383-9282.

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Judicial Finality and Legal Malpractice

For Whom Montgomery Bell Tolls … Not for Tennessee Lawyers

Montgomery Bell was an antebellum Tennessee industrialist who began his remarkable career at the age of 16 as a tanner’s apprentice and then a hatter. He soon broadened his activities from selling to manufacturing hats at his factory at Lexington, Kentucky, where he employed 20 workers. By 1802 he had relocated to Tennessee and purchased James Robertson’s interest in Cumberland Iron Works 20 miles south of Clarksville.

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Letters of the Law

Readers React to ‘We’re All Going to Die’

I really enjoyed Eddy Smith’s article about the magic age of 50 [“We’re All Going to Die (and Other Happy Thoughts of an Estate Planner Turning 50,” April 2016 Tenn. Bar Journal]. I recall that some time in the distant past I, too, turned 50. It can often be a time of reflection and self-assessment, but the most important thing is the achievement itself.

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The Tennessee Supreme Court appointed former judge and Williamson County attorney Robert E. Lee Davies to the position of senior judge. Davies practices family law, personal injury and business litigation and also teaches family law at Nashville School of Law. He previously served from 2000 to 2008 as a circuit court judge in the 21st Judicial District. Senior judges are employed by the Supreme Court to hear cases in which other judges cannot serve because of a conflict, or in courts where there is a vacancy.

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A State of Confusion and a Need for Clarity

The Fallout from Culbertson I and II

In Tennessee, trial courts have a duty to protect the best interests of children.[1] As early as 1918, the Tennessee Supreme Court acknowledged that the state has a right “paramount to any parental or other claim[] to dispose of such children as their best interests require” and that “the legal rights of a parent are very gravely considered[] but are not enforced to the disadvantage of the child.”[2] Thus, in any proceeding requiring the court to make a custody determination, trial courts must make such determinations according to the best interests of the child.[3] This statutory requireme

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