June 21, 2016 In Auto Accident, Civil Litigation, Medical Malpractice, Personal Injury

Wrongful Death of a Child

wrongful death of a child attorney

Info From Patterson Bray About the Wrongful Death of a Child

No one should have to ever think about the wrongful death of a child. As a mother of two young children, I can’t think of anything more unbearable than the loss of a child. But according to the American Association for Marriage and Family Therapy, over 57,000 children under the age of 19 die every year in the United States.

Our law firm represents parents who have lost a child due to the fault of another person or company. The legal term for a death caused by someone else’s negligence or wrongdoing is “wrongful death.”

Who can File Suit for Wrongful Death of a Child?

In Tennessee, only certain people have the right to file a lawsuit to recover damages for the wrongful death of a child. As a general matter, the child’s parents can file suit against the responsible party. If the parents are divorced, special rules apply. Usually, the parent with “primary custody” has the right to file suit. An administrator can also file the lawsuit. Tenn. Code Ann. Section Tennessee Code Annotated Section 20-5-106 provides that the wrongful death cause of action:

shall pass to . . .the [child’s] natural parents or parent or next of kin if at the time of death [the child] was in the custody of the natural parents or parent and had not been legally surrendered or abandoned by [the parents] pursuant to any court order removing [the child] from the custody of [the parents or parent]; or otherwise to the [child’s] legally adoptive parents or parent, or to the administrator for the use and benefit of the adoptive parents or parent; the funds recovered in either case to be free from the claims of creditors.

Occasionally, due to family circumstances, wrongful death cases involving children can become very complicated. Sometimes disputes arise between divorced parents or among family members as to how the case should be handled. Also, even if you aren’t the person to file the lawsuit, you may still be entitled to recover a portion of the damages awarded. Likewise, the person who files the lawsuit may or may not be entitled to a portion of the money damages awarded. An experienced wrongful death attorney can talk with you, learn about your family situation, and advise you on your potential rights.

What are the Damages in a Wrongful Death Case Involving a Child?

Damages in a case involving the wrongful death of a child are determined on a case by case basis. A jury will look at all of the facts and circumstances and make an award. Legally speaking though, the types of damages recoverable in a wrongful death case are statutory and are set forth in Tennessee Code Annotated Section 20-5-113. The general categories are:

(1) Injuries Suffered by the Child from Time of Injury Until Death

This classification allows recovery for medical expenses, physical and mental pain and suffering, funeral expenses, and loss of earning capacity during the period from injury to death.

(2) Incidental Damages Sustained by Child’s Next of Kin

This classification of damages includes the pecuniary value of the child’s life. The “pecuniary value” of a deceased child’s life represents the value of the child’s probable future financial accumulations at the time of the child’s death. To determine the pecuniary value of a decedent’s life, a court considers the following factors: life expectancy and age, condition of health, capacity for earning money through a skill, art, trade, profession, occupation or business, and personal habits regarding sobriety and industry. The amount should then be reduced by deducting the decedent’s probable living expenses had the decedent lived.

In the case of a wrongful death of a child, the analysis is a bit different. Living expenses are the costs associated with child-rearing. In the case of a very young child, estimates of the child’s future earnings and contributions are speculative at best. For this reason, it can be helpful to have expert testimony concerning the valuation of a child’s pecuniary losses.

Loss of Consortium (Filial Consortium Damages)

Pecuniary value also includes the value of human companionship. Parents of a deceased child are entitled to recover for loss of consortium. However, these claims for loss of consortium cannot exist independently from the claim that a defendant’s negligence caused the child’s death. Thus, parents cannot recover for the sorrow and anguish endured as a result of the child’s death. Rather, the “pecuniary value” of the child’s life includes a value for the parents’ loss of consortium

In determining the amount of consortium damages, courts consider the benefits the child bestowed on the family, such as companionship, comfort, society, attention, cooperation, affection, care and love. Because it is impossible to generalize on the extent to which family members enjoy each other’s companionship and society, the measurement of a particular parent’s loss of a particular child’s consortium is decided on a case by case basis.

Punitive Damages

If the child’s death was caused by reckless or intentional conduct, parents can seek punitive damages. Punitive damages are designed to punish the responsible person and deter similar behavior.

Negligent Infliction of Emotional Distress

Depending on the facts of the case, parents of a deceased child may be able to assert independent claims for “negligent infliction of emotional distress.” An experienced wrongful death lawyer can advise you further about this and other claims you may have.

Limits on Damages in Tennessee Due to Tort Reform

As a general rule, the most that parents can recover for “loss of consortium” damages for the wrongful death of a child is $750,000. Punitive damages are usually limited to $500,000 or two times the compensatory damages, whichever is greater. One of our Memphis wrongful death attorneys can discuss your case and explain the rules on damages in Tennessee, as well as the various limitations in effect due to Tennessee Tort Reform.

Looking for a Caring and Compassionate Wrongful Death Lawyer?

If you’d like to speak with a caring and compassionate wrongful death lawyer in the Memphis or Nashville area, please call our office at 901-372-5003. We’re not your everyday law firm. We are mothers and fathers just like you and we treat our clients like family. There is never any charge for an initial consultation or meeting.

June 20, 2016 In Auto Accident, Personal Injury

Does Health Insurance Cover Injuries from a Car Accident?

insurance personal injury lawyer

Health Insurance vs. Car Insurance

Almost every state in this country requires a motor vehicle driver to carry insurance, except for New Hampshire and Virginia. Whenever you need to go to the hospital, you expect to utilize the services you pay for to cover your care. But what happens when you seek medical treatment as a result of a car accident? Does your medical insurance still cover this bill, or do you turn to your car insurance for assistance?

Which Insurance Company Covers the Bills?

This question is really quite detailed, and many factors come into play. In most cases, whoever is at fault is responsible for the medical bills. If someone else hits you and is cited for the accident, it is their insurance that is responsible for paying your medical bills. Now, let us suppose that you are hit by someone who did not have insurance coverage.

Uninsured/Underinsured Motorists

For situations where the at-fault party has little to no coverage, carrying an insurance policy known as uninsured or underinsured motorists coverage can help alleviate the stress of mounting medical bills. This coverage can allow your motor vehicle insurance to cover the medical portion of whatever the at-fault drivers could not. This can be especially important if injuries have lasting or permanent effects.

Initial Medical Costs Are Not Always Final

When it comes to a car accident and medical costs, the initial costs of treatment may not be the final total on care. Oftentimes, people do not realize how severely injured they are until days or even weeks after the incident.

Furthermore, if you have had to take time off of work due to your injuries, or have a possibly disabling condition; you may be entitled to further compensation for those damages as well. A DC car accident lawyer can stand beside you and fight for a compensation package that may be able to better recuperate damages you’ve suffered.

Why You May Need an Attorney

An insurance company wants to settle the claim as quickly and as quietly as possible. They do not want to go to court, and do not want to pay a dime more than they have to. Your best interest is not their priority; their main focus is to protect their bottom line. An attorney may be able to help combat attempts to settle your claim with a low-ball offer, expedite the settlement award process, and offer peace of mind by professionally managing all of the complexities of your case.

A top attorney should be able to examine your potential case and determine the path to compensation. They may also be able to assist in determining who is responsible for the medical bills based on your unique situation. There are always loopholes and all sorts of red tape when it comes to an auto accident; which is why having a legal adviser can be so beneficial.

Do you need a Personal Injury Lawyer?

Please call Patterson Bray for a free consultation at 901-372-5003. We are personal injury lawyers in Memphis and Nashville and have extensive experience handling car accident cases. Tell us about your car accident case and let us help you. Sign up for email notifications of our blog post!

Thanks to our friends and contributors at Cohen & Cohen, P.C. for their additional insight into car accident and personal injury practice.

June 13, 2016 In Estate Planning

Don’t be like Prince: Get a Will.

prince died without a will, memphis estate probate lawyer

Learning from Prince’s Mistake

It’s been widely reported that Prince probably died without a Will. This has left many people wondering:

How could someone rich and famous like Prince die without a Will?

Unfortunately, it is not uncommon for people, even the super-wealthy, to to die without even the simplest form of an Estate Plan. While at least one source reports that Prince’s Estate may be worth less than what people think, this surprising omission of someone of Prince’s celebrity status should give us all cause to stop and think about what might happen to our own families and hard-earned assets in the event of an untimely death.

2 Simple Reasons to Have a Will or Estate Plan

When we meet with potential clients and give basic estate planning seminars, we stress the importance of having, at the very least, a basic estate plan in place. This is important because:

1. Your wishes will be known. Have you ever tried to guess what another person wants? This is why many of us find Christmas shopping very stressful. The only way you can be sure to “get what you want” is to properly (and legally) communicate your wishes and desires. Just telling someone won’t cut it. After all, neither a judge nor your family will be able to ask you after your death.

2. You can help prevent family feuds and division. You may think your family is so tightknit that they would never quarrel over your assets after you die. You may be right, but you may also be wrong. Why take the chance? Make your wishes so clear that your family members have nothing to fight about amongst themselves after your death.

An Estate Plan is important regardless of your financial status. You do not have to be “rich” to need a Will. Even if you think you don’t have enough assets to justify planning ahead, it is likely that your possessions have real meaning to family members or friends. It is also likely that you have a larger Estate than you may realize.

2 Simple Reasons People Don’t Have a Will or Estate Plan

1. Fear of Losing or Giving up Control. Like Prince, many people like to retain complete control over their assets and business affairs. There’s not a thing in the world wrong with this. However, having an Estate Plan does not mean that you lose control! In fact, Estate Planning is a way to extend the control over your affairs “beyond the grave.”

2. Death is an Unpleasant and Uncertain Event. People often put off any planning or do not want to think about their passing. It is easy to procrastinate and it always seems like planning can be left for another today. However, death is an unfortunate reality for us all. As Benjamin Franklin once said, “In this world nothing can be said to be certain, except death and taxes.”

What happens without a Will?

If you don’t have an Estate Plan or Will, in Memphis and Nashville Tennessee, your Estate, like Prince’s, may become subject to state law and Probate Court orders. This is likely to lead to familial dissension and excessive fees and costs for the Estate, which in the end reduces the amount of assets remaining for your Beneficiaries. Your money may also wind up going to the Government! For example, in Prince’s case, the Probate Court has appointed a Corporate Executor for his Estate, and many attorneys will be involved because of the number of potential Beneficiaries. There will be many questions as to how the royalties and future earnings from Prince’s music will be handled. Estate taxes will have to be paid. All of these factors will lead to a lot of money being spent (and some might even say “wasted”). All of the headaches and money spent, as well as the publicity involved, could have been avoided, or at least minimized, if Prince had planned ahead by having a Will or Estate Plan.

Moral of the Story: Don’t be like Prince.

Don’t be like Prince. Plan ahead now! Having an Estate Plan is easy, and every person can and should have one in place. A basic plan can be relatively inexpensive, even if drafted by a licensed Tennessee estate planning attorney, like the ones at Patterson Bray. We have offices in Memphis and Nashville. In Tennessee, and some other states, it is also possible, although often not recommended, for a handwritten Will to be valid. To read our blog post about handwritten wills, CLICK HERE.

Need a Tennessee Estate Planning Lawyer?

Call Patterson Bray if you’re in the Memphis or Nashville area at 901-372-5003 or email us here.

June 13, 2016 In Personal Injury

Neck Injuries from Slip and Fall Accidents

memphis personal injury lawyer neck injuries

The Costs of Slip and Fall Accidents

Most of us in our life have at some time slipped and fallen down with no long lasting effects, but a slip and fall accident can potentially result in a serious neck injury. When it can be proven that the cause of a slip and fall accident was due to someone’s negligence, that person or their company can be held liable. This includes the victim’s company if it can be determined that the slip and fall accident was caused by unsafe work conditions. Neck injuries can be serious.

A “simple” slip and fall accident may not have simple consequences. Serious neck injuries can result and wreak havoc on the victim’s long term health and well-being. The associated damages can be high as a result of:

Ambulance transportation from the accident scene to the emergency room.
Examination and x-ray fees plus any additional diagnostic tests.
Medical costs associated with immediate, short and long term treatments.
Physical rehabilitation.
Surgery
Lost wages from the present into the future.
Lost benefits as a result of not being able to work.

Symptoms of a Neck Injury

Immediately after experiencing a slip and fall accident, seek medical attention. There’s no substitute for qualified medical expertise to diagnose the extent of your injury. If you suspect you may have sustained a neck injury, any of the following symptoms may be present but their absence does not mean your neck isn’t injured:

A dull aching in the neck
Pain when turning your head or moving it in any direction
Shooting pains, tenderness, numbness, or tingling in the neck area
Difficulty swallowing
Headache
Facial pain
Shoulder pain
Numbness or tingling in the arm

Types of Neck Injuries

A neck injury may affect the nervous system as well as the spinal cord. In the worst case scenarios, neck injuries can cause paralysis or death.

Whiplash can be caused by the head forcibly and suddenly moving in one direction and then snapping backward.
Neck fracture. A slip and fall accident can result in a break of the cervical bone, resulting in a neck fracture. The elderly and those suffering from osteoporosis are at greater risk of this injury due to the brittleness of their bones.

Who can be held accountable for a slip and fall accident?

This will largely depend on where the accident occurred, the circumstances of the accident, and who owns the property on which the slip and fall occurred. Negligence must also be proven. The following are only general guidelines and are in no way a substitute for legal advice:

If on private property, was the owner aware of the dangerous conditions but did nothing to address them?
If at your workplace, did your employers ignore unsafe working conditions?
If on public property, were those responsible for its maintenance knowingly ignore dangerous conditions that led to your slip and fall injury?

Statute of Limitations

Most slip and fall accidents will fall under the statute of limitations which limits how long you can wait before you seek legal recourse. If the at-fault party is a government entity, the statute of limitations period may be even shorter. It’s important that if you have had a slip and fall accident and suffered a neck injury as a result that you immediately consider contacting a Washington DC slip and fall lawyer.

Need a Memphis Personal Injury Lawyer?

Call Patterson Bray at 901-372-5003 or email us here.

If you’d like to receive email notifications for our blog posts, please sign up here.

0 COHEN

Thanks to our friends and contributors at Cohen & Cohen, P.C. for their additional insight into neck injuries as a result of a slip and fall accident.

June 6, 2016 In Auto Accident, Civil Litigation, Medical Malpractice, Personal Injury

Will I have to pay taxes on my settlement?

personal injury settlement

Will the IRS make me pay taxes on my settlement?

Many of our Memphis and Tennessee injury clients ask – will I have to pay taxes on my settlement for personal injuries? The general answer is NO.

Here is what the IRS currently says about Settlements and Taxability:

If you receive a settlement for personal physical injuries or physical sickness and did not take an itemized deduction for medical expenses related to the injury or sickness in prior years, the full amount is non-taxable. Do not include the settlement proceeds in your income.

What if I did take an itemized deduction for related medical bills in prior years?

Will I have to pay taxes on my settlement if I did? You must include in income the part of the settlement that is for medical expenses you deducted in any prior year to the extent the deduction provided a tax benefit. For detailed information on how to report this, we recommend that you speak with your accountant or tax professional.

What about settlements for Emotional Distress or Mental Anguish?

If you receive a settlement for emotional distress or mental anguish stemming from a personal physical injury or sickness, then the settlement is treated the same as a personal injury, as noted above above. However, if the settlement for emotional distress or anguish does not arise out of a personal injury or sickness, then you must include the proceeds in your income. Here is what the IRS states on this issue:

If the proceeds you receive for emotional distress or mental anguish do not originate from a personal physical injury or physical sickness, you must include them in your income. However, the amount you must include is reduced by: (1) amounts paid for medical expenses attributable to emotional distress or mental anguish not previously deducted and (2) previously deducted medical expenses for such distress and anguish that did not provide a tax benefit. Attach to your return a statement showing the entire settlement amount less related medical costs not previously deducted and medical costs deducted for which there was no tax benefit. The net taxable amount should be reported as “Other Income.”

Punitive Damages are Taxable

If you receive an actual court award of punitive damages, those proceeds are taxable and should be reported as “Other Income.” This is true even if the award stems from personal injury or sickness.

Recovery of Lost Wages is Taxable

If your personal injury settlement is itemized to include recovery for lost wages, then that portion of the settlement is taxable and should be reported as income. During the negotiation phase, most attorneys are careful to clarify and/or minimize, if not eliminate, any apportionment of the settlement to wages. You would likely also receive a Form 1099 for any recovery attributable to lost wages. [Note: Wages and/or settlements paid in connection with work comp are not taxable.]

Interest on a Settlement is Taxable

What if the other side doesn’t pay my settlement all at once? Will I have to pay taxes on my settlement if they pay me interest? Yes. Interest you are paid on any settlement is taxable as “Interest Income.”

Do I have to tell my CPA or Tax Preparer about my settlement?

We advise that you do, so that he or she can advise you on the most up-to-date reporting requirements applying to your specific settlement.

Injured and seeking legal representation?

Call us at 901-372-5003 or email us here. We handle a wide range of personal injury cases. Our approach to handling cases is what sets our firm apart. While some injury lawyers and firms take on hundreds of cases, and may seem more interested in quickly settling the case than seeking full and fair compensation for their client, we focus on identifying great clients and great relationships.

Victims need a lawyer with the experience, drive, and knowledge necessary to compete with the insurance companies who are handling your claim. Otherwise, you’ll end up being a victim twice, and you might not even realize it until it’s already too late. We know how to get fair and just results.

Click here to learn more about the work we do.

May 18, 2016 In Civil Litigation, General

Property Damage by Tree Limbs and Roots

property damage by trees, property damage lawyer Have you ever wondered about property damage caused by tree limbs or roots?

First, let’s talk for a moment about your neighbor’s tree limbs. Suppose the tree itself is on your neighbor’s property, but the limbs are hanging over your fence, casting unwanted shade or shedding leaves you don’t want to pick up. This really bothers you. Can you trim the limbs even though the tree belongs to your neighbor and is on his property?

The quick answer is yes. But don’t ask your neighbor to pay for it. And don’t trim the limbs beyond the property line. If it’s a more serious matter, you might have a nuisance action for property damage.

Option 1: Self-Help—Trim the Branches Yourself

Under Tennessee law, you may, at your own expense, cut away intruding vegetation to the property line whether or not it constitutes a nuisance or is otherwise causing harm to your property.

Option 2: Nuisance Action—Bring Suit to Make Your Neighbor Pay Damages and Fix the Problem

In some cases, you may have a cause of action for nuisance. A nuisance lawsuit may be brought when tree branches or roots from the adjacent property encroach upon and damage your property. Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 356-57 (Tenn. 2002).

What is a Nuisance?

In Tennessee, a private nuisance is anything which disturbs the free use of your property, or which renders its ordinary use or physical occupation uncomfortable. This extends to problems that endanger life or health, give offense to the senses, violate the laws of decency, or obstruct the reasonable and comfortable use of property.

Encroaching trees and plants are not nuisances just because they cast shade, drop leaves, flowers, or fruit, or just because they intrude upon your property either above or below the ground. However, the problem may be a nuisance if it causes actual harm or poses an imminent danger of actual harm to your property.

Example of a Nuisance Case

The Lane case represents a pretty extreme case of nuisance. In that case, the trees at issue caused a hole in the plaintiff’s roof and water from that hole ruined her ceilings and stove. In addition, the plaintiff had severe plumbing problems as a result of encroaching tree roots. She was not able to use her bathroom sink or tub for two years. Nor could she flush her toilet. Even worse, raw sewage bubbled up into her bathtub and the floor had to be replaced because the toilet continually backed up. The Court stated:

Clearly, the defendant’s encroaching trees have adversely affected the plaintiff’s reasonable and ordinary use and occupation of her home, not to mention posing hazards to the plaintiff’s health and safety. Accordingly, we reject the defendant’s assertion that its trees do not constitute a nuisance.

What’s the end result of a nuisance lawsuit?

The owner of the offending tree may be held responsible for harm caused and may also be required to cut back the encroaching branches or roots if a court finds that the encroaching vegetation is a nuisance.

If you are successful in a private nuisance action, you may be entitled to several types of remedies. A court might order that the nuisance be stopped (injunctive relief). You may also be entitled to money damages for the cost of restoring your property to its pre-nuisance condition, as well as damages for inconvenience, emotional distress, and injury to the use and enjoyment of your property.

Read more about tree limbs and the law in Tennessee by reading our previous blog post titled, “Law FAQ: My Neighbor’s Tree Hangs Over the Property Line. Do I have the right to cut back the branches?”

Need a Property Damage Lawyer?

Disputes between neighbors can be very uncomfortable. We can help, whether that means facilitating communication, fashioning an amicable resolution, or, if all else fails, filing a lawsuit. We’re here to help you find a solution that works for YOU! Call us at 901-372-5003 or email us here if you need a property damage lawyer.

Meet the Patterson Bray team by clicking here.

May 16, 2016 In Business Litigation

How to Dissolve a Tennessee LLC

dissolve tennessee llc Need to dissolve your Tennessee LLC? The method for dissolving a business entity depends on the type of entity and its structure. This post will focus on the termination of a Tennessee Limited Liability Company (LLC). In addition, while LLCs can be dissolved both judicially and administratively, we will focus on dissolution by the person or persons associated with the LLC.

Disclaimer: This information is intended to be a general overview of the LLC termination process in Tennessee. The termination process may be different depending on the LLC, its makeup, or a client’s specific circumstances. This information should not be used as a substitute for consulting an attorney about terminating your LLC.

Statute on how to dissolve a Tennessee LLC

LLCs formed on or after January 1, 2006, are governed by the Tennessee Revised Limited Liability Company Act. Tenn. Code Ann. 48-249-601 provides the various methods for dissolving a Tennessee LLC and provides that an LLC is dissolved upon the first of the following to occur:

Expiration of the period fixed in the Articles of Organization, if any:
The occurrence of an event specified in the LLC documents;
Action of the members in accordance with Tenn. Code Ann. § 48-249-603;
Action of the organizers under Tenn. Code Ann. § 48-249-602 if not contributions have been accepted by the LLC;
An order of the court under Tenn. Code Ann. § 48-249-616 or § 48-249-617, also known as judicial dissolution;
An action of the Secretary of State under Tenn. Code Ann. § 48-249-605; also known as administrative dissolution; or
If there are no LLC members and a notice of dissolution is filed within 90 days of the occurrence of the event terminating the interest of the last remaining member and the LLC documents specify that the termination of the interest of the last member dissolves the LLC.

The statute specifically provides that the “termination, dissociation, death, incapacity, withdrawal, retirement, resignation, expulsion, bankruptcy or dissolution of any member, or the occurrence of any other event that terminates the membership interest of any member, shall not cause the LLC to be dissolved.” If any LLC is to be dissolved in any of these instances, it must be stated in the LLC documents.

What to Do Before Termination

Before terminating your entity with the Tennessee Secretary of State, the entity must file a Final Tax Return with the Tennessee Department of Revenue and obtain a Tax Clearance Letter to submit with its termination documents.

Submitting Termination Documents

If a Tennessee LLC is terminated by the organizers, Articles of Termination by the organizers must be filed with the Tennessee Secretary of State. If the LLC is terminated after a designated period, under the LLC documents, if there are no members left, or if by consent of the members, Notice of Dissolution must also be filed with the Secretary of State. Be sure to have appropriate documentation filed with your LLC documents showing any action that was taken to effect this decision, if necessary.

What to Do After Termination

Once an entity is terminated with the State, the LLC must stop doing business and wind up its affairs. To wind up the business, management must collect and pay all debts, sell assets, and distribute any remaining funds to the members of the LLC.

You Still Need to Consult a Business Lawyer

This information is only a general overview of the LLC termination process in Tennessee. The process may be different depending on the LLC, its makeup or a client’s specific circumstances. For this reason, it is important that you consult an attorney before taking steps to terminate your LLC.

If you need help terminating your LLC, we would be honored to assist you. Please call us at 901-372-5003 or email us here.

May 11, 2016 In General

Have Divorce Questions? Guest Blog by Family Law Attorney, Lucie Brackin

Divorce Lawyer Tennessee

divorce attorney memphis We hope you never need a divorce. But just in case you have questions about what a divorce in Tennessee involves, we’ve invited Guest Blogger and Family Law Attorney Lucie Brackin to fill you in. Lucie is a partner with The Landers Firm PLC. Here’s what Lucie has to say about getting a divorce in Tennessee:

Filing a Divorce Case

The first step is to file a Complaint for Divorce and pay the filing fee to the Court Clerk’s office.

How Long Does it Take to Get Divorced?

If you have minor children, there’s a 90 day waiting period before the Court can grant a divorce. If you don’t have minor children, the waiting period is 60 days.

Discovery in a Divorce Case

The first formal phase of a divorce is called “discovery” because that’s what the lawyers are doing – discovering everything they need to know about the parties, the finances, the children, etc. This usually involves answering a list of questions under oath, producing documents to the other side, and depositions.

Child Custody in Tennessee

In Tennessee, the Court will not use the word “custody” in your case. The terms now used under Tennessee law are Primary Residential Parent and Alternate Residential Parent. However, these titles don’t hold the significance you might think. Regardless of who holds these titles, each parent’s specific rights to make major decisions regarding the children’s education, health, religion, and extra-curricular activities will have to be determined and specifically stated in the Permanent Parenting Plan that must be either agreed upon or ordered by the Court.

Parenting Time (or Visitation)

Courts in Tennessee do not use the term “visitation.”’ The legal term in Tennessee is “parenting time.”’ The Permanent Parenting Plan form outlines the day-to-day and holiday schedules. This must all be completed before a Court will approve a Permanent Parenting Plan.

Child Support in Tennessee

If minor children are involved, there must be a Child Support Worksheet attached to the Permanent Parenting Plan.

In order to calculate child support, you must include:

number of days per year each parent has the children (which is basically the number of overnights the children spend with each parent per year),
each parent’s gross monthly income,
cost that each parent pays for the children’s insurance,
cost of work-related child-care.

After the “guideline support” is determined by the worksheet, there may be deviations (upward or downward) that may be allowable, such as recurring medical expenses, extra-curricular activities, or special lessons.

“Minor children” are defined as children who have not yet turned 18 years of age and graduated from high school. So, child support sometimes has to be paid after a child has turned 18 but has not yet graduated or after a child has graduated but has not yet turned 18.

College Expenses as Child Support

Courts in Tennessee cannot order parents to pay college expenses, although parents can enter into a contractual agreement to pay college expenses for their children. It is very important to talk to a lawyer before you enter into a contract to pay college expenses for your children.

Division of Assets and Liabilities in a Divorce

The first determination that the Court will make is whether the asset or debt in question is “marital” or “separate.” Generally, separate assets are those that one of you had before the marriage, that you inherited, or that was given to you as a gift, and which you continued to hold separately. With the exception of some kinds of retirement funds, increases in value to those separate items will also be separate unless marital efforts have been used to cause the increase in value. Separate assets are typically retained by their original owner and the other spouse cannot make a claim to those items. There are, of course, special exceptions that apply to special circumstances. Marital assets are nearly everything else, including things like closely held businesses or professional practices.

The division of marital assets occurs without considering the fault of a party (“grounds for divorce”), and the guiding principal of division is that the Court is to achieve “equity” with the division, but “equity” does not necessarily mean “equal.”

Alimony (or Spousal Support)

There is no formula to calculate alimony in Tennessee. To calculate alimony, the Court considers many factors, the most important of which are “need” and “ability to pay.” While there are no hard and fast rules, you can typically assume that the longer the length of the marriage and the greater the disparity in the parties’ earning capacities, the greater and longer the alimony award. Conversely, the shorter the marriage and the closer the parties’ earning capacities are, the less likely it is that there will be a significant alimony award or any at all.

The types of alimony available in Tennessee are as follows and they are applied based upon which type best fits the facts, circumstances, and needs in your case:

In Futuro Alimony: This is typically “lifetime” alimony and is reserved for very unusual cases or long-term marriages where one spouse will never be able to fully support himself or herself. It is typically taxable to the recipient, deductible by the payor, and modifiable by both parties under the right circumstances.
Rehabilitative Alimony: This is typically used in circumstances where one spouse needs support to allow him or her to get to a financial place where support is no longer needed – perhaps to complete an education or to allow a minor child to begin school. It is typically taxable to the recipient, deductible by the payor, and modifiable by both parties under the right circumstances.
In Solido Alimony: This type of alimony is also known as “lump sum alimony” and it is typically used to balance out an unequal division of property or to ensure the transfer of a certain sum of money to a spouse without creating tax consequences and without allowing modifiability.
Transitional Alimony: This form of alimony is typically used in circumstances that don’t fit other types of alimony and “rehabilitation” is either not possible or not needed. It is typically of short duration, and it may be taxable or non-taxable, and it may also be modifiable or non-modifiable, depending on what is trying to be achieved.

Resolution of a Divorce Case in Tennessee

Most divorce cases will be settled through mediation, which the Courts often order if the parties do not voluntarily attend. If you are unable to resolve your case, your divorce will be set for trial.

Need a lawyer in Memphis?

We would be honored to help you with your legal issue. View our practice areas here.

In addition to Memphis, we also represent clients in Arlington, Bartlett, Collierville, Cordova, Eads, Germantown, Lakeland, Nashville, Ashland City, Belmont, Hillsboro, Brentwood, Belle Meade, Forest Hills, Franklin, Greenhill, Hendersonville, Nolensville, Nolan’s Park, Oak Hill, and surrounding areas. We also work in Mississippi.

Patterson Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38103

(901) 372-5003

EMAIL US HERE.

Lucie Brackin, Guest Blogger

May 9, 2016 In Business Litigation, Estate Planning

Wyoming Close LLCs Protect Assets

A popular asset protection tool we use at Patterson Bray is the Wyoming Close Limited Liability Company. One or more people can establish and own this type of entity and may also manage the LLC.

Anyone can establish a Wyoming Close LLC, even if you do not live in Wyoming or conduct your business there.

Protection from Lawsuits

Under current law, assets inside a Wyoming Close LLC are protected from “outside” lawsuits and creditors, such as those resulting from a car accident or malpractice action. In a few states, like Wyoming, the sole remedy for a creditor of an LLC member against that member’s LLC interest is a “charging order.” A charging order only allows the creditor access to the debtor’s LLC interest to the extent distributions are made to the member.

Estate and Gift Tax Benefits

Under current law, the value of a membership interest in a Wyoming Close LLC may be subject to valuation discounts for estate and gift tax purposes. We anticipate in the future that the IRS will institute regulations limiting tax benefits.

Separation of “Hot” and “Cool” Assets

A “hot” asset is something like a rental property. A “cool” asset is something like a brokerage account. Separate LLCs should be formed to keep “hot” and “cool” assets separate. “Cool” assets should be isolated from “hot” assets because any “inside” lawsuits, such as those resulting from accidents occurring on property inside the LLC, will subject “cool” assets to claims of creditors of the “hot” assets.

Is a Wyoming Close LLC right for you?

If you have questions about whether a Wyoming Close LLC might be right for you, or if you’re curious about other forms of asset protection and business organizations, please call us at 901-372-5003 or email us here. We will examine your personal situation and work to develop the asset protection strategy that is right for you.

May 5, 2016 In Auto Accident, Civil Litigation, General, Personal Injury

Who is the best lawyer near me?

You may have been hurt in an auto accident or truck accident and wondering:

Who is the best injury lawyer or best accident lawyer in Memphis, or Nashville?
Who is the best injury attorney near me?
Who is the best car wreck lawyer in Cordova, or Bartlett, or Germantown?
Who is the best car wreck attorney near me?

You may have been injured and Googled those questions, or perhaps others:

Who is the best personal injury attorney or wrongful death lawyer in Memphis?
Who is the best spinal cord injury lawyer, or brain injury lawyer near me, or in Memphis, or in Tennessee?
Who is the best lawyer to negotiate with an insurance company for damages for your injury?

Right question. Wrong answer.

You won’t ever hear any lawyer or attorney at Patterson Bray claim that we are the “best” in Memphis – for a couple of different reasons. First, because there are plenty of fine lawyers and attorneys in the Memphis and Nashville, Tennessee area, including in Cordova, Bartlett, Germantown, Arlington, Millington, Collierville, and Lakeland. We would seriously question any injury lawyer with the temerity to proclaim himself “the best.”

Second, based on Rule 7 of the Rules of Professional Conduct, the Tennessee Board of Professional Responsibility back in 2004 specifically prohibited such self-serving, subjective statements by attorneys, including statements that a lawyer is “most qualified,” “excellent,” “top,” “most experienced,” “preferred”, or an “expert” in a particular field of law, such as personal injury, auto accident, or wrongful death. The Board’s opinion was based on provisions of Rule 7 that have since been revised, and thus it is not entirely clear whether an outright prohibition is still technically enforceable. However, most reputable lawyers still find such statements to be highly questionable, and certainly in poor taste.

So, the next time you hear an attorney refer to herself or himself as an expert, or say that he or she is the best lawyer in a Tennessee town – whether on TV or on a website or in marketing materials – you should know that that lawyer is not only humility-challenged, but also possibly in violation of the basic Rules governing attorney conduct.

The right answer?

At Patterson Bray, you’ll only hear us talk about our experience in Memphis and Nashville, Tennessee injury claims, and about our unique and selective approach to personal injury and wrongful death claims. When it comes to injury cases, we’re not a high-volume, low-dollar settlement firm. We only take serious claims involving serious injuries or death, and we purposefully keep our caseload small so we can give our clients the attention they deserve.