Tennessee

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Virginia Lee Story answered our questions about Tennessee law and customs. Since 1985 this "Super Lawyer" has represented a roughly equal mixture of male and female clients in the town of Franklin, about 30 minutes south of Nashville. Due to the fact that she established her practice in a small town she has a wider range of experience than most of the other attorneys interviewed for this book, though currently family law is 90 percent of her practice. She goes to trial more than 12 times per year. See williamsoncountyattorneys.com for more biographical information.

Tennessee requires divorcing couples to prepare for and attend at least two hours of mediation prior to requesting a trial date. This process takes approximately six months according to Story. Can a determined litigant sit silently in the mediation room with his or her hands folded? "The mediator can file a report saying that a party did not participate," says Story. If mediation is unsuccessful it takes approximately one more year, depending on the county, to get to trial. Thus the entire process requires approximately 18 months.

As with other states, Tennessee has a temporary orders hearing process via which a litigant can obtain the house, the children, and a stream of cash flow after 1-2 hours in the courtroom. "Sometimes the judge will just hear from attorneys who have prepared income and expense statements," says Story. "Other times the judge will want to hear from the parties but usually not other witnesses." Is it conventional for a judge to order one parent out of the house? "No," says Story. "Unless there is violence or a threat of violence. I usually tell my clients to carry a tape recorder with them in the house. Otherwise it is 'he said, she said'." (Note that it is legal to record a conversation in Tennessee even if the other person is not aware that you are making the recording.)

Is it easy to obtain an overwhelmingly dominant role as a parent after a temporary hearing? "No," says Story. "We have a statute that says the judge should maximize time with both parents, both at this stage and following a trial. The schedule might be Monday through Thursday with mom and Thursday through Monday with dad."

Child support can be easily calculated by citizens in Tennessee using a state-published calculator or the guidelines themselves. The direct profitability of children in Tennessee is limited by a cap on child support of $2,100 per month for one child ($25,200 per year), $3,200 per month for two children ($38,400), and $4,100 per month for three or more ($49,200 per year). These caps are reached with about $310,000 per year in pre-tax income in the single-child case, $400,000 per year in income in the two-children case, and $500,000 per year in income when three children are the subject of a lawsuit.

When suing a high-income defendant, substantially larger amounts of child support could be obtained in other states. However, Tennessee's caps are roughly 3X the USDA-estimated cost of caring for children and the roughly $9,000 per year that Tennessee pays to parents of foster children.

Tennessee provides cash incentives to have children with multiple co-parents. At the cap level, three children from the same defendant will yield a tax-free $885,600 over 18 years. The cash value of three children from three different defendants is $1.36 million.

Note that while child support (money that can be spent without restriction by a successful plaintiff) is capped in Tennessee, a parent might be ordered by a court to pay additional sums for work-related child care, health insurance or health care, private school tuition, trust funds for college, extracurricular activities or a car at age 16.

Child support terminates at age 18 or graduation from high school, whichever is later but generally this can't be much beyond 18 because it is the expected date of graduation with the child's class that is used, not the actual fact of graduation. Story points out that in the case of a disabled child, child support may be ordered indefinitely.

Child support gets adjusted for parenting time contributed starting at 82 days per year with the non-custodial parent. Story says that the adjustment becomes significant starting at 120 days per year. When two working parents have roughly equal incomes and roughly equal schedules, child support is minimal, according to Story. A quick calculation of a mother earning $10,000 per month caring for a child 60 percent of the time and collecting child support from a father earning $15,000 per month results in a monthly transfer of $727 per month or $8,724 per year. If they switched to a 50/50 schedule the amount would be $408 per month ($4,896 per year). Additional child-related expenses would then be shared proportionally according to the parents' respective incomes, i.e., 40 percent paid by the mother and 60 percent by the father.

A child support revenue stream is more secure than in states that use the "best interest of the child" standard for modifying custody and parenting time. Tennessee requires a "substantial and material change in circumstance" for a requested modification to be successful. Story says "It would have to be that the child and mother are fighting all of the time or the child is not doing well in school, e.g., excessive tardies. There is a high bar to change custody." What if the child him or herself wants a change? "At the age of 12 a child has a right to express a preference as to whom they want to live with," says Story. "The judge may not agree but it is a factor."

Although Tennessee has not adopted the Uniform Premarital Agreement Act, it is possible for parties to execute a "walk-away" prenuptial agreement in which each keeps his or her separate property and neither pays alimony to the other.

State background

The average hourly wage in Tennessee is $18.90 per hour. A person who goes to college at the University of Tennessee will spend approximately $77,344 over four years to earn a bachelor's degree. Census 2014 data show that the median income of a 22-36-year-old college-educated woman working full time is $37,000 per year ($29,425 after taxes). The corresponding man earns $42,000 per year ($33,068 after taxes). Tennessee collects 7.3 percent of residents' income in order to fund state and local government, a much lower rate than the national average of 9.9 percent (source: Tax Foundation). Individual income is taxed at a rate of 6 percent.

The average annual cost of child care is $7,748 for an infant, $6,578 for a four-year-old, and $3,374 for a school-age child. Thus the total cost of child care from age 0 through 12 is $42,315 in commercial settings or $32,850 in a family care setting.

The male college graduate will have an after-tax spending power of $385,608 after 14 years of working (14 years of income minus taxes and the cost of college). Considering the USDA-estimated cost of a child, he would be financially better off collecting child support when that support is $2,535 per month or more. Due to Tennessee's cap on child support this is simply unobtainable. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,643 per month, the guideline payment corresponding to pre-tax earnings of $231,000 per year.

The female college graduate will have an after-tax spending power of $334,620 over the same time period. She would be better off collecting child support when it exceeds $2,299 per month, an over-the-cap amount that is likely not obtainable in Tennessee. If she is suing two fathers, however, when she collects $1,525 per month from each she will come out ahead compared to the college/work case. This happens when her defendants earn more than $201,600 per year, pre-tax.

Among residents surveyed by the U.S. Census Bureau in March 2014, 97 percent of those collecting child support were women. Of women aged 30-40, approximately 30 percent collect child support (compare to a national average of 17 percent).

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

Story says that in roughly 15 percent of the cases she handles the woman is the higher earner. In making a guess regarding the outcome of our hypothetical Story points out that the Tennessee court in all cases is required to designate a "primary residential parent" or "PRP". This is the person who has the final say regarding the child though courts "like to see" parents discussing and making joint decisions regarding education, religion, non-emergency health care, and extracurricular activities. The PRP's home address will determine the school district and the PRP will have the majority of the parenting time, though a New York-style 83/17 split would be a very unusual result.

In common with many other states, Tennessee's courts hear from attorneys and witnesses to try to figure out who was the more important parent during the marriage and then award that person the children and an accompanying stream of tax-free child support. The "pick a winner parent" system tends to result in a lot of business for attorneys. Defendants don't want to become the "loser" parent. For the effects on children, see our "Guide for Citizens and Legislators" chapter.

In this hypothetical, Story says "If she has been the one who handles the parenting as far as getting the child on a schedule, making sure that she is getting proper nutrition, arranging doctor's appointments, etc., she can get primary residential parent (PRP)." What would the child's schedule look like? "Pretty much equal parenting time because she is at work more. He will have to go to work because he will not get any spousal support. It might be a 60/40 split [in the mother's favor]."

As with many other states, Tennessee involves mental health professionals in the quest to figure out which parent should become primary. "If the parties cannot agree on whom to use as a psychologist then the court can appoint one to provide a custody evaluation," says Story. The cost of this report may be up to $10,000. Do the judges rubber-stamp the psychologist's recommendation? "Certainly the judge listens to them if they have done a good job," says Story, "but  I have seen therapists recommend one thing and the judge will say 'I'm going to tweak that a little bit.'"

Litigation seems to cost less than in many other states. Though Story charges $350 per hour she estimates the total cost of handling a case through trial at between $10,000 and $50,000, with the higher end number being for a "high asset" case with business valuations and forensic accounting "to see if tax returns accurately reflect income." Much of the savings seems to come from a streamlined discovery process compared to some other states. Story says that while she will depose a psychologist making a custody recommendation she will not generally depose other fact witnesses but just wait for them to testify at trial. "If a wife is calling her mother and sister I can be pretty sure that they are going to testify about what a great mom she is," notes Story.

Given that the defendant here has no income, could the plaintiff be ordered to pay his fees? "The judge has discretion to do that," says Story, "but probably it would come out of his assets."

If his photography business is not profitable, can she collect child support from the father? "Income will be imputed to him," says Story. "As a starting point for a man it is $39,000 per year. It could be bumped up after a period of six months to $60,000 or $100,000 per year if he has a business or engineering degree." [Story agreed that it was ironic that the government simultaneously runs unemployment offices dedicated to the proposition that it is hard to find a job and divorce courts operating under the assumption that it is easy to find a job.] The calculator shows that if income of $39,000 is imputed to the father and he cares for the child 40 percent of the time, the mother will actually pay him $1,006 per month in child support. If, on the other hand, she can reduce the child's time with the father to 80 days per year, she can collect $261 per month from him. In other words, the mother has a $258,468 incentive, over a 17-year period, to argue for a more one-sided parenting time schedule.

Story thought that a judge would be equally critical regarding either a mother or father who stayed at home but relied on a nanny to do all of the heavy lifting, predicting that the judge would say "If you've got a nanny there go get a job." The father could get a 50/50 share of assets accumulated during the marriage, according to story, but "because it is a short-term marriage the judge can restore parties where they were prior to the marriage." What's "short-term"? "There is no statute that defines the length," says Story, "the Batson case is the yardstick and that was a 7-year marriage that they called 'short-term'."

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

Unlike in many other states, the father's moving out will not prejudice his effort to secure a long-run parenting role, according to Story. "If he moved out to shield the children from tension," Story notes, "a judge isn't going to hold that against him."

Suppose that each parent here asks for sole custody, can the judge impose a shared custody schedule on them? "The court must designate someone as primary residential parent in all cases. That's the law," says Story. "However, the judge has the power to give 50/50 parenting time. The norm is that the mother provides a parenting plan and the father provides a plan and usually judge tries to come up with a compromise in the middle."

Story thought that if there is truly no evidence that one parent was more involved in child-related tasks than the other, and the two parents lived in the same school district, a court would order a week-on, week-off schedule.

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

"The mother will be the PRP," says Story, "and dad will get parenting time the best he can given his work schedule." What sort of schedule might shake out of this? "Our courts try to give fathers as much time as they possibly can. Probably a 60/40 split in this hypothetical. Maybe Thursday to Monday morning and Thursday overnight on the off week." How about the summer schedule? "Judges try to give a lot of time with both parents in the summer. Maybe four weeks each."

Story had just described a scenario in which the children, after potentially substantial litigation, had ended up with the same schedule codified in a Texas statute for any child of two parents who can't agree. What did Story think of the Texas system that forces parents to negotiate or accept a standard schedule? Unlike a lot of attorneys whom we've interviewed in states where the schedule is conventionally the subject of attorney argument and judicial discretion, Story thought that it was good to have a fall-back rule.

With a 60/40 schedule, the child support calculator shows that the father will pay the mother $28,968 per year in tax-free support for the two children. Story says that the mother will also receive "transitional alimony to get her back into the workforce" for 4-6 years, a period governed by custom and case law, not statute. What percentage of his income will she receive as taxable alimony? "There is no standard percentage," says Story. "It is based on her need and his ability to pay. The judge would look at her actual bills. If she is getting close to the $3200 per month cap in child support then her alimony might be $4,000 per month."

Doesn't this system reward pre-divorce planning? She has the family buy her dream house, a fancy car, deluxe vacations? "They do look at what the standard of living has been," says Story, "but on the other hand the system is based on 'needs' not 'wants'. So buying luxury items doesn't help."

Based on her lower earning potential, Story thought that the mother could get up to 60 percent of the couple's marital assets "if the judge thinks it is equitable."

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

Once again the mother would be the PRP. Story predicts a schedule in which the baby spends no more than 1-2 nights at a time with either parent. Unlike in some other states, Story predicts that the baby would have overnights with the father immediately though not for more than one night at a time. With a 60/40 schedule and no income imputed to the mother, the father would pay the mother $1,886 per month in child support ($22,632 per year) based on his earned income.

Story says that the mother cannot get a direct division of the $2 million in pre-marital savings. However, if efforts made during the marriage contributed in some way to any increase in the value of that $2 million, a court could consider awarding the mother a share of that increase. Any actual income received from the $2 million could be used to get the mother all the way up to the $2,100 per month child support cap for a single child. And Story says that it could also be a factor in persuading a judge to order the father to pay for private school and other extras.

If the $2 million is invested in such a way that it is not producing current income, Story say that a judge would not impute income to the money. "It has to be an actual history of dividends being paid," says Story.

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

Story says that child support and parenting time will be decided just as if the parties had been married. There is no statute of limitations and therefore the mother could wait, for example, for five years before informing the father of the child's existence then collecting child support back to the date of birth.

Story says that the mother need not hire a private attorney but can have a state agency pursue the father throughout the entire process.

Removal/Relocation

What does it look like when a parent wants to move to another state? "She has to file a petition for permission of the court to relocate. First she will send a letter to ex-spouse 'I'm going to be moving to Texas. My new husband's job has transferred him to Austin and here's where the children will go to school. Please let me know if we can meet and talk about a new parenting plan.' The father files a petition in opposition and they go before a judge in a relocation hearing." What standard is used? "Purely best interest of the child." Is a mother who wants to relocate for a new job or a new husband likely to prevail? "The judge will let her go and try to make up the time that father had in the original parenting plan. The father could get school holidays and summer time."

Quirks

Unlike most other states, the children of an existing marriage have at least a limited right to a parent's income and financial support even if that parent has extramarital affairs and is being sued by one or more child support plaintiffs. This is because the Tennessee child support calculator includes a section for "Qualified Other Children in home". If a $275,000 per year married defendant is sued by a person encountered for one night in a bar, and that other person takes care of the child 100 percent of the time, the defendant pays $25,200 per year (at the $2100 per month cap). If, on the other hand, the defendant already has three children at home, he or she will pay only $120 per year less due to a pre-tax $1942 per month "credit for in-home children". Note that the one extramarital child has a cash value that is higher than the three children of the marriage ($2100 per month after taxes versus $647 pre-tax per month for each of the three children of the marriage).

As in most other states, each successive child of a defendant has a lower cash value, though the difference is much smaller than typical. Assuming that all children are the subject of court orders, the first plaintiff receives up to $24,936 for a child of a $250,000 per year defendant. Curiously, when that $2078 per month after-tax payment is fed back into the child support calculator when running the numbers on a second child, it shows up as a $1311 monthly pre-tax "Credit for not in-home children". The second child then has a cash value of $1977 per month to the second plaintiff, about $1200 per year less. Repeating the process, the $4055 paid monthly after taxes results in a $1694 pre-tax credit and the third plaintiff receives $1946 per month.

Summary

For parents interested in obtaining custody, Tennessee substantially rewards pre-divorce planning. In determining who was the more important parent during a marriage and therefore who should win the valuable "primary residential parent" designation, Tennessee looks at discrete items such as who scheduled a child's activities, doctor's appointments and parent-teacher conferences. A parent who expects to file a lawsuit can therefore volunteer for these responsibilities, asking the other parent to take on less quantifiable tasks, and then have a substantially stronger case a year or two later.

Plaintiffs may be able to obtain more by obtaining the jurisdiction of another state. For example, the child of a $250,000 per year earner in Massachusetts would yield over $40,000 per year in child support for 23 years whereas the same child of the same earner in Tennessee would yield only $20,976 for 18 years. That's a difference of more than $542,000.

Given the stickiness of the "PRP" designation and the parenting time schedule, coupled with the fact that mothers tend to be more involved with infants than are fathers, Tennessee encourages mothers to file lawsuits when children are young.

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