Parallel Parenting

According to Philip M. Stahl, research indicates that divorced parents generally engage in one of three styles of parenting: cooperative, conflicted, or disengaged. Of course, cooperative parenting is the best for all concerned. But if cooperative parenting is not an option, Dr. Stahl recommends that parents disengage and practice "parallel parenting." As the name suggests, parallel parenting means that each parent uses the parenting techniques he or she thinks appropriate, without criticizing or attempting to change the other parent's techniques.

The ABA Family Law Section newsletter contains an excerpt on the subject of parallel parenting from Dr. Stahl's Parenting After Divorce . Thanks to David C. Sarnacki for the heads up.

Permanent Parenting Plan Form Revisions

The Administrative Office of the Courts has made some changes to the permanent parenting plan forms. The new forms are located here.

Roadmap: Divorce Case

As Judge Koch has said, "the parties and the courts should pay careful attention to the order in which the various issues in a divorce case are addressed and decided" because the issues are interrelated. Anderton v. Anderton, 1998 WL 289338 (Tenn. Ct. App.):

As a general rule, the first issue considered in a divorce case concerns whether either or both parties have demonstrated that they are entitled to a divorce.

Following this decision, trial courts should turn their attention to the custody and visitation arrangements for the children if the parties have minor children entitled to support.

Only after these status issues have been decided should trial courts turn their attention to the financial aspects of the divorce decree.

The trial court’s first task following the resolution of the status issues is to identify and distribute the parties’ separate property and then to divide their marital property in an equitable manner.

After the parties’ property interests have been addressed, trial courts should then turn their attention to child support.

Consideration of spousal support questions should follow the disposition of all the preceding questions.

Once a court has determined whether spousal support should be awarded, and if so its nature, amount, and duration, it should, as a final matter, address any request for attorney’s fees if such request has been made.

Judge Koch is a member of Scribes: The American Society of Writers on Legal Subjects, and it shows. (Thanks to Clark Lee Shaw for directing me to the Anderton opinion).

Roadmap: Division of Marital Estate

Judge Koch recently authored an opinion that provides an excellent roadmap of the process of dividing a marital estate. For example:

Dividing a marital estate necessarily begins with the classification of the parties' property as either separate or marital property.

After a trial court has classified the property as either marital or separate, it should place a reasonable value on each piece of property subject to division.

Once the parties' marital property has been classified and valued, the trial court'’s goal is to divide the marital property in an essentially equitable manner.

Dividing a marital estate is not a mechanical process but rather is guided by considering the factors in Tenn. Code Ann. § 36-4-121(c).

The opinion includes a good discussion of factors to be considered in dividing marital assets, including several accepted rules-of-thumb:

First, for example, it is commonplace for debts to follow the assets they purchased. Second, the courts are now generally inclined to award economically disadvantaged spouses a small portion of the marital debt in cases where there are few marital assets. Third, when a marital debt is owed to a party who is related to one of the spouses, the debt is frequently assigned to the spouse who is related to the creditor.

Preserving Capital Gain Deduction

Most people know that they can enjoy a generous capital gain deduction if they sell property that they have used as a principal residence for at least two of the five years preceding the sale. But what happens if you divorce and your ex-spouse continues to live in the house? Or what if you just separate and allow your spouse to live in the house?

Under IRC § 121(d)(3)(A) your spouse's or ex-spouse's use of the house as a principal residence counts for you too. If you divorce, your ex-spouse must have been given use of the property under a "divorce instrument," which is "a decree of divorce or separate maintenance or a written instrument incident to such a decree" or a decree "requiring a spouse to make payments for the support or maintenance of the other spouse." If you are separating, your spouse must have been granted use of the property under a written separation agreement.

Ambuscatory Motion Practice

Have you ever lost a motion that you didn't even realize was pending? Maybe opposing counsel didn't realize it was pending either. All too often important issues are decided on the spur of the moment, without proper notice, based upon an oral motion or even a sua sponte ruling.

Those of you who believe that rules is rules will be disappointed to learn that the Tennessee Court of Appeals recently upheld a sua sponte ruling on an oral motion. Putting aside the issue of how a court can rule sua sponte on a motion, the Court of Appeals opinion offers a little something for everyone. The opinion acknowledges that an unnoticed oral motion is inconsistent with the rules of civil procedure. And the court bases its ruling in part upon the appellant's failure to explain how he was prejudiced by the trial court'’s ruling. On the other hand, the opinion emphasizes that the rules are intended to secure the just, speedy, and inexpensive resolution of disputes -- emphasis on speedy and inexpensive. The court also bases its opinion in part upon its conclusion that the trial court's ruling was probably correct.

So does this opinion mean (1) unnoticed oral motions are prohibited unless they are meaningless, or (2) unnoticed oral motions are OK as long as they are fast, inexpensive, and reasonably well justified? It depends which side of the case you are on.

The Marriage Revolution is Old News

Those predicting the end of traditional marriage are at least 30 years too late argues Stephanie Coontz, author of Marriage, a History: From Obedience to Intimacy, or How Love Conquered Marriage. In a New York Times editorial, Coontz contends that heterosexuals began undermining traditional notions of marriage 200 years ago during the Enlightenment. Married women attained a completely independent legal identity as recently as 30 years ago. Coontz sees these changes as the nose under the tent for advocates of same-sex marriage.

By the way, if you find the registration and log-in process at websites like the New York Times annoying, you should consider switching to the Firefox web browser and installing the BugMeNot FireFox extension. (A version is also available for Internet Explorer, but I haven't tried it.)