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Frequently Asked Questions

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Frequently Asked Questons

You may have a number of questions about your legal issue or case. We have compiled a list of some of the most frequently asked questions below.

We would welcome you to contact us directly for scheduling time to review your case in more detail.

Mediation FAQs

How to Select a Mediator?

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Don’t settle for just any mediator. Instead, choose the family mediator that’s right for your case. What makes a good family mediator? Look for a Listed Tennessee Supreme Court Rule 31 Mediator. - Experience (Mediator’s Background) - Respect / Non-Judgmental - Flexibility - Common Sense / Good Sense of Humor - Referrals, Referrals, Referrals

Who Pays For Mediation?

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Generally, the cost to mediate is shared equally between the parties involved unless otherwise stated. In some cases, the judge may order a case to be mediated.

What happens if you don't agree?

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If the parties do not reach an agreement, you maintain the right to take the dispute before a judge or jury. If you start family mediation but decide to stop before you complete an agreement, you will maintain your right to go to court at a scheduled court date.

Is Mediation Confidential?

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Mediation is confidential. No information you share during mediation is shared with the judge. The mediator only reports the result of the mediation – if it was successful or not. Unless otherwise communicated, all conversations and documents presented during mediation are confidential and privileged under Tennessee mediation law T.C.A. § 36-4-130.

How Does Mediation Work?

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You can attend voluntary mediation any time before or during a case. A trained Mediator will lead the mediation meeting. Each party voices its opinion as to how to resolve the matter. The role of the Mediator is to help you and the other party reach an agreed-upon resolution without going to court for full litigation. Most family mediation sessions are agreed-upon hours, but usually no longer than five-hour sessions. Mediation can be conducted in person or remotely via phone, email, or video. Having the flexibility to conduct mediation means you can work around work conflicts, illness, and agreed-upon. You can prepare for family mediation with a proposed parenting plan, ideal arrangements, lists of expenses, proof of income, and entries from a parenting journal or calendar showing when you care for your child.

Personal Injury and DUI FAQs

How to Select a Mediator?

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Don’t settle for just any mediator. Instead, choose the family mediator that’s right for your case. What makes a good family mediator? Look for a Listed Tennessee Supreme Court Rule 31 Mediator. - Experience (Mediator’s Background) - Respect / Non-Judgmental - Flexibility - Common Sense / Good Sense of Humor - Referrals, Referrals, Referrals

Who Pays For Mediation?

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Generally, the cost to mediate is shared equally between the parties involved unless otherwise stated. In some cases, the judge may order a case to be mediated.

What happens if you don't agree?

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If the parties do not reach an agreement, you maintain the right to take the dispute before a judge or jury. If you start family mediation but decide to stop before you complete an agreement, you will maintain your right to go to court at a scheduled court date.

Is Mediation Confidential?

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Mediation is confidential. No information you share during mediation is shared with the judge. The mediator only reports the result of the mediation – if it was successful or not. Unless otherwise communicated, all conversations and documents presented during mediation are confidential and privileged under Tennessee mediation law T.C.A. § 36-4-130.

How Does Mediation Work?

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You can attend voluntary mediation any time before or during a case. A trained Mediator will lead the mediation meeting. Each party voices its opinion as to how to resolve the matter. The role of the Mediator is to help you and the other party reach an agreed-upon resolution without going to court for full litigation. Most family mediation sessions are agreed-upon hours, but usually no longer than five-hour sessions. Mediation can be conducted in person or remotely via phone, email, or video. Having the flexibility to conduct mediation means you can work around work conflicts, illness, and agreed-upon. You can prepare for family mediation with a proposed parenting plan, ideal arrangements, lists of expenses, proof of income, and entries from a parenting journal or calendar showing when you care for your child.

Family Law FAQs

What happens if an MDA is approved?

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If an MDA is approved, it is incorporated into the final divorce decree. This means that the MDA establishes each party's legal rights and obligations after the divorce is finalized. The terms of the MDA may include provisions that provide for attorney’s fees to be paid by the other side if that party violates the terms of the MDA. This is why it is so essential for a person to be represented by an attorney during the MDA process. The MDA governs the critical aspects of the divorce process, and you need an attorney to ensure your interests are well represented.

Is a marital dissolution agreement a contract?

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Yes, a Marital Dissolution Agreement can be a valid and legally enforceable contract. The Tennessee Court of Appeals has explained that “a marital dissolution agreement may be enforceable as a contract even if one of the parties withdraws consent before the entry of judgment by the trial court, so long as the agreement is otherwise a validly enforceable contract.” If you are considering filing for divorce or have been served with divorce papers, you need an experienced family law attorney to help you during this difficult process.

Can a marital dissolution agreement also deal with alimony and child support?

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Yes, an MDA can also settle the amount of alimony and child support one party will pay the other. Alimony is often a hotly contested item during a divorce proceeding, but agreements indeed can be reached on these matters as well. Parties under the MDA can agree to pay more than the Child Support Guidelines provide.

What is a Marital Dissolution Agreement?

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A Marital Dissolution Agreement (MDA) is a divorce agreement, or divorce settlement agreement, in which two spouses agree to the division of their property or assets and agree to get divorced. The Tennessee Administrative Office of the Courts has a form for a marital dissolution agreement on its website. The MDA lists each parent’s personal property that they shall keep after the divorce. It also includes the debts that each party will assume after the divorce. The MDA must be signed by both parties and notarized. The judge hearing the divorce will have to approve the MDA before the divorce is approved and finalized.

Do courts have much discretion when it comes to deciding permanent parenting plans?

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Yes, Tennessee law provides that trial judges have broad discretion in determining permanent parenting plans that fulfill the best interests of the children involved. This means that it is essential that you have a qualified family law attorney to argue your case in court. If you are contemplating filing for divorce or have been served with divorce papers, then consider contacting an experienced family law attorney, such as Tiffany Hagar of the Lebanon-based law firm Hagar & Phillips.

What is the standard courts use in deciding whether to approve parenting plans?

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Much as with child custody decisions in general, the courts will employ a “best interest” determination in deciding whether to approve or deny a permanent parenting plan. The Tennessee Court of Appeals explained in 2020 that “the polestar behind any parenting arrangement remains the best interests of the children impacted.”

How does a court approve of a Permanent Parenting Plan?

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A court must approve a permanent parenting plan for a divorce to be considered valid and final. The court can approve a permanent parenting plan based upon the agreement of the parties at the time of a final divorce decree or upon a modified divorce decree. However, if the parties cannot agree on a permanent parenting plan, the court can order the parties to “appropriate dispute resolution proceedings.” This means that each side must present their case to a neutral, licensed mediator. In disputed proceedings, oftentimes each side will submit a proposed parenting plan and the court ultimately has to determine what is the proper permanent parenting plan based upon the best interests of the child or children involved.

What is a Permanent Parenting Plan?

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A permanent parenting plan is a plan required for any Tennessee divorce in which the parties have minor children that establish each parent’s time, responsibilities, and authority with regard to their children. It establishes the custody and visitation schedules for each parent. Tennessee law requires that each parenting plan do the following: (1) “provide for the child’s changing needs as the child grows and matures”; (2) set out the authority and responsibilities of each parent with regard to the child; (3) “minimize the child’s exposure to harmful parental conflict”; (4) “provide for a process for dispute resolution” (5) allocate to one parent the primary authority to make educational and health decisions regarding the child; (6) give day-to-day decision-making regarding the child to the parent whom the child is staying with at that time; (7) provide that the parties shall act in good faith to further best interest of the children; (8) require any parent who pays child support to provide yearly accounting of their income; and (9) require that any parent who does not have a valid driver’s license to ensure adequate transportation for the minor to the other parent.

Do stepparents have visitation rights?

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Possibly, though, the Tennessee statute on stepparent visitation rights states that this applies in “extraordinary cases.” This sometimes applies when the stepparent has a very solid relationship with the child, but then the parent to whom the stepparent is married dies. The other parent, who has custody of the children, then denies visitation privileges to the stepparent. The stepparent can then petition the court for visitation rights. It is a high burden for the stepparent to overcome the wishes of a fit parent on the other side. However, it can happen in certain cases.

Can grandparents have visitation rights?

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Yes, Tennessee does have a statute on grandparent visitation rights. It allows grandparents of parents to petition for visitation rights. However, the U.S. Supreme Court has ruled in Troxel v. Granville (2000) that grandparent visitation rights cannot trump the liberty interests of a fit parent’s liberty interest in rearing her child. Writing for the Court, Justice Sandra Day O’Connor explained: “Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” One must show that there would be substantial harm to the child to be awarded grandparents’ visitation in addition to the other requirements of the statute. However, grandparents can still petition for visitation rights, and a court may grant such. This may apply, for example, when the child’s mother or father (the daughter or son of the grandparent) is deceased as long as they meet the other statutory requirements.

What is virtual visitation?

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Virtual visitation refers to situations in which a parent cannot have physical visitation with her or his children but can speak to the children virtually through Facetime, Zoom video conferencing, Skype, Facebook Live, or some other form of similar communication. While courts prefer visitation to be physical, there are times when due to a parent’s employment or travel schedule, the visitation will need to be virtual.

What is supervised visitation?

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Supervised visitation is a type of visitation where the party has visitation in question with his or her children, but there is a third party there who supervises the visitation. In other words, this parent is not allowed to have alone time – what is called unsupervised visitation – with the children. This could be applied to a parent who has been either physically or emotionally abusive to the children in the past, has had a drug problem, has committed a violent act in the past, or who otherwise is not deemed trustworthy to have unsupervised visitation with the children.

Do noncustodial parents normally receive visitation?

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Yes, Tennessee law provides that, generally speaking, the noncustodial parent should receive visitation rights so that the relationship between the noncustodial parent and the child is not broken. The Tennessee law on visitation specifically provides that after the court awards custody, “the court shall, upon request of the noncustodial parent, grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship.” A key exception to this is if the court finds after a hearing that visitation with the noncustodial parent would endanger the child. In such circumstances, any visitation – if allowed at all – would likely have to be supervised visitation.

Criminal Defense FAQs

What is a common lesser included offense to a burglary charge?

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There is a lesser included offense to burglary called criminal trespass. Tennessee law defines criminal trespass as entering or remaining on the property of another without the consent of the owner. The key difference between burglary and criminal trespass is that a defendant who commits burglary has the intent to enter a building with the intent to commit a felony, theft, or assault. The person who commits criminal trespass does not have that same intent. Tennessee law provides that it is a defense to the crime of criminal trespass if the defendant reasonably believed that she had the consent of the property owner or if the defendant left the property immediately upon request.

What if a person commits burglary and a victim suffers serious bodily injury?

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Tennessee law elevates the burglary offense when a person unlawfully enters a building or habitation with the intent to commit a felony, theft, or assault and a victim suffers serious bodily injury. This crime is called “especially aggravated burglary.” This crime carries even more punishment, as it is classified as a Class B felony. The idea behind this elevated burglary offense is that the law should punish this more because a victim suffered serious bodily injury.

What if a person commits the elements of the crime of burglary, but the place is a habitation?

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Tennessee law punishes the burglary of a home or habitation more severely. Such conduct constitutes aggravated burglary rather than burglary. In other words, if a person enters a building intending to steal or commit a felony, the person has committed the crime of burglary. But, if that same person instead enters a home with the same intent, the crime becomes aggravated burglary. Aggravated burglary carries a punishment of a Class C felony.

What does it mean to "enter" a building for purposes of burglary law?

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Tennessee’s burglary law defines entering as the “intrusion of any part of the body” or “intrusion of any object in physical contact with the body or any object controlled by remote control, electronic or otherwise.” Thus, if a person physically walks into a building, a person has entered. Technically, a person has entered a building if the person sticks his arm through an open building window.

What is the crime of burglary?

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Tennessee law defines burglary in four different ways. First, burglary involves entering a building other than a habitation or place where persons reside with the intent to commit a “felony, theft, or assault.” Second, burglary also includes the related conduct of remaining concealed inside such a building with the intent of committing such a felony, theft, or assault. Third, burglary involves the conduct of entering a building and committing a felony, theft, or assault. Fourth and finally, burglary involves the entering of “any freight or passenger car, automobile, truck, trailer, boat, airplane, or other motor vehicle” with the intent to commit felony, theft, or assault. Thus, the essence of the crime of burglary is entering a building – or vehicle – with the intent to commit a felony, theft, or assault. Burglary is generally classified as a Class D felony. However, if the person burglarizes a car or other vehicle, that type of burglary is classified as a Class E felony. A key aspect of this crime is intent. The defendant must enter the building with the intent to commit a felony, theft, or assault. Oftentimes, the state attempts to prove intent under the burglary laws but focuses on the manner in which the defendant entered the building. For example, if a defendant breaks a window and enters the building, there is a good argument that the defendant entered with intent to commit a crime. However, if a defendant simply walks through an open door, there is an argument that the defendant did not enter with the required intent to commit a felony.

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