Non-compete agreements in Tennessee

Are non-compete agreements enforceable in Tennessee?

It depends. Generally speaking, non-compete agreements, also called ‘covenants not to compete’, are disfavored in Tennessee. See Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471 (Tenn. 1984). Courts interpret these agreements strictly in favor of the employee, in part because the agreement is a restraint on trade. Having said that, courts will uphold non-compete agreements if there is a legitimate business interest to be protected and the agreement sets reasonable time and territorial limitations. Id.

What makes a non-compete agreement reasonable?

When deciding whether a non-compete agreement is reasonable, Tennessee courts will consider the following relevant factors:

1. the consideration supporting the agreement;
2. the threatened danger to the employer in the absence of the agreement;
3. the economic hardship imposed on the employee by the agreement; and,
4. whether the agreement is against the public interest.

Additionally, the time and territorial limitations must be no greater than necessary to protect the employer’s legitimate business interest. In other words, a company cannot expect a court to uphold a non-compete agreement which purports to prevent an employee from ever taking a job with another company in the same general line of work.

Does the employer have a legitimate business interest which deserves protection?

Obviously, employers cannot restrain ordinary competition. Therefore, employers must show that without the non-compete agreement, the employee would gain an unfair advantage in future competition with the employer. Id.

Courts consider the following to determine whether an employee would have an unfair advantage:

1. whether the employer provided the employee with specialized training;
2. whether the employee is given access to trade or business secrets or other confidential information; and,
3. whether the employer’s customers tend to associate the employer’s business with the employee due to the employee’s repeated contacts with the customers on behalf of the employer.

Of course, an employer does not have a protectable interest in the general knowledge and skill of an employee. Id. However, an employer can typically prevent former employees from using its trade or business secrets or other confidential information in competition with the employer. While figuring out what constitutes a trade secret is generally easy, determining what constitutes confidential information can be much more difficult. Indeed, in one particular case, a Tennessee court held that customer lists, customer credit information, pricing information, and profit and loss statements did not constitute confidential information because such information is easily available from sources other than the employer. Id.

If you are an employee with a potential non-compete dispute or an employer looking to prevent unfair competition and/or protect confidential information from your competitors, you need a business litigation lawyer Memphis knows and trusts to handle the matter for you.

Call us today at 901.372.5003.

Child Support Lawyer Memphis, TN

Parents are eligible to receive child support payments from another parent as a result of divorce. Parents can also make a request for child support in a paternity action in juvenile court. Unfortunately, many parents go through the child support process without understanding how payments are calculated.

How is Child Support Calculated?

In the state of Tennessee, guidelines are in place that help to calculate how much child support must be paid. Deviations from the guidelines may occur if the Court finds that it is in the best interests of the children.

The Tennessee guidelines require that the combined monthly gross income of both parents first be determined. This means that it is necessary to add up income from all sources from both parents. The gross income is then used to determine how much basic support the child or children will receive. This basic support amount is affected by the number of children the parents have and the number of days of parenting time with each child.

Credits are also given for other supported children, medical expenses, day care, and health insurance coverage.Once the appropriate amount of basic support is determined, each parent becomes responsible for a percentage of that support amount equal to the share of the combined family income he or she earns.

Child Support Enforcement

Child support orders in Tennessee are generally enforced by garnishing the wages of the parent who is required to pay. Wage garnishment means that when a child support order is issued, money is taken directly from the paycheck of the parent who is obligated to pay.

When this method of enforcement is not sufficient to ensure that a parent pays, there are other enforcement methods used by child support services or by the court. The court, for instance, may hold the delinquent parent in contempt. The delinquent parent may be reported to the credit bureau; may have his or her driver’s or professional license taken away; may have liens placed on property or have tax returns seized; and may sometimes face criminal charges.

Modifying Support Orders

In some cases a substantial change in circumstances will occur that will result in a need for modification of child support. At such time, parents may request that the court or child support services review the order to determine if modification is appropriate.

Tennessee has outlined rules for when modification is appropriate and specifies that modification will be granted if there is a “significant variance.”  Essentially, this means that unless there should be a 15 percent difference between the current support order and the new proposed child support modified order. As such, the new amount of support must be 15% more or less than the old amount of child support.


Wiseman Bray Attorneys

If you are in need of help with child support issues, or have other family law related questions, and need counsel to discuss family law issues, call or schedule a consultation with our family lawyer Memphis, TN attorneys at Wiseman Bray PLLC today.  Call our office at (901) 372-5003 to ask for a consultation!

When can a subcontractor file a lien?

Under Tennessee law, a subcontractor is considered an indirect lien claimant since he or she typically does not have a contract with the owner of the property. Even though a subcontractor does not have a contract with the owner, he or she might still have lien rights. To determine if a subcontractor has lien rights, you must consider the following: Did the subcontractor contribute to an improvement in real property? Is the improvement part of a residential or commercial project? Has the subcontractor taken the necessary steps to ensure he or she has not lost whatever lien rights he or she may have had?

Improvements

In most situations, this is obvious. The subcontractor has either performed services or delivered materials as part of a construction or renovation project that permanently alters or “improves” the real property.

Residential or commercial property

For subcontractors, Tennessee law treats residential projects and commercial projects differently.

Residential projects

Generally speaking, subcontractors do NOT have lien rights for improvements made to residential property. One exception in which a subcontractor does have lien rights against residential property is when the owner is acting as the general contractor. In that situation, the subcontractor has a direct contract with the owner/general contractor. As an aside, a subcontractor may have a cause of action against an owner that is acting as the general contractor even if their contract is not in writing.

Commercial projects

Subcontractors have lien rights for improvements to commercial property. However, they must follow specific statutory requirements or they risk losing those rights. Subcontractors must send a Notice of Nonpayment to the owner and general contractor to keep their lien rights. Tennessee law has strict requirements for Notices of Nonpayment. Subcontractors must include very specific information and must send their Notice timely otherwise they risk losing their lien rights. After sending a timely Notice of Nonpayment with all the required information, subcontractors must then send a copy of their Notice of Lien to the owner and general contractor too. Once both the Notice of Nonpayment and Notice of Lien have been timely sent, a subcontractor can file his Notice of Lien.

Enforcing a valid lien

To enforce a valid lien claim, a subcontractor must file his or her lawsuit within ninety (90) days of their Notice of Lien. If they fail to file an appropriate lawsuit within that statutory time frame, he or she will lose his or her lien rights.

If you are dealing with a general contractor that has not paid, you need a construction lawyer Memphis trusts to help you through the process.

When Uber Fails to Give You a Safe Ride

Many people take Uber as a way to get home after a party, to work if their car is in the shop, or if they enjoy having another person shuttle them to and from. Uber has become a popular resource that is often viewed as a safe form of travel. If a rider were to ever be involved in an accident, he or she may be unsure of how to respond. It can take people by surprise to be in the middle of an Uber lift, and then be part of an unexpected car crash. Any person who was in a car accident, whether as driver or passenger, should put their health first and get a medical exam right away.

Here in this article, we have answered a few questions about Uber rides, and what you can do to take action if you suffered injuries as a rider.

If my Uber driver gets hit in an accident, how should I respond?

Those who were riding as an innocent passenger in an Uber, may have an urge to flee the scene of an accident. But, by doing so you could be greatly hindering your chances of receiving compensation if you found out later you did in fact suffer injuries due to the fault of another. It may be best to respond just as if you were part of any other kind of accident by doing the following:

  1. Call 911 so police and an ambulance can arrive for support and officially document the collision.
  2. Examine yourself for injuries, and if you have sustained any ask the medical team to do an exam at the scene.
  3. Gather the information of the Uber driver and the other driver involved in the crash, including their name, method of contact, insurance carrier, driver’s license number, and vehicle details.
  4. Keep an eye out for any aches, soreness or bruises that may arise in the days following the incident, and go to your doctor for another exam if you have any concerns.
  5. Consider meeting with an attorney for legal advice if your injuries cost you money, as you may be eligible for monetary compensation.

If I am going to meet with an attorney, what information should I bring?

The more information you bring to your car accident lawyer Dekalb County, GA residents trust about the accident, the better he or she can advise you on what steps to take next. An attorney can not only provide guidance, but representation too if you decide to file a lawsuit after all. If this is your first time talking with an attorney, you should bring along the following details:

  • Copy of the accident report taken by officer
  • Contact information of any witnesses or other riders who were with you at the time of the crash
  • Receipts for medical costs, emergency care and/or hospitalization
  • Doctor’s exams and diagnostics regarding your accident injuries
  • Other damages or related information about what happened
  • Receipt of costs if you had paid for the Uber ride
  • Photographs of the scene and/or visible injuries

 


 

Thank you to our friends and contributors at Andrew R. Lynch, P.C. for their insight into personal injury and uber riding.

Whose fault is it anyway? Pedestrian hit by a vehicle.

We have all heard news reports of a pedestrian being struck by a vehicle.  Here in Memphis, it seems pedestrians are hit at alarming rates.

In one common scenario, the injured pedestrian is hit while crossing a public street outside of the designated crosswalk.  That is precisely what happened to a friend of mine last year.  He was “jaywalking” when he was hit by a speeding vehicle.  Thankfully, he recovered well and is back at work.

Interestingly, when I talked about his accident with our common friends, most assumed that because he was jaywalking, he is at fault and cannot recover for his injuries.  However, despite what you might initially think, these types of accidents are not so straightforward.  Drivers are not allowed to plow into pedestrians simply because they are crossing the street outside of a designated crosswalk.  Indeed, these matters are highly fact-dependent.  Was the driver talking on his or her cell phone, speeding?  Was he or she under the influence of drugs or alcohol that might have slowed his or her reaction time down?  What other factors might have contributed to the accident?

In a case involving a jaywalking pedestrian, whose fault is it anyway?

Tennessee law – comparative fault generally

Historically, the general rule was that if a plaintiff contributed to the accident, he could not recover for his injuries.  In Tennessee, the rule initially stated that “if a party, by his own gross negligence, brings an injury upon himself, or contributes to such injury, he cannot recover;” for, in such cases, the party “must be regarded as the author of his own misfortune.” Whirley v. Whiteman, 38 Tenn. 610, 619 (1858). Subsequent court decisions followed that same general rule that a plaintiff’s contributory negligence completely barred recovery (citations omitted).

In 1992, the Tennessee Supreme Court overturned that general rule, commonly referred to as contributory negligence, and “conclude[d] that it [was] time to abandon the outmoded and unjust common law doctrine of contributory negligence and adopt in its place a system of comparative fault.” McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992).  The Supreme Court discussed the two (2) different types of comparative fault systems used in various states around the country (i.e. pure comparative fault and modified comparative fault).  Under a pure comparative fault system, “a plaintiff [that is] responsible for 90 percent of the negligence that caused his injuries nevertheless may recover 10 percent of his damages.” Id.  In a modified system, “plaintiffs recover . . . only if the plaintiff’s negligence either (1) does not exceed (“50 percent” jurisdictions) or (2) is less than (“49 percent” jurisdictions) the defendant’s negligence.” Id.  Ultimately, the Tennessee Supreme Court rejected the pure form of comparative fault choosing instead to adopt a modified comparative fault system.

More specifically, the Supreme Court held that “so long as a plaintiff’s negligence remains less than the defendant’s negligence the plaintiff may recover; in such a case, plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.” Id.

What does Tennessee’s comparative fault system mean for injured plaintiffs?

Ultimately, the jury, as the factfinder, determines what fault, if any, to attribute to the plaintiff.  The plaintiff’s proportional fault is then used to offset his or her ultimate recovery.

In a case involving a jaywalking plaintiff, the jury will undoubtedly hear about the plaintiff’s own fault for walking out into traffic, but that fact alone does not necessarily mean he cannot recover for his injuries.  Of course, that does not mean the jury will ignore his fault.  Indeed, a jury is likely to attribute some portion of fault to the plaintiff.  The amount of fault a jury may give the plaintiff will, of course, vary from case to case.

To illustrate how a plaintiff’s fault effects his recovery, let’s assume a jury determines that a jaywalking plaintiff is 25% at fault and the driver defendant is 75% at fault, then the plaintiff’s recovery would be reduced by 25% of the total damages.  Therefore, if the jury awarded $100,000 in damages, the plaintiff’s net recovery would be $75,000 (before case expenses & fees) taking into account his 25% fault.

Of course, these types of cases are highly fact dependent and, often times, difficult to prove.  If you or someone you know was involved in an accident as a pedestrian or otherwise, you need an experienced attorney to help you analyze your potential case and guide you through the legal process.

If you need help with a potential personal injury claim, call us today at (901) 372-5003 for a free consultation.

Deadly Shooting at The Park at Hermitage Apartments in Nashville, TN

apartment crime lawyer memphis tnCrime at Nashville, TN apartment complexes continues.

Just this week, a man was shot in the back at a pool at The Park at Hermitage Apartments near Old Hickory Boulevard, just south of Interstate 40, in Nashville, TN. According to the news we’re reading, witnesses say that two men wearing dark clothing and masks approached victims at the apartment’s pool. The gunmen tried to rob the group and shots were fired. According to News Channel 5 in Nashville, TN, the victim was taken to Vanderbilt University Medical Center with critical injuries.

Does the victim have a claim against the apartment complex where he got shot?

Maybe. There are many factors to consider. In Tennessee, apartment complex owners and managers must take reasonable measures to protect tenants and guests from foreseeable criminal attacks. Whether the victim would be able to recover against the The Park at Hermitage Apartments depends on a number of factors, including, but not limited to, the facts of how the incident occurred, security measures provided at the apartment complex, and crime levels for the apartment complex and surrounding neighborhood. According to the news report, 67 crimes have been reported within a half a mile of the apartment complex since the beginning of June.

Are you the victim of an apartment crime or apartment shooting? If so, call the apartment crime lawyer Nashville, TN knows and respects.

If you are the victim of a serious injury due to apartment crime, please call Wiseman Bray PLLC today at 901-372-5003. We’ve helped other crime victims like you, and we can help YOU recover your damages if apartment management failed to take reasonable measures to protect against foreseeable criminal attacks. Wiseman Bray PLLC is an apartment crime lawyer Nashville, TN knows and trusts. We will meet or speak with you and discuss whether you might have a case at no charge.  Call us today.

Alimony Awards in Divorce: Family Law Memphis, TN

Alimony family law Memphis, TN attorneys can help you understand the types of alimony. Alimony is financial support paid by one ex-spouse to the other after the marriage has legally ended. Alimony is also referred to as spousal support. Further, parties may seek alimony during a divorce or separate maintenance claim. However, this post will focus on alimony awarded in divorce. A party’s need, and the other party’s ability to pay, are used to determine an award of alimony.

Tennessee’s Alimony Factors

Courts consider the following factors:

  1. The relative earning capacity, obligations, needs, and financial resources of each party;
  2. The relative education and training of each party;
  3. The ability and opportunity of each party to secure such education and training;
  4. The necessity of a party to secure further education and training to improve such party’s earning capacity to a reasonable level;
  5. The duration of the marriage;
  6. The age and mental condition of each party;
  7. The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic, debilitating disease;
  8. The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;
  9. The separate assets of each party, both real and personal, tangible and intangible;
  10. The marital property division;
  11. The standard of living of the parties established during the marriage;
  12. The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
  13. The relative fault of the parties (who is more to blame) in cases where the court, in its discretion, deems it appropriate to do so; and
  14. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Types of Alimony

Temporary alimony can be granted while the divorce is in progress, to help until the divorce is final. When the divorce becomes final, there may or may not be an order for alimony after the divorce. If alimony after the divorce is awarded, that amount could be higher or lower than the temporary amount. In addition to the monthly amount, the type of alimony is very important. There are four types of alimony in Tennessee: alimony periodic alimony, transitional alimony, rehabilitative alimony, and lump-sum alimony. The type also dictates the circumstances that the alimony obligation may terminate or be modified.

 


Wiseman Bray Attorneys

If you are considering filing for divorce, or have other family law related questions, and need counsel to discuss family law issues, call or schedule a consultation with our family lawyer Memphis, TN attorneys at Wiseman Bray PLLC today.  Call our office at (901) 372-5003 to ask for a consultation!

Injured by a USPS driver? You might be able to sue the USPS.

Claims against the postal service can be tricky because the law with respect to these types of claims is unique.  Unfortunately, injured parties cannot simply file a lawsuit against postal service like you would against any other negligent driver.  Instead, you must comply with the Federal Tort Claims Act (“FTCA”).  Running afoul of the FTCA might negatively affect your rights.  As such, you need an experienced personal injury lawyer Memphis trusts to help you navigate this unique area of law.

United States Postal Service delivery vehicle

A brief history on suits against the federal government

Years ago, people could not even sue the federal government based on the legal doctrine of sovereign immunity, which is basically lawyer-talk for the notion that the government has to give you permission to sue it.  Stated differently, the federal government has to waive its sovereign immunity and consent to being sued.  Thankfully, Congress did just that by passing the Federal Tort Claims Act in 1946. 28 U.S.C. §§ 1346, 2671-2680.

 

Specifically, the FTCA allows suit against the federal government:

[F]or money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1).

As you can see, the FTCA is broad in that it allows injured parties to bring suit for the negligence of a government employee.  However, there are several unique aspects of the FTCA that can be tricky.

What’s different about claims brought under the FTCA?

  1. Administrative process

The most significant difference between filing a claim against a private individual and bringing one against the federal government for its employee’s negligence is the pre-lawsuit administrative process.  For claims brought under the FTCA, claimants must file a claim with the appropriate federal agency before filing their lawsuit. 28 U.S.C. 2675(a).  If the claimant does not comply with the administrative claims procedure, he or she cannot file suit in federal court and risks losing his or her rights altogether.

  1. Statute of limitations

Another notable difference is the statute of limitations for FTCA claims.  The FTCA replaces the state statute of limitations with a federal statute. See Chomic v. United States, 377 F.3d 607, 610 (6th Cir. 2004).  FTCA claims are subject to two (2) different limitations periods under 28 U.S.C. §§ 1346(b)(1):

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

As you can see, the FTCA essentially has two (2) different statutes of limitations.  One for the administrative claim and another for the eventual lawsuit if the claim is denied or ignored.

  1. Attorney fees

Another significant difference is that the FTCA establishes a cap for attorney fees of 25% for litigated matters and 20% for claims resolved during the administrative process. 28 U.S.C. § 2678.

Exceptions to the waiver of sovereign immunity

Under the FTCA, there are several types of claims for which the federal government retains its sovereign immunity and does not let individuals file suit regardless of whether a federal employee was negligent.  This is commonly referred to as an exception to the waiver of sovereign immunity.  One notable exception is for discretionary functions.  Pursuant to 28 U.S.C. § 2680(a), injured parties cannot sue the federal government for “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”  Application of the discretionary function exception can be complex.  At its core, though, the discretionary function applies (meaning the government cannot be sued) when a government employee is exercising permissible policy judgment. Stated differently, the exception does not apply when there is a violation of a mandatory policy. See United States v. Gaubert, 499 U.S. 315, 322-325 (1991).

The discretionary function exception along with several others can be difficult to analyze and tricky to navigate.  If you have been injured in an accident with a USPS employee, you need an attorney that understands the unique requirements for bringing claims under the Federal Tort Claims Act.

If you need help with a potential FTCA claim, call us today at (901) 372-5003 for a free consultation.

Mental Health Records in Custody Proceedings

During custody proceedings, including divorce, Tennessee courts have a duty to protect the best interests of children. Courts must also respect patient privacy and encourage individuals to seek treatment. When one parent alleges that another parent has mental health issues, Courts balance the interests of the children and the privacy of parents. The Tennessee Court of Appeals addressed these concerns in the case of Culbertson v. Culbertson, 455 S.W.3d 107 (Tenn. Ct. App. 2014).

The Culbertson allegations.

The mother alleged that she should be named as the primary residential parent. The mother alleged that the father had a history of mental health issues, including depression. In response to the allegations, the father denied that he was incapable of caring for the minor children. He also agreed to submit to a mental health evaluation by a licensed psychologist. Pursuant to Tennessee law, a party can agree to a Rule 35 health evaluation.

The psychologist concluded that the father did not represent a threat of harm to his minor children. He also agreed that father should be permitted to have regular parenting time with his minor children. Not satisfied, the mother requested that the father submit to a second evaluation. Additionally, she also asked for all of his mental health records from each and every mental health professional.

The mother argued that it was necessary to have all of father’s records to challenge the findings from the first evaluation. She also argued it was necessary to demonstrate father’s mental health status to the court. Father argued that Tennessee protects the confidential records of individuals pursuant to a psychologist-patient privilege. As such, mother could not access the records.

After this, father and mother submitted to a joint evaluation by a second psychologist. During this second evaluation, the father permitted the psychologist to discuss the case with prior mental health practitioners. Ultimately, the second psychologist agreed with the conclusions of the first evaluation. Specifically, father did not represent a threat of harm to his minor children. The second evaluation concluded that father should enjoy regular time with his children. After this, mother requested all of father’s personal, confidential mental health records again.

The Court’s conclusions.

Ultimately, the Court of Appeals mostly agreed with father. Specifically, the Court of Appeals concluded that it is vital to protect the psychologist-patient privilege in Tennessee. The rationale of the Court was that individuals should be open and honest with their mental health professionals. Further, the Court reasoned that if the mother gained access to father’s records, mental health treatment would be discouraged.

The Court further reasoned that there was no need for mother to gain access because two psychologists had evaluated father. They both agreed that he did not represent a threat of harm to his minor children. As such, the submission to a Rule 35 evaluation struck a balance between the best interests of the minor children and father’s privacy. As such, if you are concerned that your spouse or a parent of your children may represent a threat of harm to your child or children, contact a family lawyer Memphis, TN trusts.


Wiseman Bray Attorneys

If you are considering filing for divorce, or have other family law related questions, and need counsel to discuss family law issues, call or schedule a consultation with our family lawyer Memphis, TN attorneys at Wiseman Bray PLLC today.  Call our office at (901) 372-5003 to ask for a consultation!

Contact a Family Lawyer Memphis, TN if Life Insurance is Changed During Divorce Proceedings

Family Lawyer Memphis, TN

Tennessee Injunctions upon Filing Divorce.

Ask a family lawyer Memphis, TN about Tennessee law, which requires these injunctions. At the time a spouse files a complaint for divorce in Memphis,  TN, a set of automatic injunctions go into place.   They prevent either of the parties from taking certain actions. The parties are prevented from making changes to life insurance policies, hiding or disposing of assets, relocating with minor children, and harassing one another. These injunctions remain in place until the divorce is final or dismissed.

Unfortunately, all too often, some parties fail to abide by these rules.  A party may, in violation of the Court’s order, change life insurance beneficiaries or dispose of an asset. There are a number of remedies the other party can seek through a family lawyer Memphis, TN in order to rectify these issues.  For example, the other party may be cited for contempt of court. These issues can have large implications for assets and life insurance policies. However, a party may die before a violation is remedied.

Remedying Violations After Death.

Fortunately, the Tennessee Supreme Court took up this very issue for the first time in Coleman v. Olson. In this case, a wife filed a complaint for divorce against her husband. She then immediately served the complaint on him, and the injunctions went into effect. Unfortunately the wife became seriously ill a week after filing for divorce. While in the hospital she changed the beneficiary from her current husband to her mother. This change violated those injunctions. Soon thereafter, the wife died, and the life insurance company paid her mother all of the proceeds.

The Court could have directed that the husband be renamed as beneficiary, if the wife was not dead. However, upon a party’s death, divorce proceedings abate, and the remaining spouse becomes a widower, not a divorcee. As such, the statutory injunctions expire at the time of a party’s death.  This leaves the Court stuck since it does not have any way to enforce the injunctions or remedy the violation. Thus, presumably the husband would have been left without a remedy.

An Equitable Solution.

The Tennessee Supreme Court concluded that trial courts continue to have the equitable power to resolve such a violation. This remains true even though the divorce proceedings end at the time of the other parties’ death. The Court is empowered to consider an equitable result. The Court may use its discretion to award the life insurance proceeds among the widower and the other potential beneficiary.

In this case, the Court would therefore have the jurisdiction to decide how the proceeds should be divided between the husband and the wife’s mother. It may be equitable for all, a portion, or none of the proceeds to go to the husband. Tennessee trials courts have the discretion to fix a violation based on the circumstances. If the Court concludes that it is more equitable for the widower to receive all of the proceeds, then it may do so. Ask a family lawyer Memphis, TN trusts regarding an equitable remedy for these situations.


Wiseman Bray Attorneys

If you are considering filing for divorce, or have other family law related questions, and need counsel to discuss family law issues, call or schedule a consultation with our family lawyer Memphis, TN attorneys at Wiseman Bray PLLC today.  Call our office at (901) 372-5003 to ask for a consultation!