The 28th Edition of The Best Lawyers in America© Recognizes Wiseman Bray Attorneys

Wiseman Bray AttorneysWiseman Bray PLLC is pleased to announce that attorneys Austin Rainey and Will Patterson were recently selected by their peers for inclusion in the 28th Edition of The Best Lawyers in America©. This is the second consecutive year that Austin Rainey and Will Patterson were recognized by Best Lawyers.

 

AUSTIN T. RAINEYAustin Rainey was recognized for his high caliber of work in the practice area of Personal Injury Litigation – Plaintiffs.

 

 

 

Will Patterson was recognized for his high caliber of work in the practice areas of Commercial Litigation & Personal Injury Litigation – Defendants.

 

 

 

For more than three decades, Best Lawyers has been regarded – by both lawyers and the public – as the most credible measure of legal integrity and distinction in the United States. As such, Lindsay and Will’s recognition by Best Lawyers symbolizes excellence in practice.

Inclusion in Best Lawyers is based on a rigorous peer-review survey comprising more than 9.4 million confidential evaluations by top attorneys. Best Lawyers’ founding principle remains unchanged and forms the basis of their methodology: The best lawyers know who the best lawyers are, and attorneys do not pay to participate or be recognized. Best Lawyers lists are published in top-tier business and legal publications such as The Washington Post, The Wall Street Journal, and The New York Times.

For more information, check out the Best Lawyers website.

The 27th Edition of The Best Lawyers in America© Recognizes Attorneys Lindsay Jones and Will Patterson

Wiseman Bray PLLC is pleased to announce that attorneys Lindsay Jones and Will Patterson were recently selected by their peers for inclusion in the 27th Edition of The Best Lawyers in America©.

probate lawyer in memphisLindsay Jones was recognized for her high caliber of work in the practice areas of Trusts and Estates and Litigation- Trusts and Estates.

 

 

Will Patterson was recognized for his high caliber of work in the practice area of Commercial Litigation.

 

 

For more than three decades, Best Lawyers has been regarded – by both lawyers and the public – as the most credible measure of legal integrity and distinction in the United States. As such, Lindsay and Will’s recognition by Best Lawyers symbolizes excellence in practice.

Inclusion in Best Lawyers is based on a rigorous peer-review survey comprising more than 9.4 million confidential evaluations by top attorneys. Best Lawyers’ founding principle remains unchanged and forms the basis of their methodology: The best lawyers know who the best lawyers are, and attorneys do not pay to participate or be recognized. Best Lawyers lists are published in top-tier business and legal publications such as The Washington Post, The Wall Street Journal, and The New York Times.

For more information, check out the Best Lawyers website.

 

 

Can You Remove Your Spouse from Your Home?

Family Lawyer

While going through the process of divorce, your marital property is still shared between you and your spouse. If both of you refuse to leave the family home before finalizing the divorce, it can lead to some awkward situations. This is particularly true if the divorce is hostile or contested. Is there a way for you to keep your spouse out of the family home before you finalize the divorce?

Are You Both on the Title?

If the two of you share the title of the home, then you legally cannot bar your spouse from entering the premises in most circumstances. He or she may have every right to be there. While most couples work out an arrangement, you cannot kick your spouse out of the home without taking the proper legal measures under serious circumstances. Even then, if your spouse pays any of the bills or utilities, he or she may have a case to enter the home.

Is Your Spouse Abusive?

If there is a history of domestic violence or if you do not feel safe with your spouse in the home, then you can file for an order of protection. While a judge will have to review your petition, your spouse will not be present. This is to protect you. Based on the petition, you may be able to receive a temporary protective order, with a hearing within 15 days.

When you have a protective order, your spouse cannot approach you. He or she will have to stay out of the home. At the full hearing, you may need to show evidence and have witness testimony about your spouse’s abuse. If the judge orders an extension on the order of protection, then your spouse will still have to stay away from you. If he or she violates the order or shows up at the house, you may call the police.

If you want your home to yourself during a divorce, you should always discuss your options with a lawyer. It is not always clear cut how you should keep him or her out. While some lawyers may suggest that you change the locks on the home, there are circumstances where you may not be able to. Likewise, you may still need to figure out who will pay the bills or if you should continue to share them. 

How Do I Know If I Should Request Alimony From My Ex?

Family Lawyer

Spouses who have decided to get divorced will probably need to have several emotional and tense discussions. One of these conversations is likely to be about whether alimony is needed. The intention of alimony is to eliminate unfair financial impacts that result from the divorce, particularly if one spouse made significantly more than the other or one didn’t earn any wage at all. Most divorcing couples will have to agree to some degree of alimony, even if it is only temporary while one gets on their feet financially. 

What are the considerations when applying for alimony?

Some questions you may want to ask yourself include things like whether you really need the support, if you are more concerned about being able to support your children, and if you are being fair in how much you want from your ex. Sometimes, former spouses can get resentful towards the other and want to find ways to seek revenge for the heartache. It is best to view alimony with a factual eye and realistically evaluate whether you need the support in order to have a reasonably similar lifestyle that you had during the marriage.

How do alimony amounts get calculated?

If possible, you and your former spouse can establish alimony terms amongst yourselves or through mediation. Then, you can submit it to the courts for final approval. However, if you aren’t able to reach an agreement regarding alimony then a family court judge will decide for you. While each state may have specific laws pertaining to alimony, in general, these are the factors the court considers when calculating alimony amounts: 

  • The age and health of each spouse (physical condition, diagnosis, disabilities, mental health struggles, etc.)
  • Whether one spouse needs further training or education to obtain employment
  • How long the couple was married (the less time you were married, the less money may need to be paid in alimony)
  • The ability of the paying spouse to financially support the one requesting alimony (the paying spouse must still be able to support themselves too)
  • The standard of living when they were married, since the courts don’t want to see one spouse suffer greatly financially while the other rebounds right away

What if my former spouse has refused to pay alimony?

If the court has established an alimony order, then your former spouse is required to abide by its terms. If he or she doesn’t, then you can notify the court of the failure to make payments, so they can contact the paying spouse and enforce repercussions if needed. If you have an amicable relationship with your ex, you may want to contact them and ask about the missed payments. If your former spouse has been paying on time and suddenly stops, it is possible that he or she had a sudden job change, has gotten injured, or has faced another setback. Otherwise, the court can use various measures such as suspending a license or garnishing money from your ex’s wages to get you your alimony payments. 

 

Is Equitable Distribution Always Equal?

Family Law

The state in which you live is the one where you need to file for divorce. Unless you have lived there for less than the required timeframe (often six months), then it is that state’s laws that will dictate the procedure you should file for divorce.

There can be numerous issues that stress you out during your divorce. The top two most cited examples are child custody and finances. When a couple goes to divide up the property and debt they have amassed over the years of their marriage, things can go south pretty fast. If you live in an equitable division state, you may want to read up on how the process works so you can get an idea about what you may get when the divorce is finalized.

What Does Equitable Distribution Mean?

If your state law says that property is split equitably during divorce, then the process is not cut and dry. First, the court will determine what you owned separately. This is anything that you had in your name before you got married. The items you owned, assets and debts, before you got married will remain with you. Everything you own jointly or secured during your marriage will be put in a marital pot for splitting.

Equitable division does not mean a 50/50 split. Instead, the court examines your married life and decides who gets more or less of the assets and debts. The process of equitable division is meant to be fairer, especially for the spouses who left the workforce to care for children.

What Does the Court Consider When Splitting Assets?

The court does not just do a cursory examination of your marriage to decide who gets what. A judge will want detailed descriptions and examples of each spouse’s contribution to the relationship. The court will commonly consider:

  • Who made the most money?
  • Was this able to happen because the other spouse sacrificed their career?
  • What was the emotional contribution of each spouse?
  • Did one or the other contribute more to the demise of the relationship?

If your state allows for divorces based on grounds or reasons, then you may cite if your spouse did something wrong to cause the marriage to fail. A judge may factor this in when deciding how much of the marital pot goes to you versus your spouse.

An equitable split may find you coming out with more assets and less debt, or you may be on the other end. It is best to consult with a family lawyer to explore this and other divorce issues more fully.

 


 

Frequently Asked Questions: Temporary Child Custody Orders During Divorce

Family Lawyer

The divorce process can take some time. When it comes to matters involving child custody, it doesn’t always make sense to wait until a resolution is reached to start implementing your child custody agreement. In some cases, it may even be challenging to sort out the details right away, especially when two people are in disagreement over how they will share custody of their children. Children can’t always wait for parents to sort out the details, which is where child custody orders come into play. You may need a child custody lawyer to help you negotiate agreements and help you to advocate for your needs. The following are answers to frequently asked questions regarding temporary child custody orders during divorce. 

What is a temporary child custody order?

Child custody issues can be litigious. You and your soon to be ex may have difficulty working out long term agreements. Children can’t wait. They need to know where they will be living and how their time will be shared, especially amidst the significant changes they will be facing when their parents are splitting up. Permanent agreements can be drawn out. Because of this, temporary agreements help establish a plan while a more long term agreement can be made. 

If my soon to be ex and I are having difficulty reaching an agreement, what will happen?

While some couples are able to reach agreements together on their own, you may need additional help to reach a temporary custody agreement. Your lawyer can help you by petitioning the court to establish temporary custody. When this occurs, the court will make decisions regarding temporary custody orders that are based upon the best interest of the child. 

When will a formal child custody agreement take effect?

Once a formal child custody agreement is reached, it will take the place of the temporary agreement that was once in place. Often, this may occur as your divorce reaches a resolution. However, it’s important to be aware that a child custody agreement can always be subject to change, especially as the needs of your child change over the years. 

Are there times aside from divorce that a temporary child custody order may take effect?

While temporary child custody orders may be granted while couples go through the divorce process, they can also take effect for other reasons. Examples of reasons one party may request a temporary child custody order include:

  • Military Deployment
  • Illness
  • The Child is at Risk

Before making any changes, it’s always in your best interest to speak to a child custody lawyer for their counsel. With their help, they can review your situation and ensure that you are making a decision that is in the best interest of both you and your children. 

Child custody matters are perhaps one of the most essential components to the divorce process. Your children are the most important people in your life. Make sure that you are able to reach an agreement with your ex that is fair and in your children’s best interest.


 

Thank you to the experts at Scroggins Law Group, PLLC., for their input into family law.

How To Revert to Your Maiden Name Following a Divorce

Divorce Lawyer

Shakespeare’s Juliet famously asked, “What’s in a name?” For many people, the answer is actually quite a lot. Your name may be the single biggest identifier in your life. To retain the name of an ex-spouse can be a constantly frustrating reminder of a difficult time in your life from which you may prefer to move on.

Fortunately, the law provides methods of changing your legal name at almost any time, for any reason or for no reason. However, some of these methods are more difficult and costly than others. If you are changing your name due to a divorce that is still in process, you can simplify the process by including the name change as part of your divorce.

Name Change By Petition

This is the most difficult and costly process, but it is available to any adult regardless of situation or marital status. You will need to fill out paperwork, file the forms, pay a fee, and attend a hearing. You may also have to undergo a criminal background check and publish a public notice in the newspaper.

If you changed your name when you got married, you probably already know that this process has been legally simplified for wives who take their husband’s names upon marriage. Interestingly, and perhaps unfairly, there are no such simplified avenues for a husband who wishes to take his wife’s surname upon marriage. Those husbands who wish to do so must file a petition as they would under any other circumstances.

Name Change Included in Divorce

If your divorce is still in process, you do not have to file a petition to change back to your maiden name. All you have to do is include a clause or counterclaim in your divorce documents stating that this is your desire and then testify to it at your divorce hearing. This should be allowed as long as you are returning to a name that you have used in the past. If, on the other hand, you wish to adopt an entirely new name, you will probably be required to file a petition.

Name Change by Amending Divorce Decree

If your divorce has already been finalized but you would still like to revert to using your maiden name, there may be a third option available to you. It may be possible to amend the divorce decree to reflect your wishes and obtain a court order to change back to your maiden name. However, this option may not be available in all states.

Regardless of how you revert to your maiden name, you will then have to change legal documents like your Social Security card and driver’s license to reflect the change. An attorney may be able to advise you on this and other legal matters related to divorce and family law.

Modifying Alimony Awards in Memphis, TN

Modifying Alimony Awards in Memphis, TN

Modification of alimony depends first on the form of alimony awarded, and then on the specific facts applicable to each case. Three of the four types of alimony may be modified under certain circumstances: alimony in futuro, rehabilitative alimony, and transitional alimony.  Alimony in solido cannot be modified under any circumstances, except by the agreement of the parties. Each of these types of alimony awards may be awarded during a divorce or legal separation and can be explained by the family lawyer Memphis, TN trusts.

Modifying Alimony in Futuro or Rehabilitative Alimony

Generally, both of these forms of alimony remain in the court’s control for the duration of the award and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances. A change in circumstances is “substantial” when it significantly affects either the obligor’s ability to pay or the obligee’s need for support. A change in circumstances is “material” when the change occurs since the date the alimony was ordered, and the change was not contemplated by the parties at the time of the award of alimony. When determining whether a modification of an alimony award is justified, the court must give equal weight to the need of the recipient spouse and the ability of the obligor spouse to pay.

One basis for a modification of an award of alimony in futuro may be the obligee’s cohabitation with a third party. Specifically, T.C.A. § 36-5-121(f)(2)(B) provides a rebuttable presumption in all cases involving alimony in futuro, where the alimony recipient lives with a third person, either that:

(i) The third person is contributing to the support of the alimony recipient and the alimony recipient therefore does not need the
amount of support previously awarded, and the court therefore should suspend all or part of the alimony obligation of the former
spouse; or

(ii) The third person is receiving support from the alimony recipient and the alimony recipient therefore does not need the
amount of alimony previously awarded and the court therefore should suspend all or part of the alimony obligation of the former
spouse.

However, such presumption does not automatically terminate the obligation. Rather, it requires the obligee to show a continued need for the support. As it relates to rehabilitative alimony, the court may modify the award if the recipient spouse is not able to become rehabilitated, despite reasonable efforts to do so. The court may modify the rehabilitative award, where doing so may lead to rehabilitation, such as where the recipient is not able to complete an educational program in the time allowed, due to illness, but may be able to do so with additional rehabilitative alimony. On the other hand, if rehabilitation is not feasible, the court may also order in futuro support, instead.

Modifying Transitional Alimony

Transitional alimony shall be non-modifiable unless:

(A) The parties otherwise agree in an agreement incorporated into the initial decree of divorce or legal separation, or order of
protection;

(B) The court otherwise orders in the initial decree of divorce, legal separation or order of protection; or

(C) The alimony recipient lives with a third person, in which case a rebuttable presumption is raised that:

(i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the
amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former
spouse; or

(ii) The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse.

T.C.A. § 36-5-121(g)(2). Once a substantial and material change in circumstances has been demonstrated, a court will take into consideration the alimony factors to determine what, if any, modification should be granted.


Wiseman Bray Attorneys

If you are in need of help with alimony issues, including enforcement or modification of alimony, 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!

Trucking Accident near Memphis, TN Causes Severe Injuries

Trucking Accident near Memphis, TN Causes Severe Injuries

Over this weekend, Erica Baggett and her family were heading to Mississippi from Nashville, TN for a football game when her husband says they were T-boned by an 18-wheeler near the Mississippi-Tennessee border.  According to news reports, Ms. Baggett was rushed to Regional One Health in Memphis, TN and is still receiving treatment.  Her son and husband were also in the car at the time of the accident, and a GoFundMe has been setup to help the family with rising medical costs as a result of this horrible accident.

What to Do Following a Collision with a Commercial Truck or 18 Wheeler

More than likely, you will require immediate medical attention after a truck accident. This is because most of these collisions involve serious and possibly even life-threatening injuries. After recovering, you should call a trucking accident lawyer Memphis, TN trusts. An attorney from our firm can arrange to meet you in a hospital or at your home. We may help you to file a police report if this has not already been done. If you are the parent, child, spouse, partner, or other immediate family member to a person who was incapacitated or killed in a truck accident, we encourage you to call Wiseman Bray immediately. We can help seek recovery against the driver of the truck and his/her company for damages they may have caused, including medical expenses incurred by you.

When to Consult a Memphis Trucking Accident Lawyer

Every year, thousands of people are injured in truck accidents in the United States. While the cause of each of these is different, there are typically similar factors involved–usually, negligence or carelessness. When this holds true, you may be able to seek legal representation to receive monetary compensation. Examples of negligence include:

  • Failing to signal
  • Reckless driving
  • Driving under the influence
  • Lack of driver training or experience
  • Speeding
  • Load violations
  • Faulty parts
  • Tire blowout
  • Broken axle
  • Brake failure
  • Improper maintenance on the truck
  • Poor road or weather conditions

It’s possible that more than one of the aforementioned was involved in your accident; for example, poor weather conditions could have exacerbated the effects of a tire blowout from an overloaded truck. Even if the cause of the accident is not listed above, you should contact a trucking accident lawyer Memphis, TN residents regularly consult for further advice.

What to Do When You Are Contacted By the Other Party’s Insurance Company

Sometime after your accident, you may be contacted by the insurance adjusters of another party. They may be seeking information about the collision or wish to get a statement from you. They might also claim to take responsibility for what happened, and follow up with a settlement offer. As tempting as this will be, it is in your best interest to decline everything. They are not on your side, and will be trying to settle for much less than you deserve, including payment for medical bills incurred by you, lost wages, pain and suffering, etc. At this point, you should seek further advice from a trucking accident lawyer Memphis, TN prefers from Wiseman Bray.

For Your Truck Accident Lawyer, Count On Wiseman Bray

When you are seeking a law firm who can offer a successful trucking accident lawyer Memphis, TN recommends, there are many to choose from, but there is only one like Wiseman Bray. For years, we have been fighting for innocent victims of truck accidents. Guided by our confidence, zealous approach, and determination to get results, we are recognized as a law firm who can offer a skilled trucking accident lawyer in Memphis, TN. To arrange a free consultation with one of our truck accident lawyers, please call 901-372-5003.

Tennessee Fraudulent Transfers to Avoid Creditors

Tennessee Fraudulent Transfers to Avoid Creditors

Pursuant to the Tennessee Uniform Fraudulent Transfer Act, creditors can seek to set aside certain fraudulent transfers. Creditors must prove that a fraudulent transfer occurred through actual fraud or constructive fraud.

Actual Fraud

Under the actual fraud statute, a plaintiff must prove that the transfer was made “with actual intent to hinder, delay, or defraud” a creditor. In determining actual intent to defraud a credit, the statute lists eleven (11) factors that may be considered. Those factors are:

(1) The transfer or obligation was to an insider;
(2) The debtor retained possession or control of the property transferred after the transfer;
(3) The transfer or obligation was disclosed or concealed;
(4) Before the transfer was made or obligation was incurred, the debtor had been sued or
threatened with suit;
(5) The transfer was of substantially all the debtor’s assets;
(6) The debtor absconded;
(7) The debtor removed or concealed assets;
(8) The value of the consideration received by the debtor was reasonably equivalent to the
value of the asset transferred or the amount of the obligation incurred;
(9) The debtor was insolvent or became insolvent shortly after the transfer was made or
the obligation was incurred;
(10) The transfer occurred shortly before or shortly after a substantial debt was incurred;
and
(11) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

Tenn. Code Ann. § 66-3-305(b).

The “Badges of Fraud”

Since proving fraudulent intent almost always requires circumstantial evidence tough, courts also consider what have been deemed “badges of fraud” in determining whether there was intent to defraud.

1. The transferor is in a precarious financial condition.
2. The transferor knew there was or soon would be a large money judgment rendered
against the transferor.
3. Inadequate consideration was given for the transfer.
4. Secrecy or haste existed in carrying out the transfer.
5. A family or friendship relationship existed between the transferor and the transferee(s).
6. The transfer included all or substantially all of the transfer’s nonexempt property.
7. The transferor retained a life estate or other interest in the property transferred.
8. The transferor failed to produce available evidence explaining or rebutting a suspicious
transaction.
9. There is a lack of innocent purpose or use for the transfer.

If a plaintiff is able to prove the existence of one or more of those factors or one of the “badges of fraud”, a presumption of fraud arises. Once that presumption has arisen, the burden shifts to the debtor to prove that there was no fraudulent intent in the transfer of an asset. Typically, debtors present evidence that one or more of the factors or “badges of fraud” is not applicable to rebut this presumption.

Constructive Fraud

If a creditor cannot show actual intent to defraud him or her, a credit may still show that a transfer still amounted to constructive fraud. To prove a constructive fraudulent transfer, a creditor has to prove that: (1) The creditor’s claim arose before the transfer; (2) the debtor was not paid a reasonable value for what was transferred; and, (3) the debtor was insolvent at the time of the transfer or became insolvent because of the transfer.

The Act addresses insolvency and states that a debtor is insolvent if either “the sum of the debtor’s
debts is greater than all of the debtor’s assets, at a fair valuation” or the debtor “is generally not paying
such debtor’s debts as they become due.” Thus, a debtor need not intend to fraudulently transfer an asset to avoid a creditor, if the debtor would otherwise be insolvent but for the transfer.


Wiseman Bray Attorneys

If you are creditor seeking to avoid the fraudulent transfer of a debtor, please call Wiseman Bray PLLC today at 901-372-5003. We’ve helped other creditors like you collect judgment, and we can help YOU recover your damages.  Call us today.