Annulment closes chapter on void marriage

I want to write a book. I likely won’t, but I really want to. The premise of the book would be the amazing things I have done in the nearly two years that I have been practicing law. Wait, not so much the amazing things I have done, but the amazing things that have presented themselves to me to do in the two years since I became a lawyer.

My first day of law school, we were told that it wasn’t that important to be in the top 10 percent of my class, because, in reality, ninety percent of us wouldn’t be. OK, so I wasn’t. There would be no big firm job, no righteous paycheck every month, no security of having dozens of lawyers to fall back on if I really had doubts about what I was going to do next. More importantly, no one would pay off my student loans so I wouldn’t be pre-occupied with making those payments at the end of the month.

There would also be no face time with a jury. I would miss out on all the things I came to believe lawyers did on a daily basis. Working for myself, I have done some amazing things in the past two years. I’m not saying that my work was amazing, but that I have been lucky enough to catch a case or two that offer truly amazing situations that, as I later would find out, few lawyers ever get to tackle. Like the annulment, for instance.

I few months ago, I had a would-be client come into my office and talk about ending her marriage. Unlike the majority of my clients wanting to end a marriage, this lady wanted to annul her marriage. I get this a lot. Most people don’t like to admit that they have failed in their marriage and want to get the marriage annulled rather than suffer through the indignity of being divorced. Most of the time, however, divorce is much more appropriate.

Annulment is an action in court to end a marriage that is void or voidable. Void marriages are marriages that are against the laws of Tennessee and should never have been allowed, while a voidable marriage is one that can be found defective and as such, can be set aside at the request of a party to the marriage. If a man marries his sister, that marriage might be found to be void. If a man marries a woman and that woman has no intention of living with him as husband and wife, but prefers to live with her previous lover while contemplating a divorce action complete with alimony, that might be a voidable marriage.

The Tennessee Code actually only allows for annulment if a party entered into a marriage before the age of 16, a marriage that can be voided by the courts upon a filing by the person or anyone acting on his or her behalf. You see, since a minor (like the 16 year old) can’t legally enter into a contract, and since marriage is, by law, a contract, the marriage can’t not be considered valid. So the child, I would suppose, through their parents acting in some sort of next-friend capacity, move the courts to annul the marriage. However, a lot of people ask for annulments hoping to have their marriages wiped off the books as never having happened to begin with.

Fortunately, for my would-be client, however, the common law, a gigantic absurdity of case law, from both this country and in some cases, England, allows for annulment in other instances also. My client (I seldom turn away a potential client. You never know if you can help them until you try.) When my paralegal Michelle came into my office and told me we had someone wanting an annulment, I smiled, thinking it was another situation where a person needed a divorce, but wanted to do otherwise. “No,” Michelle said. “You really want to talk to her. She might qualify.” With that, Michelle ushered the lady in, a woman in her 40’s educated, nice looking, with a professional bearing and a confident demeanor that told me she had already considered her options. I listened, although I was still skeptical. Her story was unique. She had married a few years ago, to a man entering into his second marriage. After a time, they realized that his first marriage was still valid. Let me rephrase that. He was still married to wife number one. He was married to number one when he walked down the aisle with number two. But surely, I thought, he had ended the marriage to number one in the two and a half years since then, right?

Nope. He was still married to the first wife. I told her that the law was vague on annulment, but under those circumstances, she might just qualify for the annulment. If, however, he completed a divorce from Number One before we could get in front of a judge, the judge might be more comfortable granting a divorce, so we would want to plead that in the alternative, just in case.

It seems his first wife had filed for divorce, he had signed a marital dissolution agreement, and then, assuming that the first wife would follow through to the bitter end, promptly moved on with his life. Wife number one did not follow through, and the marriage still existed, thank you, very much, even to this day. He knew he was still married and had done nothing to end it as of that date.

They were in agreement, she told me, that the marriage should be annulled, and that was what she wanted. If we absolutely had to, a divorce would be OK. But annulment was better.

We were in court a few weeks ago, and when the judge, Davidson County’s Philip E. Smith asked the husband if he was still married to the first wife, the man invoked his Fifth Amendment rights to self incrimination. You see, not only is bigamy, being married to more than one person at a time, grounds for annulment in Tennessee, it is a felony. Yikes.

The judge told me from the bench that although the man had not offered testimony on the subject, in civil court a judge could infer from a person’s silence that he was actually guilty of a crime. As such, he found evidence of a prior marriage, still subsisting, and granted the annulment.

In my mind, as we left the courthouse, I ticked off another unusual matter that I had accomplished in my first two years as a lawyer. I know there have been more unusual cases, and there will continue to be legal oddities that make me think and research and ponder. But for the moment, I will savor the opportunity to say that I have successfully prosecuted an annulment and feel a tinge of pride that another client left my office with exactly what she wanted. Another chapter closed in the book I am writing in my mind about some of the amazing things I have seen in my two years so far.

Court Sanctions Mother over Baptism of Kids

The Tennessean reported last week that a Mother in Shelby County might face a criminal contempt citation for baptizing her child without the consent of her ex-husband. This isn’t one of those stories designed to raise the blood pressure of people who think the government is trying to get Christianity out of our lives. This is a family law dispute that should remind everyone, especially those who are divorced and have children with their ex that your children’s other parent hasn’t just gone away, they still have a role to play in your children’s lives.

In this situation, the Mother, a Presbyterian, wanted to baptize the children (ages 5 and 7) early in their lives and their father, a member of the Methodist church, thought that the kids should not be baptized until they were older and could more appreciate the significance of what was happening. These two had been fighting over how to direct the children’s religious upbringing since before they married. They apparently sought counseling for this issue – in which church the children should be raised – before their wedding day, which I assume was before they had children.
Most of my clients are usually on the same page when it comes to raising their children in church. The majority realize that the best course of action is to allow one parent to take the lead in what church the kids attend, if they attend at all.

If the children have a weekend with the alternate residential parent, usually that parent takes them to the church he or she attends. Parties have to understand that the dynamics of raising children to attend church can often involve a lot of give and take and seem to be okay with that.

In the situation above, however, the Court in Memphis had decided that the decisions regarding when and if to baptize the children would be made by both parents and the parties (the parents, I mean) had apparently agreed to this arrangement, at least on paper. It wasn’t real clear if the final decree had been handed down as yet, but I can assume that the Court had ruled that the parents had to make these decisions together.

The trial court in Shelby County held the Mother in contempt for her actions, but the Tennessee Court of Appeals ruled that a criminal contempt citation, a much more serious outcome, was more appropriate. The Appeals court reasoned that this is not a religious issue, but a situation in which a person knowingly disobeyed a court order. The Mother can face 20 days in jail and a small fine.

I cannot imagine the Father wanted the Mother of his children put in jail for any reason – what kind of monster would rip his children from their mother? But the shoe might just fit in this scenario.

Parenting plans generally allow parents to delegate decisions regarding their children between themselves or to agree to make the decision jointly if they choose. In this case, the couple agreed to make religious decisions jointly. And since this dispute apparently goes back to pre-marriage, they were still at odds over it.

Tennessee’s standard parenting plan calls for disputes of this nature to be mediated if the parents cannot or will not agree on any outcome. If the mediation is successful, the court then stands aside and the parents do what they agreed to do, unless the court believes the action is not in the best interest of the children. If the parents can’t agree, the trial court gets involved and makes a decision.

That decision is usually a court order and the court order stands until the Judge says otherwise. And judges tend to not look favorably on having their Orders disregarded. If you are under a court order to do or not do something, be warned. Disobeying a Court Order can have serious consequences. If you have questions and want to discuss your child custody case with a lawyer, give me a call – 615-916-1600.

What are you doing for the next 18 years?

I went to court this morning to discuss a parenting time issue that had cropped up between two parties a good four or five years after their divorce had become final. Mind you, I was not the attorney for either at the time of the final decree, nor had I been there at all during the divorce. I was pressed into service to rescue the Mother from losing any and all contact with her children. The father had been pulling shenanigans over the years and was threatening to erode the Mom’s parenting time entirely if not checked at some point. We met with some success today and will continue to put things right as time passes, but the fight promises to be nasty and long winded.

The Mother thanked me and told me she was sure she would lose her kids forever had I not stepped in. She also hoped I had the longevity to last in the fight. I promised her I was in this for the long haul and would be there until her youngest child was 18, some ten years down the road. The look in her eyes at that point told me a lot. She hadn’t considered the length of the fight ahead of her. When she and her husband married years ago, they promised to have and to hold, until death. I doubt they thought it would be a fight to the death, but, you never know.

This is something you have to consider when you get married and have kids: Is this person someone you want to fight with for the next 18 years? As a parent, you have to be aware that your former spouse will be a fixture in your life until your youngest child hits college, or beyond. I know it is a daunting thought, but the fact remains that if you thought the divorce was a fight, you can probably look forward to more of a fight as the years tear on.

Other clients have told me that their soon-to-be ex-spouse was a mean vindictive person, but they never thought they would turn on them. I can’t imagine why? If the spouse was a nasty so-and-so in his or her dealings with everyone else in life, why wouldn’t they be a butt-head in your divorce? Leopards don’t often change their spots. If the spouse was a money grabbing pig during the marriage, he or she will likely live in a state of tardiness when it comes to child support or alimony. And yes, it will last until your youngest child turns 18.

I know - Hope springs eternal, everyone thinks their marriage will last a lifetime. Some do, and that is great. I love it when a client is able to patch things up with their mate and stay married. But I am never surprised when they come back a few months later explaining how they were foolish to have ever gone back. I guess the take-away here is, if anything, the person you married will be the person you divorce. And the type person they are when they were with you -- kind, sweet, mean, rotten, whatever -- will be the type of person you square off against when you go to court. And sometimes, especially when there are kids involved, the court fights are there for years to come.

Watching the Money Today Can Protect Your Tomorrows.

When everything is said and done, divorce comes down to simple math: How do you divide the assets and liabilities. Sad, its true. Divorce often takes an emotional toll on everyone involved. Both husband and wife suffer, along with the kids, grandparents and everyone else. I often find myself a little worse for wear in tough divorce matters, and I’m just the lawyer.

One thing I see a lot is the division of power in divorce cases. One party seems to understand what is going on, and the other is just completely baffled. This party wants to try to put things right in their marriage and refuses to see the reality of what is going on. And the reality simply is, the other party is slowly, but certainly depleting the marital assets. Hiding money, raiding 401(k)s, whatever.
I know, the courts will order both parties to not do this, but it does happen, and often right under the noses of the court. The reality is that the only thing you can do when you suspect your spouse is doing this is let your lawyer know what is going on and then take immediate steps to prove it. I have had a few clients call me up and tell me that their spouse was draining money out of the retirement plan and I needed to get the court to find them in contempt to make them stop and account for that money. I ask the client what proof they have and they tell me that they can see it in that turkey’s eyes. Then they get upset when I tell them that the judge will probably want more evidence than that to issue a contempt citation.
There are things you can do to keep an eye on everything that is going on. Look at the books. I don’t care if you are the husband or wife, the breadwinner or the stay-at-home parent. Keep an eye on the money. One, it is half yours and two, the cold, hard reality of it is, if you don’t watch the cash flow in your marriage, the cash may flow right out the door, leaving you with nothing.

Looking for the Money Now Saves Money Later

Keep copies of bank statements, brokerage accounts, tax returns, everything financial separate from the books your spouse has access to. Keep statements showing patterns of money flow and where the money is at any given time. Large shifts in balances might be innocent enough. But, it might be the first step in your spouse playing Houdini with your retirement account. Keep a slush fund available that the other party can’t get to so that if all else fails, you can still eat and pay bills. Keep a list of account numbers and other important data handy.
You might also run a credit report every now and then, not just on yourself, but your spouse as well. See what is going on that you might not know about. Look at new accounts that have been opened that are a surprise, and just keep a close watch on the money. If your spouse isn’t up to anything, they should not mind coming clean with you.
And you shouldn’t wait until you think something is wrong in your marriage to start scanning the horizon for trouble. Every marriage starts out happy. Trouble brews over time. Looking for trouble now might save you heartache later.

If you need advice on divorce or bankruptcy matters, please consider giving me a call. 615-916-1600.

The 10 Commandments of Cross Examination

Here are Professor Irwin Younger's Ten Commandments of Cross Examination. Professor Younger was a lawyer, judge, law professor, writer and legal historian. The Ten Commandments are an effective tool for pointing out flaws in your opponent's case and, if used properly will render even the most damaging witness moot. I post them because the website I had gone to before to get them had been taken down. I think these words should be preserved in as many places as possible.

1. Be brief.
2. Short questions, plain words.
3. Always ask leading questions.
4. Don't ask a question to which you do not know the answer.
5. Listen to the witness' answers.
6. Don't quarrel with the witness.
7. Don't allow the witness to repeat his direct testimony.
8. Don't permit the witness to explain his answers.
9. Don't ask the "one question too many."
10. Save the ultimate point of your cross for summation.