Posted On: April 26, 2010

Domicile For Divorce: Residence In A Mobile Society

Let us suppose that a husband and wife have two homes. The big house is in Germantown and the little house is in Sardis. A disagreement erupts and wife moves into the house at Sardis while husband rents a house at Moon Lake, AR. Both parties still call the big house home with the eventual intent to return there but a suit for divorce is filed in Arkansas. The legal issue is which state has jurisdiction (legal authority) to grant the divorce?

Judicial power to grant a divorce is based on domicile. Tennessee courts have no divorce jurisdiction unless one of the parties is domiciled here. Residency under Tennessee Code Annotated 36-4-104 is treated as domicile. Domicile is defined as the place where a person has his principal home and place of enjoyment of his fortunes; which he does not expect to leave, except for a purpose; from which when absent, he seems to himself a wayfarer; to which when he returns, he ceases to travel.

A person may have two or more residences but only one domicile.Snodgrass v. Snodgrass A temporary residence in a state for the purpose of getting a divorce will not confer jurisdiction upon the courts of that state to render a decree for divorce that will be binding upon the courts of the state of actual residence of the party.
Domicile of choice is acquired by physical presence plus intent to remain.

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The plaintiff wife may acquire a separate domicile by withdrawing from the defendant husband.If the plaintiff leaves because of the defendant's fault and takes the children or if the plaintiff is awarded custody, the domicile of the children will follow that of the plaintiff.

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A domicile once acquired is not lost until a new one is established. If custody is awarded to one other than a parent, the domicile of a child will follow the person having custody. Based upon all of the above, even though both parties are physically absent from Tennessee, the only state with immediate jurisdiction to grant a divorce would be Tennessee. However, if by conduct and the passage of time the parties were to manifest a different "wayfarer intent" the result might differ.

Posted On: April 23, 2010

Parenting During Divorce: Who Will Speak For The Children?

Res Ipsa Loquitor. This latin phrase translates to: the thing speaks for itself. With this in mind, please note the following data"

Studies in the early 1980’s showed that children in repeat divorces earned lower grades and their peers rated them as less pleasant to be around. (Andrew J. Cherlin, Marriage, Divorce, Remarriage –Harvard University Press 1981)

Teenagers in single-parent families and in blended families are three times more likely to need psychological help within a given year. (Peter Hill “Recent Advances in Selected Aspects of Adolescent Development” Journal of Child Psychology and Psychiatry 1993)

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Compared to children from homes disrupted by death, children from divorced homes have more psychological problems. (Robert E. Emery, Marriage, Divorce and Children’s Adjustment” Sage Publications, 1988)

Children of divorce are at a greater risk to experience injury, asthma, headaches and speech defects than children whose parents have remained married. (Dawson, “Family Structure and Children’s Health and Well Being” National Health Interview Survey on Child Health, Journal of Marriage and the Family)

A study of children six years after a parental marriage breakup revealed that even after all that time, these children tended to be “lonely, unhappy, anxious and insecure. (Wallerstein “The Long-Term Effects of Divorce on Children” Journal of the American Academy of Child and Adolescent Psychiatry 1991)

People who come from broken homes are almost twice as likely to attempt suicide than those who do not come from broken homes. (Velez-Cohen, “Suicidal Behavior and Ideation in a Community Sample of Children” Journal of the American Academy of Child and Adolescent Psychiatry 1988)

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Taking the above as the gospel truth, what can be done to ameliorate these problems? The answer is, I don't know. What I do know is that you can be a voice of support and reason for your kids during this impossibly difficult time. It takes courage, maturity and stability to follow the following rules. However, in my opinion, after over 30 years of handling these kinds of cases, the following concepts are a minimum plan to save your childrens' future:

1. Make sure your children understand that they are not the reason for the divorce. Keep the explanation simple, your mother and I can no longer live together happily. You need to know that this has nothing to do with you. Your mom and I both love you very much and nothing will change that.

2. Take care when discussing litigation. Your children do not need to know the sum and substance of all legal documents, depositions, and proceedings. If you and your spouse are unable to decide the issue of custody, you may wish to offer a simply explanation like a judge is going to decide the time you will spend with your mommy and daddy because we both love you very much and can't agree.

3. Allow the children to love both parents. Create an environment where the children can be free to love both parents. If you cringe or change the subject when your child brings up Daddy's name, you may be sending a message to your child that you do not approve of his or her relationship with your ex.

4. Do not send messages through your children. If you are unable to communicate by any means with your ex whether in-person, by phone, or e-mail, you may wish to consider co-parenting counseling or request a parent coordinator.

5. Do not say disparaging things about the other parent in front of the children. Judges will expect you to be supportive of the childrens' relationship with their other parent

6. Be supportive of your childrens' activities. If at all possible, take your children to their activities when it is your time. On the other hand, be respectful of the other parent's time with the children. It's difficult to look supportive of the other parent's relationship if you always schedule well-visits during the other parent's time.

7. Use good judgment before introducing your children to someone you are dating. Introducing your children to someone that you have just met or are just beginning to know can be confusing and even detrimental to your children.

8. Take the high road when possible. This may sound contrary to the advice you might expect from a divorce attorney. However, when it comes to things like schedule changes, sometimes it is better to give a little even if the favor isn't always returned. In the event the matter goes to court, it is always better to be perceived as the parent who is flexible and cooperative.

Posted On: April 22, 2010

A Gazillion Dollars: The Value Of A Life ?

Close your eyes and imagine an empty seat at the Thanksgiving table; your youngest child's graduation from college; walking all alone down the aisle at your wedding. Think how empty your bed would be each and every night from this day forward without your spouse, best friend and lover. Can you conceive the horror of telling your children that Mom or Dad is dead? How would you cope with mounting bills and the loss of an income stream?

That is the emotional side of a relatively emotionless process. In Tennessee, as in most states, a claim for the wrongful death of a spouse or child belongs to the survivor of the decedent. Husband, wife, mother, etc. can seek a recovery for the death of their loved one.

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The tricky part is identifying and proving what lawyers call the "pecuniary value" of a human life. This phrase can be defined as: “The ‘pecuniary value’ of a decedent's life represents the value of the decedent's probable future financial accumulations at the time of the decedent's death.” This typically involves the use of an expert in making this calculation because the accumulation is a net figure. That is, in its most elementary form: average income + years of work life remaining + any increase or decrease in value of the total earnings due to inflation etc. - taxes, the cost of living = the pecuniary (dollar) value of the departed's life.

This all boils down to an expert opinion in the area of forensic economics. Under our rules of evidence an expert is a person who based upon his or her knowledge, training, skill, experience and education is likely to be able to help the jury better understand a fact that requires such help.Experts in Court This process is only a part of the analysis.

Pain and suffering of the lost loved one from the time of injury to death is crucial. The lost to the remaining family (loss of consortium) of the nurture, support, guidance and affection is a significant factor as well. Nonetheless, one cannot ignore that the crucible of a trial heats emotions and hearts as the trial progresses. In other words, the cost of reliving the loss and its consequences can often outweigh any financial recovery. Before traveling down this road, please consider that which you have to gain in light of what you have already lost.

Posted On: April 14, 2010

When Last We Blogged....

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I had said that the blogging hiatus had ended. Little did I know the enormous time commitment that being a coach of a competition level college mock trial team would demand. By this I do not mean only my time, but far more importantly, the time that these young men and women would devote to this important work. The work is important not just for trophies and accolades. Rather, the true significance is the preparation for a life in trial law that is the product of this program. The students spend hours each week (I would estimate in excess of 20 hours) learning the Rules of Evidence; how to conduct direct and cross examinations; the customs of propriety in the courtroom; and the other "rules of the road" which exist in this small area of specialization.


The team has traveled from Los Angeles to Washington, D.C. to compete against other college teams from the likes of Columbia, UCLA, Arizona, The Air Force Academy, Missouri, and Miami. What began in August is now culminating in the AMTA National Championship competition which is being held in Memphis this year and is being hosted by Rhodes College. Over 600 colleges and universities and in excess of 10,000 participants has been narrowed to 48 teams that will do battle as either the prosecution or defense side of a conspiracy to murder trial. After 4 rounds of preliminary trials, on Sunday evening the last 2 teams left standing will seek the title of THE NATIONAL CHAMPIONS for the coming year.


The 20 plus men and women that I have had the honor to coach at one time or another this year in the Rhodes College Mock Trial Program have exceeded my highest expectations. Through grit and tenacity, Rhodes has clawed its way to a berth in this ultimate challenge. whether or not we become this year's champs in the eyes of others is of no consequence. For me, each and every one of these incredibly talented "mockers" already wear the badge of success. They have proven through time and competition that they possess the right stuff. I am humbled by not only their potential but their passion. Bravo to them one and all.

National Championship Tournament
Memphis, Tennessee

FRIDAY (April 16th)

12:00 Registration, BCLC Ballroom, Rhodes College
1:00 All-Group Meeting, BCLC Ballroom
2:00 Captains’ Meeting, BCLC Ballroom
3:00 Judges’ Meeting, Shelby County Court Houses
4:00 ROUND ONE, Shelby County Court Houses

7:00 Judges’ and Coaches’ Reception, Burch, Porter & Johnson Law Firm

SATURDAY (April 17th)

8:30 Captains’ and Judges’ Meetings, Shelby County Court Houses
9:30 ROUND TWO, Shelby County Court Houses
1:30 Captains’ and Judges’ Meetings, Shelby County Court Houses
2:30 ROUND THREE, Shelby County Court Houses
6:00 Student Reception w/ food, University of Memphis Law School

8:00 Rhodes Alum Reception, Marty and Chesney McAfee Residence

SUNDAY (April 18th)

8:30 Captains’ and Judges’ Meetings, Shelby County Court Houses
9:30 ROUND FOUR, Shelby County Court Houses
1:00 Awards Luncheon, Silky Sullivan’s (183 Beale Street)
4:00 NATIONAL FINAL ROUND, University of Memphis Law School