What documents should I have in place before I die? There are four primary end-of-life documents the average person should have in place. The first and most recognized is a Last Will and Testament. Upon your death, this document will dictate who you want to settle your affairs after you die. That individual, known as the Personal Representative, will then follow the directions you've provided in your will for how your property and belongings should be distributed. Your will can also include a testamentary trust provision, which would dictate how any inheritance given to minor children upon your death should be managed on their behalf. Finally, a will can also contain guardianship language for minor children. While guardianship language in a will is not binding on the court, such language is usually followed if done correctly. The next end-of-life document everyone should have in place is a Durable Power of Attorney. Powers of attorney allow the person listed as POA to make many different types of decisions on an individual's behalf, such as financial and real estate decisions. Typically, a general power of attorney no longer has effect upon an individual's incapacity, whether physical or mental. However, a durable power of attorney extends beyond that incapacity and remains in place until that individual's death. There are two primary types of durable POAs. The more traditional durable power of attorney is a "Springing Durable Power of Attorney." This means that this type of POA does not take affect until the individual has become incapacitated. The other type of durable POA is a "Durable Power of Attorney Effective Immediately." This means that the POA takes effect at the moment it was signed, and remains in effect through the incapacity and until the individual's death. There are advantages and disadvantages to both, so discuss your particular situation with your attorney. The third document everyone should have prepared is an Advance Care Plan. This is also known as a "Living Will." Sometimes referred to as "pull-the-plug language," an Advance Care Plan will determine what decisions your healthcare providers will make about your medical care in the end stages of your life. There are a variety of scenarios this document contemplates, such as whether or not you want to receive life support or the assistance of a ventilator if you are unable to breath on your own. Every individual's decisions are unique and their choices often surprise their loved ones. One of the most loving things an individual can do for their loved ones is to not force them to make these decisions on their own. It's a relatively simple document, but one that carries significant weight. The final document we recommend everyone have in place is the Appointment of a Healthcare Agent. While the Advance Care Plan above does incorporate the appointment of a healthcare agent, this document stands alone and allows another individual that you've named to make healthcare decisions on your behalf, in the event you're unable to do so on your own. While none of these documents are particularly fun to think about, it's crucial that you get them in place before you need them. All too often, loved ones who have every intention of taking care of these needs pass away before ever doing so. In many cases, what they leave behind becomes a point of contention between family members who disagree about what should be done, rather than focusing on fond memories. In short, the time to take care of your end-of-life planning is now! For more information about how to create a valid will, check out our additional Education Center post here.
Domestic Assault, Orders of Protection What is an Order of Protection? An Order of Protection is an order signed by a judge or magistrate, which is intended to protect victims of domestic abuse, sexual assault, or stalking. While you may be tempted to reach out to the person who filed an Order of Protection against you, it is essential that you have no contact with him or her. If an Order of Protection has been granted by a judge or magistrate against you on a temporary basis (ex parte), violating that Order of Protection will result in your arrest and a new criminal charge. In short, you will go to jail, no questions asked. So don’t do it! Who can Request an Order of Protection? An Order of Protection can be requested by anyone who is a “domestic abuse victim.” T.C.A. §36-3-601 defines domestic abuse victim as adults or minors who: Are current or former spouses; Live together or who have lived together (including roommates); Are dating or who have dated or who have or had a sexual relationship; Are related by blood or adoption; Are related or were formerly related by marriage; or Adults or minor children of a person in a relationship that is described above. What is the Process to Obtain an Order of Protection? An alleged victim fills out a Petition requesting the judge or magistrate to issue an Order of Protection. The judge or magistrate reviews the Petition and will likely grant an ex parte Order of Protection. The ex parte Order of Protection is a temporary Order of Protection that prohibits the other person from contacting the petitioner for any reason whatsoever. A hearing before a judge on the ex parte Order of Protection will be set within 15 days of the issuance of Order for a final determination. If the request is not granted ex parte, a hearing will still be scheduled in front of a judge to make a final determination. At the hearing, the court will either extend the Order of Protection for up to one year or it will be dismissed. At the hearing, the petitioner must prove by a preponderance of the evidence, or more likely than not, that the facts written in the Petition occurred. The court will hear from the Petitioner, Respondent, and any witness brought by the parties. The respondent then has the opportunity to put on proof to defend against the allegations being made by the petitioner. An Order of Protection can have serious ramifications, including: Ordering you to leave your home; Affect your custody or visitation rights with your children; Prevent you from owning or possessing firearms; Impact your ability to rent an apartment or home. If you have an Order of Protection pending against you in Nashville or Middle Tennessee, it's important that you hire an attorney immediately to defend your rights.
What is Diversion? Diversion is a broader term which may refer to either Pre-trial diversion or Judicial diversion. In either case, the purpose of diversion is to allow a defendant to admit some level of responsibility for a criminal act while avoiding a permanent conviction on their record. Pre-trial Diversion Under T.C.A. §40-15-105, pre-trial diversion is a method by which someone charged with a crime may avoid criminal prosecution. Pre-trial diversion requires the defendant to enter into a memorandum of understanding (MOU) with the State, in which the prosecutor agrees to suspend prosecuting the case for a set period of time, not to exceed two years. During this time, the defendant must follow certain conditions, including avoiding new charges and completing any agreed upon classes or treatment programs. If the defendant fails to complete the terms of the MOU, the diversion ceases and the State may proceed with prosecuting the case. Also, the MOU must include a written statement from the defendant describing his or her version of the facts of the alleged offenses. Once the conditions have been met and the set period of time has elapsed, the charges can be dismissed and expunged once the statutorily required fee has been paid to the court clerk. Pre-trial diversion is totally discretionary, and whether or not it may be offered to an individual depends entirely on the practice of that particular jurisdiction. Additionally, only certain offenses are eligible for pre-trial diversion and an individual would not qualify if they had any prior A or B misdemeanor convictions, or any felony convictions. Judicial Diversion Under T.C.A. §40-35-313, judicial diversion allows someone charged with a crime to be placed on probation for a set period of time, with certain conditions, without the judge entering a judgment of guilty. Unlike pre-trial diversion, judicial diversion is either granted by the judge after a defendant is found guilty, or by agreement if the defendant enters a conditional guilty plea. If the defendant violates the terms and conditions of probation, the judge may enter a judgment of guilty and proceed with sentencing the defendant, including a sentence of jail time. If the probationary period is successfully completed, the defendant can have the charges dismissed and permanently expunged from their record, once the fee set by statute has been paid to the court clerk. Not all offenses qualify for judicial diversion, and only someone who has never been convicted of a felony or class A misdemeanor for which a period of incarceration was served is eligible. For more information, see our Education Center post on Judicial Diversion here. Can I Get Diversion for my Current Charges? There are many factors that affect someone’s eligibility for either form of diversion, and this question can only be answered on a case by case basis. Before someone can be placed on Judicial Diversion, their attorney must submit a diversion application to the Tennessee Bureau of Investigation, after which the T.B.I. will provide a certificate that either confirms or denies eligibility for Judicial Diversion. The fee for this request is $100. The laws governing diversion are complex, and are often changing. Don’t assume you are eligible without first consulting an attorney. For those who are eligible, diversion is an incredible privilege that, if treated as such, affords someone charged with a crime a genuine opportunity to learn from their mistakes without suffering the life altering consequences of a criminal conviction.
Can I Go to Jail for Theft or Shoplifting? Yes, you can go to jail for theft, even if it is a small amount. Stolen goods or services valued at less than $1,000, otherwise known as shoplifting, can result in a class A misdemeanor conviction with a sentence of up to one year in jail and a possible fine of $2,500. The same applies to stolen personal property. As the value of the stolen property goes up, so does the punishment. Please see the chart below for the possible penalties* for theft: $1,000 or less: A Misdemeanor; Up to 1 year in jail (11/29) and a $2,500 fine $1,000-$2,500: E Felony; Between 1 and 6 years in jail and a $3,000 fine $2,500-$10,000: D Felony; Between 2 and 12 years in jail and a $5,000 fine $10,000-$60,000: C Felony; Between 3 and 15 years in jail and a $10,000 fine $60,000-$250,000: B Felony; Between 8 and 30 years in jail and a $25,000 fine Over $250,000: A Felony; Between 15 and 60 years in jail and a $50,000 fine *Maximum range of punishment varies depending on your prior criminal history. How can you avoid a conviction? The prosecution must prove that you intended to deprive someone else of their property. This means that you cannot be convicted unless you purposefully meant to steal something. If you took an item by mistake or honestly believed that you had a right to the property, an experienced attorney may be able to get your charges dismissed. What plea options are available? Even if you believe you are guilty, there are conditional guilty pleas that might be available in order to avoid a permanent conviction. Under either pre-trial or judicial diversion, you may plead guilty but still have your record expunged after successfully completing a probationary period. Some jurisdictions also offer classes for first-time offenders accused of shoplifting, in order to avoid a conviction. It’s important to hire a criminal defense attorney who understands theft laws in Tennessee, and the possible ways to avoid a permanent conviction.
Is CBD Oil Legal in Tennessee? Yes, CBD oil (cannabidiol) containing less than 0.3 percent THC is legal in Tennessee and can be purchased at a number of retailers or online. The CBD oil that is legal in Tennessee is made from industrial hemp and does not cause the same psychoactive effects that marijuana does. However, many standard drug tests cannot detect the difference between legal CBD oil and marijuana, so you could potentially fail a drug test even though you have only used legal CBD oil. Accordingly, it is not a good idea for anyone on probation or who is required to take random drug screens for employment purposes to use CBD oil. Moreover, if you are pulled over and an officer suspects you may have recently smoked marijuana, you could be arrested for DUI. At that point, the officer would likely get a search warrant to have your blood drawn and tested. Sometimes these blood tests do not differentiate between inactive metabolites of THC and active THC. With the rise of prosecution of crimes involving THC and marijuana, it's important that your criminal defense lawyer understands these complexities and is prepared to defend against confusion and misunderstanding on the part of law enforcement and prosecutors.
Is Medical Marijuana Legal in Tennessee? No, currently medical marijuana is not legal in Tennessee. However, medical marijuana has been gaining support in Tennessee, as studies show it can benefit those suffering from conditions including cancer, Alzheimer’s disease and Parkinson’s disease. However, recent attempts by legislators to legalize marijuana for medical purposes have failed. It is likely, though, that we will see medical marijuana become legal in Tennessee in the near future. In the meantime, however, only legally prescribed drugs should be consumed in order to avoid criminal prosecution.
How Much Marijuana Can I Possess Without Getting Arrested? In Tennessee you can be arrested for possessing any amount of marijuana. If you are found in possession of an amount less than half an ounce (14.174 grams), you can be charged with an A misdemeanor, the penalty for which can include up to a year in a jail and a fine up to $2,500. Whether or not you are arrested or given a misdemeanor citation depends completely on the practices of the jurisdiction you are in. Officers in some jurisdictions will release you with a citation where you are required to appear on a certain date to be booked into the local jail and court system. Other jurisdictions will arrest you and require you to post a bond. Whether or not you have any prior charges for simple possession or any prior failures to appear may also impact your eligibility for a citation. It is important that your criminal defense attorney understands the practices and policies of the police department and District Attorney’s office where your case is pending.
Who can be charged with Domestic Assault? In Tennessee, you can be charged with domestic assault for committing assault against anyone deemed a domestic abuse victim. Who is a domestic assault victim? Tennessee law has a broad definition which goes far beyond just a romantic relationship. A domestic abuse victim can include any of the following: Current or former spouses Roommates People who are dating or had a previous sexual relationship Anyone related by blood or adoption Current or former in-laws An adult or minor child of a person that is in a relationship with anyone included in the above categories Is it their word against mine? Simply put, yes. If there are no other witnesses, it is the alleged victim’s word against yours. When an officer is called to a scene for an allegation of domestic assault, most police departments have a policy which states that the preferred response is to make an arrest. The officer’s goal is to determine who the “primary aggressor” is, then place that person under arrest. If the only witnesses are the alleged victim and the accused, the result is a case of “he said, she said.” Penalties for domestic assault can be severe. Initially, any domestic assault arrests require the accused to be held for a minimum of 12 hours in jail before they are able to post bond. This alone is a traumatic experience for most people accused of domestic assault. A conviction for misdemeanor domestic assault can result in possible jail time of up to 11 months and 29 days, result in the loss of your ability to ever possess a firearm, and the conviction can never be expunged. Given what’s at stake when you are charged with these types of crimes, it’s important to hire an attorney immediately to begin preparing your defense.
An uncontested divorce in Tennessee is a divorce where both spouses agree, or come to an agreement, on all of the major terms of the divorce. Generally, an uncontested divorce will be on the grounds of irreconcilable differences, or in some cases, for being separated for more than two years. An uncontested divorce is the most amicable type of divorce and can save spouses both a lot of time, money, and heartache. However, this does not mean that uncontested divorces always go as planned. Even if you meet the requirements to file for an uncontested divorce, it is still recommended that you hire a lawyer. A qualified divorce attorney can ensure that the legal requirements for a divorce are met while still keeping your best interests in mind. Divorce attorneys have experience negotiating divorce settlements, known as Marital Dissolution Agreements, and even in an uncontested divorce, there can be disagreements that require a compromise before the divorce can be finalized. An experienced divorce attorney can take the stress of navigating the complex legal system out of your hands and ensure all of the correct documents are filed and served properly. Having a lawyer to review the final paperwork before submitting it to the court ensures that you fully understand the consequences of the divorce agreement you are entering with your spouse.
How is child support calculated? Child support calculations in Tennessee are complicated, but essentially the court will determine the parties' incomes and will establish a total "household" income. A parenting schedule is then established, resulting in the total number of days each parent will exercise parenting time. The total household income is then divided between those parenting days, to provide a consistent standard of living for the child regardless of which home they are in. The following factors determine child support: The gross income of each parent The amount of time each parent spends with the child(ren) The number of children being supported. The Income of Each Parent: In the simplest case, your gross income will be found on your W-2 form. However, in some cases determining income can be more difficult. As a general rule, income includes all money from whatever source received and includes things such as gambling winnings, disability payments, workers’ compensation payments, and money received from personal injury lawsuits or claims. The Amount of Time Each Parent Spends with The Child: Typically, the more time a parent spends with the child, the less that parent is required to pay in child support. The logic is that parents will be spending money to support their children’s needs and wellbeing when they are with the children. Child support is intended to maintain that financial support when the children are with their other parent. The Number of Children Being Supported: The number of children being supported is factored into the total amount of child support needed, and parents will get credit on the child support worksheet for any child support they may be paying for children with different parents. Other Credit Given to Each Parent: In addition to receiving credit for any other children each parent is already supporting, both parents will get credit on the child support worksheet for work-related childcare expenses they are paying and for health insurance premiums paid for the children's portion of the health insurance. The basic steps the court will take in determining child support are: A determination of the parties' income is made; A total "household" income of both parties is established; A parenting schedule is established, resulting in the total number of days each parent will exercise; and The total household income is divided between those parenting days, to provide a consistent standard of living for the child regardless of which home they are in Child support is complicated. We suggest retaining an attorney to assist in ensuring that child suppurt has been correctly calculated, and that you are getting all of the credit you are entitled to.