Changing your Name after a Divorce in Memphis, Tennessee
February 27, 2008 | Leave a Comment
Adults living in Tennessee are permitted to use any name they wish without going to court, unless they defraud someone by doing so. This is true regardless of the adult’s marital status or gender. If a person uses a name other than the one the person was given at birth or took upon marriage, however, it will not be the person’s formal legal name.
A Married Woman’s Name
A woman who marries may accept the last name of her husband or may keep her prior name, whichever she prefers. Either name she selects and uses automatically will become her legal name. A married woman is entitled to obtain a credit card and other business accounts in the legal name she selects and uses. No business or agency in Tennessee should refuse to provide services to a woman because she chooses to use her former name instead of her husband’s last name.
A woman who has chosen to use her husband’s last name but who later receives a divorce, annulment, or dissolution may request that the court officially restore her former name. The court usually will grant such a request. A woman who receives a divorce or remarries may not change the legal name of the children, however, without filing a separate petition in court to do so.
Following the procedure provided by Tennessee law to petition a court for a change of name creates a legal record of a name change. This may benefit people who choose a name other than the name they were given at birth, if they must prove their name. For example, a legal record of a name change would help those who wish to obtain passports in their adopted names.
After your divorce we can assist you in filing a petition for change of name with the appropriate court in Shelby County. We utilize a clear and concise questionaire that helps us collect all the information needed to complete the petition. The petition generally will include such information as your place of birth, current name and address, proposed new name, reason for wanting to change names, and the names and addresses of your parents or nearest living relatives. After filing and court fees are paid, a hearing will be scheduled by the court for the proposed name change. You and any other persons who support or oppose the name change may appear at the hearing. The court normally will approve a petition for a name change after a divorce. Unless there is evidence that the change is intended to defraud someone, to interfere with the rights of others, or to avoid criminal prosecution.
When the court approves your petition, it issues a judicial decree changing your name. To complete the change, you should send a certified copy of the decree to the agency where your birth certificate is recorded. If you were born in Tennessee, the agency is the Tennessee Department of Health, Bureau of Vital Statistics.
Source of post: TBA Link - Law Bytes
Seven Tips for a Better Divorce in Tennessee
February 26, 2008 | Leave a Comment
There are some actions anyone can take to improve their chances of having a more favorable outcome and avoid some of the problems that occur during a divorce.
- Be prepared. If you know ahead of time that you will (or may) be going through a divorce, it really pays off for you to gather documents and information about important issues, such as your finances. You may uncover unknown assets or you may just have proof of the existence and values of assets, which would probably help save quite a bit of money.
- Plan for changes and be flexible. Realize that your family will become two separate units and that will stretch your resources. You may have to change your short- and long-range goals. In almost every case, someone virtually ’starts over’ and often both parties really struggle. Accept the need to compromise and be open to new ways of doing things.
- Be honest with your attorney. He or she can’t do nearly as good a job with faulty information. Virtually everything you tell an attorney is confidential, so don’t hold back.
- Prepare to use specialists. Attorneys can be very good helping you with the law, facts and procedure, but they often don’t know as much about specialty areas such as taxation as a CPA or divorce financial planner does. The process can move faster and better if you use (as needed) a:
- Counselor/therapist, if you are sad or mad.
- Financial planner, if you don’t have much experience in finances.
- Business valuation expert for small businesses.
- Child specialist to help find solutions for visitation, child support issues, living arrangements, etc.
- Look at the big picture. Don’t get lost in insignificant issues or in keeping score to see who wins the most points. If you start to slip into arguing about tiny issues, make yourself go back up to the broader issues and get your spouse off the small stuff. Focus on the goals, needs and interests that are important to you. It doesn’t matter what your spouse is gaining or claiming to gain or wants to argue about. Leave the small stuff alone and stay true to your essential goals. You will be truly successful if you can achieve your important goals and needs.
- Practice ‘putting yourself in your spouse’s shoes’. Empathy can really help you in a number of ways. Since 90-95% of divorces settle, negotiations are a major part of any divorce. You can better understand and respond to your spouse’s requests and offers if you understand what important to him or her and what factors will motivate them. Being able to figure out what your spouse is motivated by can help you create settlement options that will be acceptable and even welcome to your spouse.
- Reduce conflict. The more you fight, the more it costs. That should be obvious. You can choose to start or continue battles, or you can decide to work for solutions.
Following these tips will improve your chance of success, no matter how you define success. At the least, you should have a divorce with less fighting and more attention to the important issues.Source for Post: Kansas Family Law Blog.
How Can I Stop My Ex-Wife From Using the Credit Card I’m Paying For?
February 23, 2008 | 1 Comment
QUESTION:
I was recently divorced. Part of the divorce decree ordered me to pay credit cards that are in my ex wife’s name. I’ve requested that the bills be sent to me so I can see what is owed and to make sure I am not paying for stuff she is still charging. The credit card companies won’t tell me anything, because the cards are in her name, but they will take my money. I can’t close the accounts and she refuses to do so or to sign paperwork so the bills will come to my address. What can I do?
ANSWER:
Source: Nolo.comIt’s certainly understandable that you do not want to foot the bill for your old spouse’s new shoes, but unfortunately the credit card companies don’t see it that way — they just want their money.
Probably your best option would be to pay another visit to the judge who entered the final divorce decree. Go back to court and ask the judge to order your ex to deliver copies of the various statements to you immediately. This is the only definitive way for you to know what charges were actually incurred during the marriage, making you responsible for paying them. You may also want to ask the judge to clarify that you’re not responsible for any charges made after your marriage was over.
10 Tips for Dividing Your Property During Divorce
February 23, 2008 | Leave a Comment
by Roderic Duncan, Judge
Here are some ways to divide property fairly during a divorce.
For most couples, splitting up your possessions is a big part of the process of getting divorced. Either you and your spouse sit down and decide together who gets what — or a judge will have to divide what is called your “marital property” or your “community property.” If possible, of course, it’s best to do the dividing yourselves.
The most important advice I can give you on this subject is to be open and honest in setting out everything of value you have come to own during your marriage. That includes revealing that you still have a little bank account you stuck away secretly five years ago when the two of you were thinking about splitting up. Items such as these tend to surface sooner or later, and the penalties for hiding something of value can be devastating.
- Dividing Up Property Yourselves
If you and your spouse are going to try to divide your property yourselves, here are some steps to get you started. - List your belongings. Working together, make a list of all of the items that you own jointly and need to be divided. Of course, you can omit items both of you agree are personal things of insignificant value. And, for example, when dealing with furniture that is not of great value, you can just specify “furniture in master bedroom,” “dining room furniture,” and so on.
- Value the property. Try to agree on the value of anything worth more than a specific agreed amount — say $100 or $500. If there is a house, a business, or anything that is difficult to value, get an opinion about that from some agreed outside authority. For example, for your house, pick a realtor who is familiar with your neighborhood. Or, for antiques, you can hire a professional appraiser. You may need an actuary to value a pension and an accountant to help you value an investment. If there is a mortgage or other debt associated with any item, be sure to subtract the amount of the debt from its value so that you list its net value.
- Decide the logical owner. Now go through your main list, item by item, and decide whether there is some good reason to have each piece of property go to one or the other of you. Start with the items with the biggest value and see how far you can get. If having an equal split is important to you, keep track of the total value each person accumulates. Later, trade off on the smaller items, with each of you taking one in turn.
- Get the judge’s approval. If you and your spouse can agree on dividing the property you own together, the court will normally approve whatever agreement you have reached. The only exception is when a party who doesn’t have a lawyer seems to have agreed to take a lot less than half of the property. In that case, the judge may want to ask a few questions to be sure that one of you isn’t taking advantage of the other. But don’t count on this intervention in every case.
5 Additional Techniques
If it becomes difficult to proceed as suggested above, it may be helpful to try a few additional methods.
- Coin flip I. Flip a coin and have the winner divide up all the items. Do not break up sets of things, such as dishes and tables with matching chairs. The loser of the coin flip then chooses which list he or she will take; the remaining list belongs to the listmaker.
- Coin flip II. Flip a coin and have the winner place a monetary value on each item on a list of items to be divided. The other person then chooses the items he or she wants, up to one-half of the total value of all the items on the list. The person who won the flip is awarded what remains.
This method can also be used for one item at a time: The first person places a value on an item, such as the car, and the other person either takes it at that value, or it goes to the first person at that value.
- Hold a sale. Hold a garage sale, then divide the proceeds equally.
- Entertain bids. On items of substantial value — a house, a business, an expensive car — have each spouse submit a sealed bid; when the bids are opened, the highest bidder gets the item. For example, if you have an expensive antique and one of you bids $8,000 and the other $9,000 on it, the higher bidder gets the item at its listed value. An equalizing payment is made at the end of the process.
- Auction it off. Hold a real auction with a neutral person acting as auctioneer and the two spouses being the only bidders allowed. Any increased bids should be a minimum percentage, such as 5%, over the last bid. Otherwise, the parties might be able to force the proceedings to go on into the night as they raised one another a dollar at a time.
Love is in the Air: Spring is Wedding Season in Memphis, TN
February 22, 2008 | Leave a Comment
Before you take the leap, make sure you’re ready… Questions to Ask Before Marriage
Relationship experts report that too many couples fail to ask each other critical questions before marrying. Here are a few key ones that couples should consider asking:
- Have we discussed whether or not to have children, and if the answer is yes, who is going to be the primary care giver?
- Do we have a clear idea of each other’s financial obligations and goals, and
do our ideas about spending and saving mesh? - Have we discussed our expectations for how the household will be maintained,
and are we in agreement on who will manage the chores? - Have we fully disclosed our health histories, both physical and mental?
- Is my partner affectionate to the degree that I expect?
- Can we comfortably and openly discuss our sexual needs, preferences and
fears? - Will there be a television in the bedroom?
- Do we truly listen to each other and fairly consider one another’s ideas and
complaints? - Have we reached a clear understanding of each other’s spiritual beliefs and
needs, and have we discussed when and how our children will be exposed to
religious/moral education? - Do we like and respect each other’s friends?
- Do we value and respect each other’s parents, and is either of us concerned
about whether the parents will interfere with the relationship? - What does my family do that annoys you?
- Are there some things that you and I are NOT prepared to give up in the
marriage? - If one of us were to be offered a career opportunity in a location far from
the other’s family, are we prepared to move? - Does each of us feel fully confident in the other’s commitment to the
marriage and believe that the bond can survive whatever challenges we may
face?
Source:’ ‘Questions Couples Should Ask (Or Wish They Had) Before Marrying‘ published in The New York Times as referenced by this post at the South Carolina Family Law Blog.
Source for Post: Kansas Family Law Blog.
Tax Time in Tennessee
February 22, 2008 | 1 Comment
Child Support and Taxes
What you need to know about your taxes if you pay or receive child support.
For federal income tax purposes, child support is tax-free to the recipient, meaning neither the ex-spouse nor the child owes taxes on it. However, child support payments are not tax-deductible by the parent who makes the payments — unlike spousal support payments. (Spousal support is tax-deductible for the person who makes the payments and taxable to the recipient.)
Be careful how support is characterized in your marital settlement agreement, as it may have significant tax consequences.
What Qualifies as Child Support?
In order to qualify as child support, the payments received by an ex-spouse must be designated as child support in the divorce or separation agreement. If the agreement lumps the payments together as “family support” or “alimony,” or doesn’t otherwise designate a specific portion of each payment as child support, none of the payment will be considered child support for tax purposes.
This can have adverse tax consequences for the recipient of child support payments, because family support or alimony is taxable to the recipient. So instead of receiving nontaxable child support, the ex-spouse will be receiving alimony, which is taxable to the payee, regardless of what the payee actually uses the money for.
Who Gets to Claim a Child as a Dependent?
Generally, in order for someone to claim a child as a dependent, he or she must provide at least 50% of the child’s support during the tax year. For couples who are still married and living together, claiming kids as dependents is usually a slam-dunk.
Things get complicated, however, when parents divorce or separate. Now, only one of you can claim the dependent exemption. (The IRS will come down hard if both of you try to claim it; they cross-reference dependents’ Social Security numbers to make sure taxpayers aren’t doing this.)
Special Rule for Parents Living Apart
If the parents lived apart at all times during the last six months of the calendar year, or if they have a written divorce decree, maintenance agreement, or separation agreement, there is a special rule that applies.
In this case, if the child received more than half of his or her total support for the year from one or both parents and was in the custody of one or both parents during the year, the IRS rules assume that the custodial parent (defined as the parent who has custody of the child for the greater part of the year) should get the exemption for the dependent. However, the parties may change this presumption and allocate the exemption to the noncustodial parent if either of the following are true:
- The divorce decree or separation agreement contains a provision in which the custodial parent waives the right to claim the dependent exemption. (The rules are slightly different if the agreement was entered into prior to 1985; the noncustodial parent must also provide at least $600 of support to receive the exemption.)
- The custodial parent signs a declaration (using IRS Form 8332) relinquishing his or her right to claim the dependent exemption, and the noncustodial parent attaches this declaration to his or her tax return. Using this form, the custodial parent can relinquish the exemption for one year, a number of years, or forever, depending on what the parties agree to.
- If you relinquish the exemption, you are also relinquishing eligibility for the child tax credit.
The IRS is very picky about Form 8332, and can (and often does) disallow the dependent exemption for the noncustodial parent if this form isn’t signed and attached to the tax return, even if the divorce decree or separation agreement allocates the exemption to the noncustodial parent. That means it’s very important for the noncustodial parent to attach a copy of this declaration to his or her return in every tax year in which he or she claims the exemption.
If the custodial parent refuses to sign Form 8332, the noncustodial parent can attach part of the divorce decree or separation agreement (the cover page, the page that discusses the exemption and the signature page) to his or her tax return to prove that he or she is entitled to the exemption. However, the IRS will accept this only if the decree or agreement doesn’t require that certain conditions be met before the noncustodial parent can claim the exemption. If there are conditions, the noncustodial parent must use Form 8332 or not get the exemption.
Rule for Unmarried Parents or Those Still Living Together
If the parents are not married, did not live apart during the last six months of the calendar year, or do not have a written document, the test for determining which parent can claim the child as a dependent is that the parent who provides more than 50% of a child’s support during the tax year can claim the child as a dependent.
Rules for Parents Who Contribute Equal Amounts of Support
If neither parent provides more than half of the child’s support for the year, things get even more complicated. For more information on how to handle this situation, see IRS Publication 504, Divorced or Separated Individuals, which you can download for free from www.irs.gov.
Copyright © 2006 Nolo
Do You Really Have an Irreconcilable Differences Memphis Divorce?
February 20, 2008 | Leave a Comment
In the state of Tennessee to dissolve a marriage without the other parties consent requires that you have grounds to divorce. Certain states have true no-fault divorces that don’t require one party to prove grounds. Grounds are a reason recognized by the state of Tennessee that they will allow you to get a divorce for. They range from adultery, abandonment, to a catchall inappropriate marital conduct that can include a variety of behaviors that it is “inappropriate” for one married person to do to another. Tennessee code section 36-4-101 sets out the fifteen grounds. Among those ground is one called “irreconcilable differences”.
As a lawyer who does divorces in Memphis this is what about half your clients will want when the call you. Some lawyers here advertise they can do one for $225 plus court costs in the Memphis Commercial Appeal! The problem is this really isn’t a ground for divorce under Tennessee law.
You see in Tennessee to get a divorce for irreconcilable difference you must have a signed and notarized Marital Dissolution Agreement that sets forth how all the property will be divided and who gets what. If you have children then you also need a completed parenting plan where you agree on all details, a child support worksheet based on that plan, and to take a parenting class.
All of the above will need to be signed notarized and approved by your ex-spouse. You cannot force your ex-spouse to sign the above. There is no legal penalty for failing to do so. There is also no way to default on these grounds. So if your spouse has taken off for the last two years with her lesbian lover to Nepal then you can’t get an irreconcilable differences divorce. Now if all the above is done then you can get divorced in 60 days from filing without children or 90 days with.
Now if you come to me and pay me to do the paperwork for an irreconcilable difference divorce and your spouse isn’t prepared for having the papers presented to them numerous things can and frequently do happen.
1. Your spouse may sue you for divorce.
2. Your spouse may remove all the money from any joint checking accounts, tell her relatives you are threatening him/her, and get an order of protection against you.
3. Take the kids and move to Florida.
All of which because an irreconcilable differences divorce has no mutual mandatory injunction are very hard to combat. They also cause your lawyer to instead of doing a little cutting and pasting, counseling you for a half hour, answering a few questions, filing, and one short flexible court appearance to spending hours upon hours in multiple court appearances, frantic calls from you, and filing numerous documents to get you back in your house or the kids back from Florida.
Your lawyer is also going to want a lot more money than $225. Frequently lawyers advertise irreconcilable differences divorces for low amounts and then refuse to perform any work unless you pay them say an additional $2000 retainers which will only cover the most moderately contested divorce.
Most lawyers can crank out an irreconcilable difference divorce in about two hours of work. A lightly contested divorce can consume twenty hours of time in mediation and initial court appearances. That’s at one hundred and fifty or so dollars an hour. Going to trial can take hundreds of hours.
So what happens if you get a lawyer to begin work on an irreconcilable differences basis when you shouldn’t have? Well, you’re not going to have a lawyer for very long. They probably state in their contract they will perform no additional work and might not even have filed yet. In addition, they will be really ticked at you for underplaying the situation and will probably not be prepared to deal with whatever you spouse throws at you.
There are several morals to this. One, be prepared to be generous. Its going to cost you several thousand dollars to tens of thousands to seriously contest any issues using a Memphis lawyer. Second, be honest with your lawyer if you want your spouse out of the house or its going to take some serious effort to come to an agreement with your spouse. Third, remember you can’t get an irreconcilable difference divorce in Tennessee without AGREEING WITH YOUR SPOUSE ON ALL MATERIAL ISSUES.
This article was originally written by fellow Memphis divorce lawyer David Sandy. David’s original post can be found here.
A Win-Win Strategy for Memphis Parents
February 19, 2008 | Leave a Comment
Many times, at the start of a divorce, parents see custody of the children as an either-or situation: one parent has custody and the other is relegated to a visitation/possession schedule. ~ Divorce and Family Law in Tarrant County, TX
In Tennessee, co-parenting and decision making allows parents to avoid trying to win a “custody battle” and concentrate on planning for their children. Instead of devoting energy to the win-lose mindset and proving that the other parent is “unfit,” co-parenting and decision making, co-parenting and decision making keeps that energy on parenting. Don’t think about strategic moves and get rid of any ulterior purposes, such as getting property or paying less child support. You have the right to parent your children and your children have the right to support and care from both their parents. You and your spouse must think about the financial and relationship hardships that will arise if you refuse to work together to care for your children.
A Win-Win Strategy for co-parenting and decision making may require more maturity than some parents can muster, but, for those able to shift gears, think rationally and be patient, the following approach can be rewarding for them and their children.
1. Think about, discuss and decide what your ultimate goals are for the kids. What outcomes would you like to see? Many people would want some of the following (or similar) goals:
The kids having a great relationship with both parents
The kids having a great relationship with their extended families
Financial security for the children
Having a safe, secure home for the children
Having good schools for the kids
Providing for a college education for the children
Providing sports opportunities for the children
The opportunity for the kids to learn music, art or other interests
Each parent can decide what he or she thinks would be important goals for their children. Broader, underlying goals are more helpful and meaningful. If both parents think of goals in broad terms, they often can agree on them.
2. Look at the big picture. What are the resources to work with:
Financial abilities of the parents
Parental/family member time available
What homes and schools are available and affordable
What the parents’ neighborhoods are like
The existing relationships between parents and children and the roles each parent plays with the children
What community resources are available
What special needs, if any, a child has
What interests the child has
3. Brainstorm options. Think up as many different solutions as you can. Sometimes it is helpful to get help from a parenting expert. Spend some time and try to be non-traditional or unconventional. Don’t limit yourself to ‘standard’ solutions. Open up your thoughts to come up with some crazy ideas because they might just turn into good ideas.
4. Evaluate your options. See if they can help achieve your identified goals. Criticizing and testing your options can lead to the discovery of other ideas and can help you narrow down the choices until you are left with an idea or ideas that work.
Implementation: This process can helpful if just you do it, but it is really better if you can do it with the other parent. If you work on this alone, you can create a better plan to present in court or in mediation. If both parents work together through this process, there’s an excellent chance they will reach an agreement that will be satisfactory to both parents and to the children.
Please give this a try and let me know how it works for you!
A Checklist for Caring for You Elderly Parents in Memphis, TN
February 15, 2008 | Leave a Comment
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Caring For Elderly Parents |
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 By Ramona Creel |
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ASSESSING THEIR NEEDS |
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- Does your parent need help with grooming, bathing, or dressing?
- Does your parent need help with housekeeping, shopping, or yard work?
- Does your friend need help planning or preparing meals?
- Is your parent unable to drive or get around on public transportation alone?
- Does your parent need help managing finances and paying bills?
- Does your parent need help making legal and other important decisions?
- Does your parent have trouble functioning at home? Would modifications help?
- Does your parent have trouble with hearing, vision, or memory?
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GET PERMISSION |
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- financial power of attorney to make financial decisions and pay bills
- living will to make life-support decisions
- medical power of attorney to make health care decisions
- durable power of attorney to make legal decisions
- access to safe deposit box
- may choose to be added to deeds and mortgages
- may need to be added to automobile insurance
- know the person’s wishes (medical treatments, funeral, finances, etc.)
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INFORMATION TO HAVE ON HAND |
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- insurance (Medicare / Medicaid number, supplement, other policies)
- doctors (names, phone numbers, and other contact information)
- medical history (medications, allergies, conditions, procedures)
- identification (social security, military ID, driver’s license numbers)
- address list (friends, neighbors, family)
- service providers (attorney, financial advisor, clergy, accountant)
- financial (account numbers, checkbook, investments, tax records)
- legal (wills, powers of attorney, health care directive)
- deeds (house, other property, car title, boat title)
- insurance (life, medical, auto, homeowner’s)
- household (mortgage, apartment lease, property tax records)
- vital records (birth certificate, marriage license, divorce decree)
- final wishes (organ donation, burial, property distribution)
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MAKE SURE THAT YOU |
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- respect your parent’s independence, even while taking care of them
- allow your parent to make as many decisions as appropriate
- have reasonable expectations of what your parent can do independently
- talk regularly with your parent about their concerns, desires, and frustrations
- make informed decisions that are in the best interest of your parent’s needs
- show compassion while you are trying to be efficient and responsible
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TAKING CARE OF YOURSELF |
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- recognize when you are getting worn out and need a break
- make use of support groups, family, and other caregivers in your situation
- take regular breaks to do something enjoyable for yourself
Once you have Assessed Their Needs and collected Information to Have on Hand, we are Memphis Family Lawyers that help you Get Permission from your eldery parents to facilitate their ongoing care. It is important that you have this discussion with your parents before any emergency situtations arise. We encourage clients to have the conversation early because it avoids any resentment or involuntary decisions. By involving your parents in the planning of their long term care, you are strengthening your relationship by giving them the peace of mind. When you Make Sure That You have planned well for their long term needs now, you end up Taking Care of Yourself.
Ramona Creel is a Professional Organizer and the founder of OnlineOrganizing.com — offering “a world of organizing solutions!” Visit www.onlineorganizing.com for organizing products, free tips, a speakers bureau, get a referral for a Professional Organizer near you, or get some help starting and running your own organizing business. You may contact Ramona at comments@onlineorganizing.com.
When Does an Engagement Ring Have to Be Returned?
February 15, 2008 | Leave a Comment
Long after the heartbreak has healed, one nagging question often remains: Who gets to keep the ring?
The engagement is over. In addition to the sorrow, the heartbroken must deal with the return of the deposits left with the caterer, the florist, and the dressmaker. But when all that dust has cleared, one rankling question often remains: Who gets to keep the ring?
For the answer — or for vengeance — many turn to the legal system. State courts around the nation that have considered the ring issue have reached differing conclusions.
When Is a Gift a Gift?
Courts generally treat the engagement ring as a gift, from the donor (the person who gave the ring) to the donee (the person who received it). To be considered a legal gift, three things must be present: the donor’s intent to give the ring as a gift, the donor’s delivery of it to the donee, and the donee’s acceptance of the item. If the person to whom the ring was given can show all three elements, a court will consider the ring to be a gift to him or her.
Conditional Gifts
But the majority of courts also consider such a gift to be a conditional one. That means that, until some future event occurs, the gift isn’t final; if that event does not occur, then the donor has the right to get the gift back. In real life, many parents use this concept by, for example, giving a teenage daughter the keys to the family car, on the condition that she maintain a certain grade point average for a specified period of time. If she doesn’t make the grade, the keys must be returned.
Women who want to keep their engagement rings often argue that the condition needed to make the engagement ring a final gift is simply the acceptance of the proposal of marriage, not the completion of the marriage ceremony. That way, if the engagement is broken, the ring remains her property.
But this argument often loses. The majority of courts find that the gift of an engagement ring contains an implied condition of marriage; acceptance of the proposal is not the underlying “deal.” Absent some other understanding — say, that the ring is merely a memento of a great trip to Hawaii — most courts look at engagement rings as conditional gifts given in contemplation of marriage: “Once it is established the ring is an engagement ring, it is a conditional gift.” Heiman v. Parrish, 942 P.2d 631, 633 (Kan. 1997). However, the Supreme Court of Montana has come down on the opposite side of this fence, rejecting the conditional gift theory and declaring that an engagement ring is an unconditional, completed gift and that’s that. Ex-fiances in that western state are unlikely to get help from the courts if they want to get an engagement ring back. Albinger v. Harris, 2002 WL 1226858 (Mont. 2002).
Fault for the Break-Up
When divining who gets to keep the engagement ring, courts do not agree on whether it should matter who did the breaking up or why. To some judges, it isn’t fair that the donor should always get the ring back, especially if the donee stood ready to go ahead with the marriage and the donor broke it off. These same judges think it would be unfair for the donee to keep the ring if the engagement was broken because of the donee’s unfaithfulness or other wrongdoing. In such cases, they order that the ring should be returned to its purchaser. This “fault-based” rule is the majority approach.
Other judges, though, think that the whole matter of who broke up with whom isn’t any of their business. If the wedding’s off, they say, the donor should get the ring back, regardless of who, why, where, or when the engagement ended. After all, they reason, no-fault divorce makes it possible for marriages to end without bitter court fights over whose fault it was; engagements should be treated the same way.
Just a few years ago, the Supreme Court of Pennsylvania stuck steadfastly to the no-fault reasoning and decreed that the donor should always get the ring back if the engagement is broken off, regardless of who broke it off or why. Lindh v. Surman, 742 A.2d 643 (Pa. 1999). Iowa, Kansas, New Jersey, New Mexico, New York, and Wisconsin have the same rule.
Justices on the Supreme Court of Kansas, which also adopted the no-fault rule in 1997, detailed the difficulties that they imagined would be theirs with a fault-based approach:
[S]hould courts be asked to determine which of the following grounds for breaking an engagement is fault or justified? (1) The parties have nothing in common; (2) one party cannot stand prospective in-laws; (3) a minor child of one of the parties is hostile to and will not accept the other party; (4) an adult child of one of the parties will not accept the other party; (5) the parties’ pets do not get along; (6) a party was too hasty in proposing or accepting the proposal; (7) the engagement was a rebound situation which is now regretted; (8) one party has untidy habits that irritate the other; or (9) the parties have religious differences. Heiman v. Parrish, 942 P.2d 631, 637 (Kan. 1997).
But consider the case of George J. Pavlicic, a 75-year-old man, who had a romance with Sara Jane Mills, aged 26. They became engaged in 1949. He bought her a house, two cars, an engagement ring, and a diamond ring in anticipation of their marriage. George then lent her a significant amount of money, including $5,000 to buy a saloon. Sara Jane then disappeared. The next time she was heard from, she had indeed used the $5,000 to buy a saloon, but it was in another city, and she had married another man.
George went to court. He wanted everything that he’d given Sara Jane back. He won. But Sara Jane argued on appeal that a new law, the Heart-Balm Act, made his lawsuit illegal, because it outlawed all legal actions for “breaches of contract to marry.” But the Pennsylvania Supreme Court sided with George. The act, it held, was meant to end a kind of legal blackmail, where people threatened lawsuits for breach of the promise to marry that would tarnish the other person’s reputation. But the act, the court concluded, didn’t alter the rule of conditional gifts. Pavlicic v. Vogtsberger, 136 A.2d 127, 130 (Penn. 1957).
Some courts applying this fault-based rule consider the exchange of the ring to be more like a contract than a conditional gift: The ring is just a symbol of the agreement to marry. If that agreement is not performed, then those involved should be restored to their former positions — as they would be if the contract was for, say, the delivery of a bushel of wheat — and the ring should be returned to the person who first had it. But if the donor backs out, the donee should keep the ring, because a person who breaches contracts should not be rewarded for doing so. Spinnell v. Quigley, 785 P.2d 1149 (1990).
This article is courtesy of fellow family law and divorce lawyer Grant Griffith. Grant has a phenomenal family law and divorce blog where the original post can be found here.
