marital privilege in Tennessee

2015See id. (quoting Robertson v. Robertson, 76 S.W.3d 337 , 340–41 (Tenn.2002)).

2015See id. (quoting Robertson v. Robertson, 76 S.W.3d 337 , 340–41 (Tenn.2002)).

2015See id. (quoting Robertson v. Robertson, 76 S.W.3d 337 , 340–41 (Tenn.2002)).

2011Husband acknowledges his parents’ support and asserts that “there is no way that [he] can come close to approximate the marital standard of living on his income.” While enabling the spouse with less income “to maintain the pre- divorce lifestyle is a laudable goal,” the reality is that “[t]wo persons living separately incur more expenses than two persons living together.” Gonsewski, 2011 WL 4116654, at *10 (citing Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998)).

2003In reaching this determination the Court cited, at page 749, the following language from its previous holding in Cohen v. Cohen, 937 S.W.2d 823 , (Tenn. 1996): [t]o the extent earned during the marriage, the benefits represent compensation for marital effort and are substitutes for current earnings which would have increased the marital standard of living or would have been converted into other assets divisible at dissolution .... [R]etirement benefits have been described as part of the consideration earned by an employee, [] and as a form of deferred compensation provided by the employer for

2002In so holding, we noted that [t]o the extent earned during the marriage, the benefits represent compensation for marital effort and are substitutes for current earnings which would have increased the marital standard of living or would have been converted into other assets divisible at dissolution. . .[R]etirement benefits have been described as part of the consideration earned by an employee, [] and as a form of deferred compensation provided by the employer for work already performed. 1 The correct product of this calculation is $64,388.07, but this minor discre pancy is immaterial in light

1996Id.; State v. Lyon, 648 S.W.2d 957, 960 (Tenn.Crim.App.1982); Adams v. State, 563 S.W.2d 804, 809 (Texm.Crim.App.1978)(both holding that the need to protect children outweighs the policy of protecting the marriage relationship and abrogating the marital privilege).

1988See Lee v. State, 542 S.W.2d 379, 381 (Tenn.Crim.App.1976); State v. Lyon, 648 S.W.2d 957, 960 (Tenn.Crim.App.1982).

1997Clearly, Rule 501 also encompasses the exceptions to the marital privilege implicit in this court’s opinion in Adams v. State, 563 S.W.2d 804 (Tenn.Crim.App.1978).

1997Clearly, Rule 501 also encompasses the exceptions to the marital privilege implicit in this court's opinion in Adams v. State, 563 S.W.2d 804 (Tenn. Crim.

1997In Garland, 617 S.W.2d at 182-183 , this court observed that the application of the marital privilege was inappropriate where the marriage between the parties was “extremely tumultuous.” Similarly, in this case, the trial court denied the appellant’s motion to suppress on the basis of the following findings of fact: Sheila (Bush) Hammock and the defendant were married on August 13, 1988.

1997In Garland, 617 S.W.2d at 182-183 , this court observed that the application of the marital privilege was inappropriate where the marriage between the parties was "extremely tumultuous." Similarly, in this case, the trial court denied the appellant's motion to suppress on the basis of the following findings of fact: Sheila (Bush) Hammock and the defendant were married on August 13, 1988.

2013Gonsewski, 350 S.W.3d 99 , 2011 WL 4116654, at *8 .

2011Husband acknowledges his parents’ support and asserts that “there is no way that [he] can come close to approximate the marital standard of living on his income.” While enabling the spouse with less income “to maintain the pre- divorce lifestyle is a laudable goal,” the reality is that “[t]wo persons living separately incur more expenses than two persons living together.” Gonsewski, 2011 WL 4116654, at *10 (citing Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998)).

1998We note that in Hurley, 876 S.W.2d 57 , our supreme court modified the marital privilege in criminal cases so that the testifying spouse alone had the right to invoke the privilege.

1997In State v. Hurley, 876 S.W.2d 57, 64 (Tenn.1993), ce rt. denied, - U.S. -, 513 U.S. 933 , 115 S.Ct. 328 , 130 L.Ed.2d 287 (1994), our supreme court modified the marital privilege in criminal cases so that the testifying spouse alone had the right to invoke the privilege.

2012The Michigan Court of Appeals similarly held in People v. Spencer, *417 130 Mich.App. 527 , 343 N.W.2d 607, 610 (1983), that a prosecutor may not comment on the defendant’s exercise of the marital privilege.

2012The Michigan Court of Appeals similarly held in People v. Spencer, *417 130 Mich.App. 527 , 343 N.W.2d 607, 610 (1983), that a prosecutor may not comment on the defendant’s exercise of the marital privilege.

2012See State v. Reid, 91 S.W.3d 247, 283-84 (Tenn.2002) (holding that the failure to object to an argument may serve as a waiver of the issue). 23 .

2012While these cited cases deal with rules and statutes from numerous jurisdictions, including variations of the marital privilege that are different than Tennessee’s marital communications privilege, see, e.g., Holyfield, 365 So.2d at 110-11 (witness spouse may decide whether or not to testify for or against the defendant spouse); Spencer, 343 N.W.2d at 610 (spouses may not testify against each other unless the defendant spouse gives consent), the principle is the same: commenting on the claim of privilege undermines the privilege itself. 22 .

2011See Bratton v. Bratton, 136 S.W.3d 595, 604 (Tenn. 2004); Robertson v. Robertson, 76 S.W.3d 337, 340 (Tenn. 2002).

2006App. 1992), where the court held that “the client has the burden of showing that the communications were made in the confidence of the attorney-client relationship.” Likewise, in Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 214 (Tenn. Ct. App. 2002), the court of appeals determined that “[t]he proponent of the common interest privilege has the burden of establishing the necessary elements of the privilege.” In the present appeal, in asserting that the marital privilege should be applied, the defendant established only that he and the witness were married at the time he made the statement to h

2003State v. Price, 46 S.W.3d 785, 800 (Tenn. Crim.

2000As a result, spouses may have to accept employment that, while not being ideal, provides for a reasonable approximation of the marital standard of living.”); Moriarty v. Stone, 668 N.E.2d 1338, 1344 (Mass. App. Ct. 1996) (holding that an award of alimony is improper absent a finding of 4 The New Jersey statute is found at N.J.

2000Crews v. Crews, 164 N.J. 11, 34 , 751 A.2d 524, 536 (N.J. 2000) (citations omitted).4 See also In re Marriage of Ward, 641 N.E.2d 879, 884 (Ill.

2000Stat. Ann. § 2A: 34-23 (West 1987). -6- financial need on the part of the recipient spouse and that “[t]he standard of need is measured by the ‘station’ of the parties -- by what is required to maintain a standard of living comparable to the one enjoyed during the marriage.”); Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D. 1994) (“A spouse’s need for rehabilitation is not limited to the ‘prevention of destitution,’ but can also be based on their standard of living before the divorce.”).

2000Crews v. Crews, 164 N.J. 11, 34 , 751 A.2d 524, 536 (N.J. 2000) (citations omitted).4 See also In re Marriage of Ward, 641 N.E.2d 879, 884 (Ill.

2000Crews v. Crews, 164 N.J. 11, 34 , 751 A.2d 524, 536 (N.J. 2000) (citations omitted).4 See also In re Marriage of Ward, 641 N.E.2d 879, 884 (Ill.

1999Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995).

1996Subjecting the benefits to division is just, because in most cases the retirement benefits consti *829 tute the most valuable asset the couple has acquired and they both have relied upon their pension payments for security in their older years.” Moran v. Moran, 612 A.2d 26, 33 (R.I.1992) (quoting 3 Rutkin, Family Law and Practice, § 37.07[1] at 37-81 (1985)).

1988See Lee v. State, 542 S.W.2d 379, 381 (Tenn.Crim.App.1976); State v. Lyon, 648 S.W.2d 957, 960 (Tenn.Crim.App.1982).

1978See Hazlett v. *809 Bryant, 192 Tenn. 251 , 241 S.W.2d 121 (Tenn.1951); Burton v. State, supra at 818, 819.

1978See Hazlett v. *809 Bryant, 192 Tenn. 251 , 241 S.W.2d 121 (Tenn.1951); Burton v. State, supra at 818, 819.