Anna and Mark, husband and wife, live together in Memphis, Tennessee. While they are married, they decide to purchase a condominium in Gatlinburg, TN so that they can have a place to start when they go to visit Great Smokey Mountains National Park, as they like to do several times each year. They purchase the condo as tenants by the entirety and pay for the condo with marital funds. Unfortunately, in 2004, Anna and Mark’s marriage went sour and they decided to divorce, although they maintained an amicable relationship. Since both parties wanted to continue to have access to the condo in Gatlinburg, they had their attorneys insert the following language into the divorce settlement: “Both parties hereto agree that as long as both parties are living, neither party may sell, encumber or otherwise partition our condominium in Gatlinburg, TN without the consent of the other party.” In 2014, Mark falls on hard financial times. He really wants the money that he could get by selling his half of the Gatlinburg condo. However, Anna refuses to partition or buy out Mark since she wants continued access, but cannot afford to buy Mark out. Mark brings an action to partition the property, claiming that the clause in the divorce agreement is unenforceable because it is an invalid restraint on alienation.
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