Email: jon@jonhpowell.com

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Feb 09
Should I Draft My Own Will?

I'm often asked whether someone needs an attorney to draft their will, or whether one of those do-it-yourself online legal document websites are sufficient.  After all, they advertise that they have "state specific" legal documents, right? And if it is "state specific", shouldn't that be good enough?


A document that is "state specific" (i.e., it is drafted with knowledge of, and in compliance with, Mississippi law) does not mean it is "fact specific".  When you are drafting your will, you want a document that does what YOU want it to do!  The do-it-yourself documents can't always do what you want it to do because the programs don't always know what questions to ask you.  More importantly is that you won't know what questions it should be asking you. 


That's why you should seek the advice of an attorney when drafting your will.  If you don't believe me, consider the wise advice given in a poem written by Lord Neaves in the 16th century:


Ye lawyers who live upon litigants' fees,

And who need a good many to live at your ease,

Grave or gay, wise or witty, whate'er your degree,

Plain stuff or Queen's Counsel, take counsel of me:

When a festive occasion your spirit unbends,

You should never forget the profession's best friends;

So we'll send round the wine, and a light bumper fill

To the jolly testator who makes his own will.

....

You had better pay toll when you take to the road,

Than attempt by a by-way to reach your abode;

You had better employ a conveyancer's hand

Than encounter the risk that your will shouldn't stand.

From the broad beaten track when the traveler strays,

He may land in a bog or be lost in a maze;

And the law, when defied, will avenge itself still

on the man and the woman who make their own will.

 

A very creative way of saying "Don't draft your own Will."


Jan 07
What Happens if You Don't Pay Your Child Support?

An unfortunate reality today is that almost 50% of all homes are broken, meaning the mother and father do not live together with their children.  It really does not matter whether the mother and father were ever married; children are expensive and need supporting.  

Child support, when ordered, is of the highest obligation.  It cannot be discharged in bankruptcy; it cannot be forgiven absent extremely rare circumstances; and it vests as a right every single month when it becomes due.

So what happens if you are ordered to pay child support, but you don't pay it?  

1. You could go to jail until you've paid all or a big portion of it. That's right.  If you repeatedly fail to pay your child support after the Court has previously warned you, you could go to jail.  

2. You will be brought into Court to explain why you are not paying your child support.  

3. Attorneys are expensive . . . if you hire one to defend you. Also, you may be ordered to pay for the other person's attorney.

4. You may be ordered to pay additional child support to make up for the past due child support.  If you do not like paying your present child support, it is highly unlikely that you will like paying an extra hundred dollars per month that applies toward the past due child support.

5. If the other party has had to take you to court to order you to pay the child support you are already paying, it won't cost much more money for the other party to ask for an INCREASE in child support.  After all, they are already in court and she has already had to pay an attorney.

6. If you get too far behind on child support and refuse to pay it, the District Attorney's office can prosecute you for a felony.

Get the picture?

The best policy is to pay your child support.       ​

Dec 07
In Loco Parentis

In what situation in Mississippi may a third-party non-parent be subject to either (a) being ordered to pay child support for a child that is not theirs or (b) being awarded custody of the child over the natural parents?

The answer is "in loco parentis".  "In loco parentis" is a latin term which means "in the place of a parent". 

The person who is acting "in loco parentis" is a person who has assumed the status and obligations of a parent without a formal adoption.  The Court has held that any person who takes a child of another into their home and treats that child as a member of their family, providing parental supervision, support and education for the child, as if the child were their own is said to stand "in loco parentis".

An example is the case of Tedford v. Dempsey (437 So.2d 410).  There the stepfather had over a period of time supported the children born to his wife from a previous marriage.  The mother and children came to rely to their detriment on this support.  The Court there held that it was in the best interests of the children to require the stepfather to pay child support.  The Court stated in Logan v. Logan (730 So.2d 1124) that if a stepparent can be required to pay child support for a stepchild based on their support of the stepchild for a period of time, then if it is in the best interests of the children the stepparent should also be allowed to have custody of the stepchild.  The Court stated that "with the burden should also go the benefit".

​However, the natural parent is presumed to be the proper parent for custody of the child in these cases.  This presumption, however, can be overcome.  This is another topic for another day.


Nov 30
The "Normal" Grandparent Visitation Schedule

​I was resently asked the question:  What is the "normal" grandparent visitation rights in Mississippi?

Allow me to get straight to the point:  There is NO "normal" or standard grandparent visitation in Mississippi.

Every grandparent visitation case is different, and each are dependent on the facts of the specific case.  For instance, if the grandparents have established a deep and well-established relationship with their grandkids, and all of a sudden they are not permitted to visit with their children because of the acts of one or both of the parents, they may get one weekend a month visitation with the grandkids, or a day every couple of weeks, IF the grandkids live within close proximity to the grandparents.  However, if the parents live in another state, or on opposite ends of the state, and substantial distance exists between the grandparents and grandkids, then the grandparents may not get regular visitation with the grandkids but may get SOME visitation over spring break, and/or fall break, and/or Christmas break, and/or a couple weeks during the summer.

There are so many different facts that come into play in a grandparent visitation case that there is no way to provide a definite answer to the question "what is normal" - because there is NO NORMAL!​  

Oct 26
The "Why Me?" Question

While this blog post is not the normal post that you normally find on a lawyer's website, it certainly is something we all face from time to time.

Often when good things or bad things happen, the natural response is "Why me?".  Certainly, for some people (especially me) it is difficult to accept praise.  During my youth and while in college, I was conditioned to receive criticism from my coaches, which helped shape me into who I am today.  So, I ask myself "Why me?" for this award.

I am humbled to have been recently recognized by The Clarion-Ledger newspaper as the 2015 Best Divorce Attorney in Mississippi. Certainly there are many other well-deserving attorneys across the State of Mississippi that could have received this honor.  However, for some reason the honor fell upon me.  Why me?  The only good answer that I have come up with is because I have tried to be faithful in serving and honoring God.  God's Word states that those who are faithful to Him will be blessed.  Though I would like to think that my hard work and seeking the best for my clients is the primary reason for the high praise, I must admit that the honor must go to Him who guides me and blesses me beyond measure or worth. 

When you are confronted with a "Why me?" moment, what is your response?  Do you seek answers, or do you blame others?  For me, seeking answers is who I am.  Good or bad, this is me.

Aug 31
Innocent Until Proven Guilty - Except When Children are Involved

​Our American criminal justice system operates under the basic premise that the accused is innocent until proven guilty.  That is true in the criminal justice setting.  However, when there are allegations of abuse or neglect involving children, the Youth Court and Chancery Court operate differently.

The Youth Court and Chancery Court often hear cases that involve allegations of abuse and neglect of children.  In these courts, the first response is to protect the children first, and address the facts surrounding the allegations second.  While this is necessary to protect the children, it also seems to unfairly implicate the alleged perpetrator by taking action against the accused adverse to their "rights" with regards to the children.  This action by the Court may seem to be an unnecessary overreaction. Whatever the implication is toward the accused abuser, this action by the Court is necessary.  It is far better that the Court overreact than to regard the allegations as false, allow the children to remain in the home, only later to learn that the child endured more abuse or neglect while the parties await a court date that can be weeks or months away.  

Whose rights should come first?  The rights of the accused to continue to have their children based on some Constitutional argument as to due process, or the rights of a child to live in a safe, healthy environment?   The accuser will ultimately get his day in court - just not at the expense of allowing the child to remain subject to the abuse or neglect until the trial. 

Aug 31
Unhappy Client Equals Unhappy Lawyer

​It is true that an unhappy client makes for an unhappy lawyer.

This blog post will be short, but to the point.

If there is ANYTHING that you are unhappy about with your lawyer, set an appointment and discuss the matter early on.  Problems that the lawyer don't know about only fester into potentially bigger problems and needlessly add stress to the client.  A good lawyer wants to know if the client is unhappy, and to seek a remedy to the problem.

Therefore, if you are unhappy with something your lawyer has or hasn't done, contact him/her immediately and discuss it.  

Lawyers want and need happy clients.  


Jul 06
Being Honest with Your Attorney

It should go without saying, but nevertheless it has to be said, that honesty with your attorney at all times is KEY to developing a good working relationship with your attorney, and KEY to getting a good outcome at the end of any representation. Likewise, if your attorney expects honesty from you, you have EVERY RIGHT to expect honesty from your attorney.

Recently I had to decline the representation of a person who scheduled an appointment with me under a fictitious name.  The reason I turned the client away is simple:  If the client won't be honest even in the small things like giving me their true name when scheduling an appointment, they are very unlikely to tell me the truth on the more important, "painful" questions that I will have to ask them.  

Most good attorneys don't want your money at the expense of their own representation and an unhappy client.  The present and future attorney-client relationship thrives on mutual respect and honesty.  This is the only way that good results will follow.

Therefore, when dealing with an attorney, BE HONEST.  Also, you have the right - the ABSOLUTE RIGHT - to tell your attorney that you expect and demand the TRUTH FROM THEM.

 

May 12
The "I'm Just Not Happy Anymore" Divorce

              Since I began practicing law I've heard numerous times a client tell me "I'm just not happy anymore and I want out of the marriage."  I've also heard numerous times a client talk to me from the other end of the spectrum: "My husband/wife wants out because he/she says they are just not happy anymore but I don't want a divorce."

              Exactly what does "I'm just not happy anymore" mean?  It might mean:
(A) I'm really just not happy anymore; or
(B) I've found someone else who is more exciting and makes me happy because they meet my needs ("the grass is greener" syndrome).

              In my experience, more times than not the "I'm just not happy anymore" spouse ("Unhappy") is not happy because they are not free to openly have the relationship with the person they are newly involved with because they are married.  Maybe this sounds cynical - but it's true. 

              Mississippi law does not recognize as a grounds for divorce the "I'm just not happy anymore and want out" ground.  Other states do (another topic for a later blog post). 

              In Mississippi, if Unhappy cannot prove one of the marital fault grounds for divorce, Unhappy  must either get his spouse to consent to a divorce on irreconcilable differences or be prepared to stay married (and unhappy).

              On the other hand, if "Happy" (the other spouse) wants to keep the marriage intact, Happy can refuse to grant a divorce to Unhappy and make Unhappy try to prove that Happy is guilty of a  fault ground.

              I don't ever remember a single wedding that I attended where the vows ended with "...so long as you both shall be happy".  Have you?

To learn more visit our website at www.jonhpowell.com.

May 07
Can a 13 year old be Prosecuted as an Adult in Mississippi?

The short answer is YES.

            For purposes of this discussion, remember that in Mississippi you are not an adult until you reach the age of 21 or you are otherwise emancipated by order of the Court.

            Youth Court has exclusive jurisdiction over children who are "delinquent".  A "delinquent child" is defined as "any act, which if committed by an adult, is designated as a crime under state or federal law, or municipal or county ordinance other than offenses punishable by life imprisonment or death."

            However, the Youth Court statute also provides exceptions to its jurisdiction.  Those exceptions are:

  1. Any act attempted or committed by a child which, if committed by an adult would be punishable under state or federal law by life imprisonment or death, in which jurisdiction will be in circuit court (Section 43-21-151(1)(a));
  2. Any act attempted or committed by a child with the use of a deadly weapon, which would be a felony if committed by an adult, in which jurisdiction will be in circuit court (Section 43-21-151(1)(b)); and
  3. If the child has reached his/her 13th birthday and is charged to be a delinquent child, then upon either the motion of the youth court prosecutor or of the youth court's own motion, jurisdiction is transferred to the more appropriate criminal court (Section 43-21-157).

 
           So what does this mean in plain English?  A child who has reached the age of 13 in the State of Mississippi can be tried as an adult for certain criminal acts. 

           Therefore, if you have a 13 year old, it might be worth bending their ear and letting them know that just because they are young does not mean they are assured of escaping trouble if they commit a crime.
  

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