Law Blog

Separate Maintenance

Thursday, January 10, 2019

Separate Maintenance is a claim that can be filed by one spouse when the other spouse has left the marriage leaving the other spouse without the benefit of the leaving spouse's normal contributions to the household, including financial contributions.  In a separate maintenance action, the spouse that did not leave is asking the Court to enter an order which requires the leaving spouse to either (1) return to the marriage, or (2) pay to the other spouse separate maintenance payments for their monthly support and maintenance.  Separate maintenance payments are NOT alimony payments.  The separate maintenance payments may be stopped by the spouse who left by returning to the marriage and resuming all of the "duties" of marriage, including the duty to support the other spouse.  

Often, one spouse wants to leave a marriage but cannot prove a fault grounds for divorce, and the other spouse will not agree to an irreconcilable differences divorce.  If the spouse wanting out of the marriage files a fault ground divorce, the spouse not wanting the divorce can file a counter-complaint for separate maintenance.  

If you have a spouse who has left you without support, consider the option of filing a separate maintenance action.

For more information, contact my office.

The "No-Fault" Divorce: Still a Waiting Game

Tuesday, January 8, 2019

I often hear the question: "If everything is agreed on and we sign the papers, why does it take so long for a no-fault divorce?"  The answer is simple but not liked:  the statute requires the waiting period.

 

In order to get a divorce on irreconcilable differences (the "no-fault" divorce"), the statute requires that there be a minimum waiting period of not less than 60 days from the date of the filing (not signing) of the Joint Complaint for Divorce.  Therefore, regardless of whether everything is agreed upon and you don't want to wait, the Court cannot and will not enter a divorce on the grounds of irreconcilable differences until 60 days have lapsed from the filing of the Joint Complaint.  That does not mean that on the 60th day the divorce will be finalized.  On the 61st day after the filing of the Joint Complaint, your lawyer is free to attempt to get the Court's signature on the divorce decree.

For some, this is another example of Hurry up and Wait.

Social Media and Divorce: A Dangerous Combination

Friday, January 4, 2019

My clients repeatedly hear me tell them that if what they have to say, text, post on Social Media, or email cannot be repeated or read on Sunday morning standing next to your pastor in front of a full church congregation, then you don't need to say it or write it.  And if there is any doubt - then go without!

Social media and texts have become a goldmine for evidence in divorces and child custody cases.  People just cannot seem to restrain themselves.  Further, it seems that those who are on Social Media (such as Facebook, Instagram, Snapchat) just cannot resist the impulse to post something that they shouldn't.  Guess who's watching those posts . . . that's right, the other side and their attorney.  And you can be guaranteed that these posts will be used in Court against you.

The best advice while going through a divorce or custody battle is to stop texting and posting to Social Media.  It is a minor and temporary inconvenience that will pay massive dividends in your case.  If you cannot resist the urge to post or text, then don't do it while you are angry or upset.

Trust me on this.

Starting the Year Off with a Plan

Tuesday, December 18, 2018

The fast-approaching new year brings about a new start.  Start with a plan.  An estate plan.

If you don't have a Will, don't delay any longer.  Leaving an estate without a plan is deciding that you are content with leaving a mess for your loved ones to clean up.  Do them (and yourself) a favor and schedule an appointment with me to get your estate plan in place.  An estate plan can be as simple as a simple Will.  The simplest of Wills is much better than having no estate plan at all.  Additionally, scroll down to my last blog post (The "Responsible Adult" Prepper Guide) for some tips on estate planning that you can do.

If you have a Will but it hasn't been updated in several years, or if there have been some life-changing evients that occurred since the Will was made, schedule an appointment with me to review the Will to see if it does what it needs to do still.

Remember:  failing to plan is itself a plan to fail.

The "Responsible Adult" Prepper Guide

Friday, December 7, 2018

The internet is full of "Prepper" websites for what many believe is the coming apocalypse or as they call it "SHTF" which is an acronym for (excrement) hitting the fan.  While we wait for the coming apocalypse, here is the "Responsible Adult" prepper guide for you to consider:

 

1. Make certain all of your bank accounts, retirement accounts, and any other money or investment accounts you maintain have a payable on death beneficiary designation.  This will allow that money and those accounts in most situations to pass outside of your estate and directly to the person you designate as the death beneficiary.

 

2. Never leave the death beneficiary of a life insurance policy to your "Estate" unless it is solely for the purpose of providing the Estate money to pay your Estate taxes with.

 

3. Get a power of attorney.  Also, whoever you designate as your power of attorney must be someone you trust completely to handle your business the way you want it handled.  If you have a child or spouse who is an alcoholic or drug addict or a financial train wreck, do NOT designate them as your attorney in fact.

 

4. Get a Will.  Meet with an attorney and fully discuss your assets and what your wishes are at the time of your death.  An experienced estate planning attorney can help you draft an estate plan that achieves what you want done.  Additionally, the cost of having an attorney draft an effective estate plan for most people is many times less than what you pay for a one month mortgage payment, and will save your heirs many times that amount if done correctly.

 

5. Leave a file folder labeled "In Case of Death or Disability" somewhere in your home where your spouse or children can easily locate it.  In this folder, you need to list where all of your accounts are located  and contact information for any retirement plan administrator or investment broker.  Also, leave either a copy of your Will (NOT the original) and your power of attorney in the folder or the location of where they are located.  Also, if you have a long-term care policy or prepaid burial policy, put a copy of that in the folder.  In other words, anything of importance that someone responsible would need to locate at the time of your disability or death should be in this folder.

6. Get out of debt and SAVE, SAVE, SAVE!  There is nothing sadder than trying to help someone explore options for a sick or incapacitated family member, only to find out that they have little or no options because of debt and no savings.  

7. Repair family relationships.  While this may seem odd advice on a lawyer's website, your family will be your go-to support system in most cases.  If there needs to be some fence-mending, get to it NOW.  Don't wait.  We are never promised another day.  If you can't do this out of selfish reasons, then do it for those you will leave behind.

8.  Make peace with whomever you believe is your Maker.  For me, the single most important preparation costs you nothing, is free for the taking, and is for everyone who is willing to receive that gift.  It is a personal relationship with Jesus Christ, God's only Son.  (See John 3:16).  

To Move Out or Not to Move Out In a Divorce - That is the Question!

Monday, November 19, 2018

In a divorce, should you move out of the home or stay put!  That is the question that deserves a lot of thought.

In the past, most attorneys advised their clients to NOT move out of the home under any circumstances.  However, that advice may not always be the best advice in every situation today.

If you have children, moving out could almost be looked at by the other side as conceding the issue of physical custody.  Additionally, how would your moving out affect the children?  If the move is for the betterment of yourself AND your children, then perhaps moving out is the best thing to do.  If you intend to argue that the other parent is verbally abusive, neglectful, or should not have custody of the children, then your moving out may signal to the Court that you are comfortable leaving the children in the care of your spouse - and contradict your claims that your spouse should not have custody.

If you move out, you will not be waiving any claim to property rights in the home or furniture.  Those claims will survive your move so long as you don't abandon your request that the marital estate be divided.

These are just some of the considerations to consider before moving out.  

Decide wisely.  Also, consider consulting with an experienced divorce attorney before making your decision. 

Alimony - Will the New Tax Laws Change Things?

Tuesday, November 13, 2018

Under the Trump tax cuts (i.e., the 2017 Tax Cuts and Jobs Act (TCJA)), periodic and rehabilitative alimony payments appear to have been significantly affected regarding the payor's ability to deduct same on their tax returns.  The best information available appears to indicate that any alimony payments that were otherwise deductible prior to the enactment of the TCJA will continue to be deductible IF the alimony payments are ordered prior to January 1, 2019.  In other words, those alimony payments that are court ordered and subject to being deducted prior to January 1, 2019, will continue to be deductible by the payor (and taxable as income to the payee).  This means that beginning January 1, 2019, the past benefit of being able to deduct from the payor's income periodic and rehabilitative alimony payments will be discontinued for any alimony obligations ordered by the Court on January 1, 2019 and after.

Alienation of Affection 

Friday, November 9, 2018

Alienation of Affection cases are civil lawsuits which a spouse can bring against the boyfriend or girlfrield of their spouse and seek money damages as a result of their intentional or negligent acts which causes the loss of your spouse's affections toward you. 

 

Recently, alienation of affection lawsuits have brought scrutiny as being outdated and unnecessary.  Is alienation of affection an out-dated, backwoods, old tyme cause of action that should be done away with?

 

Let’s say you spent $30,000 for a new truck.  Over the years you changed its oil, antifreeze, belts, purchased new tires for it, washed and waxed it a couple times per year, and safely locked it in a garage each night.  You baby it, taking care to not accelerate or brake too hard.  Over the years, you invested your time, energy and money into keeping it looking and running great.  You love your truck - it’s a part of you - perhaps even a part of your identity. . . Then someone steals your truck.

 

Or let’s say you spent $300 for a Labrador retriever puppy.  Over the years, you feed it, play with it, train it, and it comes to be an integral part of your family. . .Then someone entices your beloved pet and companion with some food, and the dog doesn’t come back home.

 

As absurd as these examples are, how much more would you hurt if someone did the same thing to you, taking your spouse (instead of your truck or your pet) whom you devoted your past and planned for the future with?

 

Alienation of affection lawsuits are as worthwhile a cause of action as personal injury actions - perhaps even more worthwhile.  In cases involving alienation of affection actions the injury and loss to your emotional and physical well-being and those of the rest of the family can be just as devastating. 

 

Preserving a cause of action which may deter someone from interfering with your marriage  (and which may have the effect of keeping families together) is not out-dated, backwoods, or old tyme at all.  Instead, I think its very timely indeed.

Prince and Aretha - No Will Creates Chaos

Wednesday, October 3, 2018

After both Prince and Aretha Franklin passed away, many (including me) were surprised that such wealthy celebrities as these two would not take the time to make a Will or create an Estate Plan for their millions of dollars.  With their many millions of dollars in assets and royalties pouring in, I would have expected that at some point their lawyers and agents would have advised them to "take care of business" before their passing so that "Purple Rain" wouldn't fall on those who may be left after their passing.  Their Estates have been left in chaos and - in the case of Prince's Estate - many have come forward claiming to be heirs and entitled to a portion of his estate.

Don't leave a mess for others to clean up after you are gone.  Do your family a favor and get your Estate Plan created so your survivors don't end up having to guess what you would have wanted - or worse yet, have your estate be divided according to the law.  For most people, a proper Will is inexpensive and uncomplicated.

Show your family and loved ones some R-E-S-P-E-C-T.  Get your Estate in order.

Some DIY Estate Planning You Can Do

Wednesday, October 3, 2018

 

Some of the most effective Estate Planning involves those things that you can do yourself.  Consider the following:

(1) Designate "payable on death" (POD) beneficiaries on all of your bank accounts;

(2) Make certain your retirement accounts have death beneficiaries designated on them;

(3) Look at the deed to your home and other real estate to see if it is owned with someone else as "joint tenants with full rights of survivorship"; and

(4) Title your automobiles jointly with someone else using the connector "or" instead of "and".

Not all of these are appropriate in every situation.  However, these are examples of things you can do to keep certain assets from having to go through an estate proceeding.  

 

Contact me to discuss these and other plannning tips. 

The Runaway Divorce Train

Tuesday, August 14, 2018

Divorces are life-changing events.  They are emotion-filled.  They are scary at times.  In the worst circumstances, they can become akin to a run-away train.

Divorces don't necessarily have to be adversarial in all cases.  Divorces can actually be an opportunity to make a necessary change in your life without skewering the other spouse and their reputation.  However, to do this generally requires two people who are willing to seek a resolution and to act reasonably toward each other.  In other words, the key goal must NOT be to harm the other person as much as possible.

Lawyers see what most divorcing couples cannot see at the beginning of the divorce: that is, if it is expensive to live together with two incomes, it is going to be difficult to live separately with just one income.  And then there's the problem with who gets the debt.  And if children are involved, who gets to pay child support.  And if alimony is an issue. . .

 

The best strategy for any couple who cannot continue in their marriage is to try to reach a resolution to as many issues as possible.  Otherwise, the divorce can (and many times does) turn ugly and the lawyers (me included) end up getting a substantial part of the marital pie that could otherwise be salvaged and used by the parties for their own future needs.  Too often I have to remind clients that the cost of pursuing something may not be worth it in the end when you consider things such as time (i.e., closure) and the cost in attorney's fees.

However, if the goal is to cause as much harm and create as much chaos in the life of the other party. . ."All aboard" for the Runaway Train!

 

Gathering Evidence for Court

Tuesday, June 5, 2018

You are the greatest source of evidence for any case you may ever have to present in Court.  In gathering and producing evidence, it is imperative that you adhere to the following rules:

 

  1. Do NOT mark on, write on, alter, etc. anything that you believe may be used as evidence!  Any such alterations in most cases will result in the evidence being unusable in Court (i.e. inadmissible).

  2. It is most cost-effective and efficient for you to produce as much evidence that you can obtain.  You have access to and can gather most of the evidence that is beneficial to your case.  Therefore, any social media posts, cell phone records, bank statements, letters, text messages and emails which you believe are pertinent to your case should be gathered and delivered to your lawyer as soon as possible.  Allow your lawyer to determine what is most relevant and beneficial to your case as early as possible.   

  3. Any evidence that you have MUST be provided to your lawyer far enough in advance of trial for the attorney to review and prepare for use at trial and, if required, to produce the evidence to the opposing side.

  4. In many cases, electronic copies are as valid as the original.  If you cannot locate the original but have copies, provide those to your attorney.

  5. Text messages that are used as evidence should be screen shot in their entirety with the date and time shown on the text strings.  Any text messages that are altered in any way cannot be used.  Additionally, partial text strings are objectionable and may not be admissible in Court.

Being a Parent. . .

Tuesday, June 5, 2018

Being a parent requires you to RESPECT and ENCOURAGE a relationship with the other parent, especially when the parents are divorced.   This is the absolute least a parent can do for their children.

Unfortunately there are times when this does not occur and in some situations one parent alienates the children from the other parent.  My view of this:  It is nothing less than a form of CHILD ABUSE.  This should not be tolerated.  

When this occurs, who is hurt?  Obviously, the alienated parent is hurt.  However, the most affected victim are the children themselves.  Children NEED and DESERVE a relationship with both parents.  Lies by one parent told to the children about the other parent are too many times believed.  

 

I see this too often in my work.  Unfortunately, many of our Judges begin rolling their eyes at their first hearing of alienation when custody is at issue.  To be successful in proving that one parent alienated the children from another parent, you often have to prove overwhelmingly both the acts of alienation committed by the one parent and the resulting effect on the children and their relationship with the alienated parent.

If you have negative feelings about the other parent, do your children a favor:  Do NOT voice those negative feelings to or in the presence of your children.  Your children will be healthier and happier if you heed this advice.

What Child Support is Not

Tuesday, May 22, 2018

In a previous post, we discussed what child support IS.  In this post we will list what child support IS NOT.

 

Child support is not:

(1) a condition that must be met in order for the non-custodial parent to see and visit with his/her children;

(2) under normal circumstances sufficient to cover the costs of all of the child’s needs;

(3) normally tax deductible;

(4) meant to cover medical expenses of the child which are not covered by health insurance;

(5) a right won by the non-custodial parent to control how the custodial parent spends the money;

(6) leverage by either parent for every conflict or disagreement between the parents;

(7) terminable at the pleasure or whim of the non-custodial parent;

(8) to be paid to the child;

(9) normally terminable absent a court order;

(10) assignable to a third party absent a court order;

(11) subject to garnishment by a creditor of the custodial parent;

(12) modifiable without a court order; and

(13) many other things that warring parents often try to make it be.

 

Following these two rules will keep you out of trouble 99% of the time:

(1) If you owe child support, pay it according to the order on time when its due. 

(2) If you receive child support, utilize it for the support of the child. 

The Don’ts of Paying Child Support

Tuesday, May 22, 2018

Don’t:

 

(1) Be late in paying.  The custodial parent has the right to expect your compliance with the court order, and has the right to rely on the expectation that the child support will be paid on or by a certain date so they can properly budget and spend the money for the benefit of the child.

(2) Pay the wrong amount.  See number 1 above.

(3) Pay it in cash.  This makes it too easy for the custodial parent to lie and say they never received the child support, and too hard for you to prove that you actually paid the child support. Cancelled checks and money order receipts are much better evidence of your payment of the child support than your word.

(4) Regret having to pay it.  You should want to support your child to make certain they are properly cared and provided for.  What kind of parent are you if you don’t want the best for your child?

(5) Pay it when you want to.  See number 1 above.

(6) Wait until all of your other bills are paid to see if you have enough to pay it.  You should pay it first before your other bills are paid.  That way you won’t be put in the unpleasant position of having to explain to the Judge why you didn’t pay it.  You can go to jail for not paying your child support.

(7) Try to dictate to the custodial parent how they spend the child support.  It is none of your business so long as the child is being properly provided for.  You gave up the right to have a say in how the custodial parent spends the money when you divorced or didn’t get married after having reproduced with them.

(8) Ignore the child support obligation if you lose your job.  Get a lawyer immediately and file a petition for modification based on the change in circumstances and your inability to pay.  Ignoring your child support obligation when you lose your job only makes your financial situation worse.

The Dos of Paying Child Support

Friday, May 11, 2018

 

Over the years, I have compiled the following list of items that you should do when paying child support.  I hope this list is beneficial:

(1) Pay it on time.  The custodial parent (and child) need to know that they can depend on the child support being received at the same time each month so they can properly budget and timely pay bills and expenses.

(2) Pay the correct amount.  Just as above, the custodial parent (and child) rely on the same amount of money each month to budget and timely pay bills and expenses.

(3) Pay it by check or money order.  You want some proof via canceled check or money order receipt that you paid it.

(4) Pay it willingly and happily.  This is for your child, which you had a part in creating.  What a wonderful example to the child of your love if you demonstrate that you are happy to support them. 

(5) Pay it because you love your child(ren).

(6) Pay it according to the latest court order.  The latest court order dealing with child support controls.

(7) Pay it consistently.  See numbers 1 and 2 above.

(8) Make it a priority.  Pay it first.  Its not paid only if you have money left over to pay it.  Its paid even if you don’t have the money to pay your other bills.

(9) Understand that you ordinarily have no say in how the custodial parent spends the child support.  Just because you pay child support does not give you the right to be a dictator as to how and when the money is spent on your child.  However, if you find out the child support is being used to support an addiction such as drugs, alcohol, or gambling, continue to pay your child support but immediately seek legal advice for your options.

(10) Communicate with the custodial parent if a problem arises with regards to paying the child support on time.  If you suddenly have a problem such as losing your job, reduced hours, etc., and you have been consistent with paying your child support, the custodial parent will be more understanding and willing to work with you until the problem is resolved.  If you are not consistent, you are less likely to receive understanding and compassion from the custodial parent.

What is “Child Support”?

 Monday, April 30, 2018

Child support is an amount of money paid by the non-custodial parent to the custodial parent or guardian for the expenses associated with the care and support of the minor child.  The terms “care and support” encompasses food, clothing, and shelter.  Basically, the parent that is paying the child support is paying a court-ordered amount of money for their share of these basic living expenses of the child.  The Court may additional sums, or portions of expenses, to cover non-covered medical or dental expenses and extra-curricular activity expenses of the minor child.

 

Child support is a court-ordered obligation.  Child support is relied upon by the custodial parent in most instances just to “make ends meet”.  Child support is paid to the custodial parent or guardian, unless otherwise redirected through the Department of Human Services. 

 

If you are ordered to pay child support, pay it as ordered.  The failure to pay child support as ordered is contempt, and the non-custodial parent who fails to pay as ordered can be incarcerated and ordered to pay the other parent’s attorney’s fees. 

Sexual “Misconduct” and The Effect on Custody

Tuesday, April 24, 2018

Sexual misconduct no longer dictates which parent receives custody.  However, it can play a significant role in that determination. 

 

Moral fitness of the parents is one of 12 factors the Court considers when evaluating custody.  Just because one of the parties has committed adultery does not automatically grant the non-offending parent custody of the children.  The Court analyzes the suitability of each parent by looking at the situation from the viewpoint of the child.  Does the misconduct of the parent negatively affect the child?  If so, to what extent?  How does this misconduct compare in relation to that parent’s other attributes as a parent?  What about the non-offending spouse - is he or she more suitable to have custody taking into account all factors? 

 

This analysis is the same whether the offense is adultery, cohabitation, or one of the parents is in a same-sex relationship. 

Regardless of the "misconduct", it is not the sole determining factor in a child custody dispute and will be put into context with the overall parenting abilities of each parent.

Pets and Custody.

Tuesday, April 17, 2018

Which is among the fastest growing controversies in divorce law in America today?

Your choices are:

  1. Pet custody cases; or

  2. Eating the last piece of pie without first offering it to your spouse (where’s my pie?); or

  3. Keeping the heat on 84 in the summer and winter (is it hot in here to you?); or

  4. Waiting till after the garbage truck has run to take out the garbage (dang that early morning garbage truck driver!).

 

If you answered “Pet custody cases”, you’re really sharp!  (If 2, 3, or 4 was your guess, would you admit it?)

 

Although pets are considered personal property under Mississippi law, many states are seeing increases in this type of litigation.  So instead of just fighting over who has custody of the kids, people in other states are also fighting over who gets custody of Rover and Fluffy. 

Thus far I’ve not had a divorce that involved a dispute over who got the pet that was not fairly easy to resolve.  But I have had a few divorces where I was certain that one spouse was wanting the family pet for no reason other than to hurt the other spouse (this is incredibly cruel when that spouse was not getting custody of the child, but to hurt the custodial parent – and indirectly the child - they wanted the pet).  But that pales in comparison to the divorce case in California where the estranged wife euthanized the family’s two German Shepherds, who were the husband’s running companions, just to get back at her husband.  Although horribly cruel, the husband had no recourse as the German Shepherds were personal property under the law.

What are your thoughts on the subject? 

Beware Online Legal Forms.

Monday, April 9, 2018

The internet is the grand marketplace of everything.  Where else can you shop for houses, cars, electronics, clothing and legal documents?  

 

Several prominent companies have been offering do-it-yourself legal documents over the internet for some time.  Even a reputable nationwide radio personality endorses one of these companies.  Therefore, these do-it-yourself legal documents must be the way to go – right?

 

Most people spend $15, $20, or $30 on these online do-it-yourself documents.  However, most people don’t fully understand

the consequences of these documents (or certain provisions within these documents).  Also, these “one size fits all” documents are often not state-specific (regardless of their claims) and are not tailored or intended to fit every situation.

 

I drafted a trust for a client who had completed a trust from one of these online companies.  My client had enough insight to question whether this form trust agreement did what she wanted it to do.  It didn’t come close!  My client wasted her money and time with this do-it-yourself online form.

 

I’ve also seen other, more simple do-it-yourself documents that have been utilized such as deeds, simple wills and leases.  These too often fall short of the mark, and these do-it-yourself deeds that are filed in the land records can create clouds on title or create a problem with the chain of title.  When this happens, the $15 bargain you think you got on the do-it-yourself document can end up costing you or your heirs thousands of dollars in legal costs to unravel and fix (if it can be fixed) the problem it created.

 

That’s why it’s always best to hire an attorney to handle your legal needs.  The money you spend on an attorney to handle your legal needs correctly will pale in comparison to the costs to fix a problem later.

  • Should I Draft My Own Will?

    Tuesday, February 9, 2016

     

    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."

     

     

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

    Thursday, January 7, 2016

     

    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.       ​

  • In Loco Parentis

    Monday, December 7, 2015

     

    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.

  • The "Normal" Grandparent Visitation Schedule

    Monday, November 30, 2015

     

    ​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!​  

     

  • The "Why Me?" Question

    Monday, October 26, 2015

     

    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.
     

     

    by Jon Powell at 10:48 AM

  • Innocent Until Proven Guilty - Except When Children are Involved

    Monday, August 31, 2015

     

    ​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. 

     

  • Unhappy Client Equals Unhappy Lawyer

    Monday, August 31, 2015

     

    ​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.  

     

  • Being Honest with Your Attorney

    Monday, July 6, 2015

     

    ​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.

     

  • The "I'm Just Not Happy Anymore" Divorce

    Tuesday, May 12, 2015

     

                  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.

     

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

    Thursday, May 7, 2015

     

    ​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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Flowood, MS 39232