Archive for August, 2012

Jackson Divorce Attorney Discusses Child Support in Mississippi

Saturday, August 25th, 2012

No matter where you live, getting a divorce is extremely taxing for all parties involved, including the parties’ minor children. In Mississippi however, state guidelines governing child support awards set aside a specific percentage of one’s gross adjusted income – known as the percentage of income formula – to determine same, which primarily depends upon the number of children born of the marriage.  Said percentages are as follows: for 1 child – 14%, 2 children – 20%, 3 children – 22%, 4 children – 24%, and 5 children or more – 26%.  Additional factors may be taken into account in determining an appropriate child support award, such as the taxes paid by the parties, their respective 401k/IRA contributions, and daycare costs, if applicable.  In the event that the parties were never married and the father of the child(ren) does not contribute to their support, the Mississippi child support office can ask the court to render a paternity determination and assess child support accordingly.

A Mississippi court has the discretion to order child support pursuant to the interests of justice and equity.  In cases where both parties have substantial earnings or assets, each can be required to provide financial support for the minor children in proportion to their financial ability.  Additionally, a party may be ordered to pay for the health insurance of the minor child/children.

Child support in Mississippi typically ceases when the minor child or children of the marriage attain the age of 21, join the military, are married, or, are incarcerated for two years or more.  At the time of emancipation, one’s child support obligation technically ends however, the court must be made aware of this before a person can voluntarily stop paying.

Failing to pay child support can result in serious and sometimes irreversible legal consequences.  In this view, it is strongly recommended that people remain current on their child support payments, despite the financial difficulty in doing so.  The consequences associated with people who accrue child support arrearages can include being held in contempt of court for his or her violation of the court’s original child support order. A parent who does not render timely child support payments can also be sent to jail, have their wages and/or bank accounts garnished, lose their driver’s license, and have their passport revoked.  Before back child support payments start adding up, it is urged that people consult with an attorney, who can assist them in determining whether they are eligible to modify the original child support order based upon a change in their financial circumstances.

If you are considering getting a divorce, or would like to know whether you may be eligible for a modification to your current child support order, give us a call now to learn more about how we can help you.  We are highly experienced family law attorneys who look forward to providing you with superior legal representation.

What Everyone Should Consider When Getting a Divorce in Mississippi

Saturday, August 25th, 2012

As experienced Mississippi divorce attorneys, we have never heard of someone who is completely satisfied after having gone through the divorce process. Even if a divorce is inevitably the best option for you, it undoubtedly leaves no winners, and is often painstaking and difficult to endure for all parties, including the children of the impending severed marriage.  We often hear clients saying that they want their day in court however, this never seems to rise to the level of satisfaction that they are seeking.  As such, we recommend that you consider the following tips when pursuing a divorce, as it can help you reshape your focus to better deal with the emotional and physically taxing aspects inherent in the dissolution process.

Think about it this way – your divorce proceeding is much like a game of strategy.  While most people think that arguing tooth and nail about every little thing is the best way to approach a divorce (i.e., to purposefully make your spouse miserable), we don’t recommend this option.  Specifically, the more you argue over the little things, the more difficult it will be to get what you want in the end.  For instance, when you do nothing but argue with your spouse throughout the divorce process, it will be harder to get them to concede to things that you may want, such as the family car, the house, and family pets.

There is a reason why a divorce is often called a “dissolution proceeding”.   In other words, there is no way to go from deciding to get divorced one day to actually being divorced the next, as getting a divorce can sometimes be a long and drawn out process.  This is especially prevalent among people who have been married for a significant amount of time.  In essence, the longer your marriage lasted, the more issues you may have to resolve.  It is also important to consider that the quicker you try to fast forward your divorce, the more likely that you may end up getting the shorter end of the stick in the end.

The more planning you do, the better off you will be.  It goes without saying that once you think that a divorce is on the horizon, it is best to start collecting evidence in support of your position.  For instance, if you think that your spouse has been unfaithful during the marriage and you have emails or other tangible evidence to back this up, keep these handy and don’t lose them.  Once you hire an attorney, be sure to give them to him or her so that they can help you build your case.  Moreover, we also suggest that when planning a divorce, you consider who will take what, who will leave the marital home, who will stay, how you plan on divvying up the expenses, and with whom the children should reside, etc.

Don’t air your dirty laundry.  Nowadays, Facebook postings are being used against spouses on nearly a daily basis.  How is this so?  When people get angry, (which is completely normal during the divorce process), it is easy to post our frustrations on Facebook, letting our friends know how we feel and gathering their support.  However, these can be used against you, and for several reasons.  For example, we had a client whose spouse was trying to seek more maintenance from him.  Despite claiming to be in financial straits, our client was able to produce to the court Facebook postings that she had made about her recent trip to the Caribbean, suggesting that she was anything but destitute.   We cannot underscore enough the importance of avoiding the posting of potentially inflammatory or private information on public webpages – especially on those of which your spouse and/or his or her friends and family, may have access.

Talk to your children and make all efforts to get along with your spouse, despite how difficult it may be.  Divorce is hard enough on your children, but throwing them into the center of the controversy is the worst thing that you can do, and may have long term or even permanent consequences.  To illustrate, when one parent tries to turn their kids against the other spouse, nothing good comes from it, potentially leaving all parties angry, frustrated and resentful.  Avoid this at all costs, and if you cannot seem to get along with your spouse despite all reasonable efforts, consider getting counseling to help ease the process for everyone involved.

Don’t represent yourself.  There is a reason why even lawyers who represent themselves can be fools.  If you do not seek representation, or you hire an attorney who is not experienced in handling divorce cases, you may subject yourself to unwanted liability and other serious issues.  A divorce is traumatic enough as it is and having a skilled attorney is key.

If you are seeking a divorce in Mississippi, give us a call to learn more about your legal options, your potential liability exposure, how to prove your case, and the nature and extent of your rights and responsibilities.  We look forward to providing you with excellent representation.

Alimony in Mississippi Divorce Cases

Monday, August 20th, 2012

In Mississippi, alimony – also known as spousal support – can come in several forms, such as permanent periodic alimony, lump sum alimony, rehabilitative alimony and reimbursement alimony.   The relevant factors in determining an alimony award in Mississippi include whether it can be modified, how payments are made, whether all at once or over a period of time, and whether it terminates upon certain conditions, such as remarriage or death of either the paying or recipient spouse.

With regard to permanent periodic alimony, this is normally available to the receiving party until he or she either remarries or dies.   Additionally, this type of alimony can also be modified if there is an unforeseeable and substantial change in circumstances.   In the event that you have exposure to this form of alimony, you must try and avoid it no matter what – as you may get stuck paying this for the rest of your life.  If you do end up having to pay this form of alimony, it is tax deductible and also, qualifies as income to your former spouse.

As for lump sum alimony, this is payable to your former spouse as a lump sum payment, as its name suggests.  This type of alimony however, unlike permanent periodic alimony, generally cannot be modified, is not tax deductible, and does not lapse upon the death or remarriage of either the receiving or paying spouse.  This form of alimony is often ideal for a person who may be liable to a spouse, as it has a set end date, whether paid all at once or in installments.

While lump sum alimony can be awarded for a myriad of reasons, rehabilitative alimony is typically awarded to a spouse in order to help them become more self-supportive and also, to prevent insolvency.  Often times, if a spouse wants to go back to school or obtain some other form of vocational training, rehabilitative alimony is usually the best option.   Lastly, reimbursement alimony is a type of alimony that essentially pays a spouse back for allowing the other spouse to advance their own professional objectives.   A prime example of this type of alimony is when a lawyer’s wife decided to take care of the home and kids while her spouse went to law school.

If you are considering getting a divorce in Mississippi, it is best to consult with an attorney experienced in handling the various nuances and complexities associated with these types of cases.  Don’t go about your case alone, which can make you more vulnerable to various liabilities, such as alimony.  Only an attorney can assist you in determining what your legal options are, the nature and extent of your rights and responsibilities, and how to limit your potential liability.  Give us a call now – we look forward to the opportunity of providing you with excellent and sophisticated representation.

Contact Mississippi alimony lawyer Matthew S. Poole for a consultation by calling (601) 573-7429 today. 

Winning Child Custody in Mississippi

Sunday, August 19th, 2012

It is essential for parents seeking to get sole physical custody of their children to understand the custody laws of their state – especially in order to prepare themselves for demonstrating that they are the “better” parent for purposes of child custody.   In Mississippi, it is particularly important to consider that the court will analyze child custody using the best interest standard, which may or may not result in you being awarded sole custody.   As such, hiring an experienced Mississippi family law attorney to help you is certainly ideal, as they are experienced in handling these types of cases and also, in zealously advocating the wishes of their client during the divorce process.

Many parents challenge custody with the desire of obtaining sole physical custody of their children.  Usually, parents argue for this form of custody due to their concerns about the fitness and ability of the other parent to house and care for their children.  Regardless of the reason for pursuing sole custody, it is crucial to understand that there is a high burden to overcome when trying to prove one’s entitlement to sole custody in Mississippi.  In other words, Mississippi courts, in awarding sole custody, will require a showing by the party seeking sole custody that he or she is a better parent than the other.  Moreover, Mississippi judges tend to be reluctant in causing anything to get in the way of a parent’s relationship with their children given the presumption that both parents are equally capable of caring for their children. As such, a party seeking sole custody must make a showing that they are better suited to care for the children and more able to meet their individualized needs.

How then, can you prove that you are the better parent for purposes of getting sole custody?  Typically, a Mississippi court will analyze your children’s sleeping patterns, daily routines, extra-curricular activities and other factors when making this determination.  The more you demonstrate your ability to support and encourage a healthy and active lifestyle for your children, the more likely a court will take notice of this in rendering a custody decision.  Mississippi courts will also consider the emotional stability of the children.   Meaning, they will examine how the children fair with each parent and how well adapted they are to being with them.  Additionally, they will also take into consideration whether the parent seeking sole custody has appropriately addressed the emotional needs of the children, such as getting them counseling or other types of therapy in the event that they are struggling.

If you are interested in getting a divorce, it is essential to speak with a Mississippi family law attorney capable of handling these types of cases.  Only a skilled attorney can help you determine what your legal options are, the nature and extent of your rights and responsibilities, and how to optimize your chances of getting what you want out of your divorce case.  Give us a call now – we look forward to providing you with excellent representation.

Contact Mississippi custody lawyer Matthew S. Poole for a consultation by calling (601) 573-7429 today. 

Child Custody Agreements in Mississippi

Saturday, August 18th, 2012

In Mississippi, parties to a divorce can create a child custody agreement, which normally a) contains a plan for custody and visitation of the minor children, and b) determines how vacation time and holidays will be apportioned among the parents.  A child custody agreement can be created as soon as your divorce case starts, and ends when the court ultimately approves its terms.  Importantly, these agreements, once accepted, legally bind the parties and as such, must be complied with at all times.

The most efficient way of putting together a child custody agreement is by working together with your spouse during the divorce process.  While this is not always possible given the difficult circumstances often surrounding a divorce, the more you are able to cooperate with your spouse, the less painful your divorce process may be.  If you are struggling to get a custody agreement together, Mississippi allows for a mediator to assist with the process.  Experienced Mississippi family law attorneys can also be extremely useful in helping the parties reach an agreement.

In order to create an appropriate custody agreement, it is important to understand the various custodial arrangements that parents can seek in Mississippi.  Specifically, a party can seek sole custody, which is when a child resides with one parent and has visitation with the other.  Parties can also seek joint physical custody, the most common form sought, which refers to an arrangement where both parents share in the custody of the child.  This does not necessarily mean that the time spent with each parent is equal however, it does afford the parties a reasonable amount of time to be with their children.  Moreover, parties can also seek joint legal custody, which is the ability for both parents to make important decisions about the health, education and welfare of the children.  Most often, parents seek joint legal custody unless, i.e., the ideologies or beliefs of the one parent are the complete polar opposite of the other, making it more appropriate for one parent to have sole legal custody.

When coming up with an appropriate custodial arrangement, it is highly recommended that parents consider not only their needs, but also, the needs of their children.  This means that parents should think about the adaptability of their children, with whom would it be more appropriate for the children to primarily reside, how suited the children are to their school, church, and community in general, and also, what their children have expressed in terms of their own preferences.

Once an appropriate custodial arrangement has been established, a visitation schedule can also be included within the agreement.  Parents should contemplate a schedule that is convenient for all parties and also, easy to follow.  While visitation schedules may vary, many people choose to have the children spend every weekend or every other weekend with one parent while they remain at the other parent’s house during the school week.

Additionally, we cannot stress enough the importance for parties to a custodial agreement to realize that it is legally binding.  As such, you should make sure that the agreement reflects everything both accurately and appropriately.  Forgetting to add something in the agreement can create headaches later on so we always recommend that you review the agreement in its totality before signing on the dotted line.  Again, attorneys can really add value to this process, and as such, it is highly recommended that you work with one in order to fully protect your legal interests.

If you are considering getting a divorce, it is essential to consult with an attorney who is experienced in handling these types of cases.  Only a skilled Mississippi family law attorney can help you learn more about your legal options, the nature and extent of your rights and responsibilities, and how to optimize your chances of getting what you want out of your divorce case.  Give us a call now – we look forward to providing you with excellent representation.

Contact Mississippi custody lawyer Matthew S. Poole for a consultation by calling (601) 573-7429 today. 

The 411 on Getting a Divorce in Mississippi

Friday, August 17th, 2012

In Mississippi, state law governs the process by which one can get a divorce.  Specifically, it dictates the particulars of who can get a divorce, the underlying legal process related to same, how property is divided, and also, the manner in which child custody and support are determined.  Accordingly, it is important to become familiar with Mississippi’s divorce laws in order to understand your legal options and obligations before starting the process.

Who then, is entitled to get a divorce in Mississippi?  Generally, parties eligible to get divorced in Mississippi must have sufficient contacts with the State, which primarily includes being a resident for at least 6 months prior to filing.  While a divorce premised on no-fault grounds may be commenced in any county where either spouse resides, a fault based divorce however, must be brought where the filing party resides if the defendant cannot be located or lives outside of the State.  In the event that the defendant is a resident of Mississippi, then the divorce proceeding can be brought in any county where the spouses reside.

Does Mississippi require you to be separated for a certain period of time before starting the divorce process, and how long does the divorce process usually take?  In Mississippi, there is no statutory requirement to be separated before filing for divorce.  However, there is a sixty day waiting period before the court can order a no-fault divorce.  In highly contested cases, a divorce can take several months, if not years, to resolve.

What are the costs associated with filing for divorce in Mississippi?  When you file for divorce, there generally are two costs for pursuing same, which includes both court costs and legal fees.  The cost for actually filing your divorce case is usually around $52.00, but you may be required to pay an additional $25.00 for serving your spouse with your divorce petition.  As for legal fees, this generally varies depending upon the degree of complexity of your case and the legal positions of the parties (i.e. are the parties trying to resolve the case together or are they completely polarized?).

Is it necessary for me to prove grounds for getting a Mississippi divorce?  Generally, no.  In Mississippi, you can get a divorce on no-fault grounds, which means that you can end your marriage due to whatever reason why the union has irreconcilably ended.  Importantly, there is also no greater benefit to a party seeking a divorce based upon fault (such as adultery, impotency, insanity, desertion, etc.), as such grounds must be proven in the event that they are challenged.

How do Mississippi courts divide marital property?  Mississippi is an “equitable distribution” state, which means that each spouse takes his or her separate property, with the court dividing the marital property based upon several dispositive factors, such as the age, education, background and earning capacities if both parties, the standard of living during the marriage, the health and needs of the parties, etc.

How is child support determined in Mississippi?  Child support is examined in Mississippi using what is called the “income shares” model, which includes 1) calculating the income of both parents and adding it up, 2) taking the total income sum and applying it in a way to render the applicable child support payment percentages, 3) adding to the equation the extra costs incurred by the parties, including daycare and medical expenses, etc., and 4) dividing the ultimate sum by each party’s respective income.  Additionally, child support is payable to the custodial spouse until emancipation of the child, which usually occurs when the child turns 21, is married, joins the armed services, or is sent to prison for at least two years.  Under certain circumstances, a Mississippi court can also order that a child be emancipated.

Will I have to pay alimony to my ex?  A party may entitled to alimony, or spousal support, depending upon several factors, (while not exhaustive), including the income, expenses, ages, and physical condition of the parties.  Additional considerations are:  the standard of living of the parties, the financial needs of the spouse seeking alimony, and whether any of the parties engaged in misconduct during the marriage.  Alimony in Mississippi can either be permanent or temporary, depending upon the underlying circumstances of one’s case.

If you are seeking to get a divorce in Mississippi, it is crucial to consult with an attorney who is experienced in handling these types of complex cases.  As evident from the above, there are several factors associated with getting a divorce in Mississippi, which makes it essential to work with an attorney capable of advising you of your legal options, the nature and extent of your rights and responsibilities, as well as the ways in which you can reduce your potential liability exposure. Give us a call now to learn more about how we can help you.  We look forward to providing you with superior legal representation.

Determining Grandparent Custody and Visitation Rights in Mississippi

Friday, August 17th, 2012

Constitutionally, a child’s biological parents have an extremely strong presumption of custody in their favor when faced with third parties’ competing interests.   This stems from the fact that courts, in reviewing the best interests of the child in determining an appropriate custodial arrangement, normally presume that the child is better suited to remain with his or her biological parents.   In general, custody is most often granted to parties other than a child’s biological parents upon a showing of clear and convincing evidence that said parents are not sufficiently fit to care for the child, have abandoned the child, or do certain things, such as regularly drinking while intoxicated, that pose a threat of harm to the child’s safety and/or wellbeing.

In Mississippi, the State Supreme Court overturned a decision granting custody to a child’s grandparents based upon a determination that the child’s biological father was ill-prepared, versus being unfit, to have custody over the child.  In essence, Mississippi courts, as evident from the aforementioned case, set substantial limitations on third parties when litigating these types of custodial issues, making it more difficult for grandparents and other third parties to gain custody rights over and above those of the child’s natural parents.  To further illustrate Mississippi’s preference towards a biological parent’s custodial rights, a court within the State denied custody to a child’s grandparents, who asserted that the child was permanently abandoned by its mother.  While the child was left for an extended period of time in the “custody” of the grandparents, the court determined that the mother never intended for the grandparents to permanently obtain legal custody over the child.

In addition to custodial rights, visitation by grandparents also poses certain challenges.  Specifically, the State of Mississippi will only allow a court to order grandparent visitation under certain limited circumstances, such as when custody is awarded to a parent that dies, or, a court terminates a party’s parental rights.  In the alternative, if the child’s grandparents maintained a significant relationship with the child, in essence, either fully or partially supported the child (whether financial or otherwise) for a period of 6 months or more, had frequent visitation with the child, including overnights, for at least one year, and the court determines that visitation is in the child’s best interests, grandparents may be awarded visitation rights.

If you are a grandparent seeking to obtain either custody over or visitation with your grandchild, it is important to speak with an experienced Mississippi family law attorney to determine what your legal options are, the nature and extent of your rights and responsibilities, and how to optimize your chances of success.  Give us a call today to find out more about how we can help you.  We look forward to providing you with excellent representation.

Contact Mississippi custody attorney Matthew S. Poole for a consultation by calling (601) 573-7429 today. 

Child Custody and Court Considered Living Arrangements in Mississippi

Thursday, August 16th, 2012

Mississippi courts typically render determinations about child custody and visitation based upon the specific living arrangements of the parties to the marriage.  In general, the standard that the court uses in making this decision varies based upon each parent’s unique set of circumstances.  Although considerations tend to vary by state, judges in Mississippi – especially when faced with a challenge by one party about the living arrangement of the other – tend to consider the following when determining child custody and visitation:

  1. The age and sex of the child – Specifically, if a parent is of the opposite gender of his or her child, a judge will expect that the living situation is conducive to the child’s need for privacy.  Additionally, older children tend to need more space than their younger counterparts.
  2. The number of children to the marriage – if the parties to a marriage have multiple children, a judge will expect them to have enough space to accommodate their children’s needs in this regard, especially for overnight visits.
  3. The parents’ individual set of circumstances – a judge in Mississippi will definitely consider the financial resources of each party when determining child custody and an appropriate living situation for the children.  For instance, a parent who is responsible for paying child support and/or alimony may be able to afford less given these expenses.  Hence, a judge may be more flexible with this parent regarding their living situation.
  4. The adjustability of the children – children who are used to being in a bigger space may experience difficulty in adapting to a smaller home environment.  A Mississippi judge will consider whether this may have any emotional effects on the children given the potential for a drastic change in their living circumstances.  However, a judge will examine this with the best interests of the children in mind, which presumes that even if a house is smaller, it will still afford the children with meaningful time with their parent.
  5. The safety and welfare of the children – a Mississippi judge will most likely want to know that the children will be residing in a safe home and community.  If there is a chance of harm to the children due to a parent residing in a questionable neighborhood, overnight visits may as a result, be limited.

If you are interested in getting a divorce in Mississippi, it is highly recommended that you consult with an attorney experienced in handling these types of cases.  Only a skilled attorney can help you fully understand what your legal options are, the nature and extent of your rights and responsibilities, and how to maximize your chances of getting what you want out of your divorce.  Give us a call now – we look forward to providing you with superior legal representation.

Contact Mississippi divorce attorney Matthew S. Poole for a consultation by calling (601) 573-7429 today. 


Child Custody Awards in Mississippi

Wednesday, August 15th, 2012

In Mississippi divorce cases, courts, unless the circumstances warrant, generally do not presume custody in the mother’s favor. While in the majority of cases, mothers naturally tend to receive primary custody over her children, the courts have in recent years begun to award custody to fathers in a variety of cases.  Theoretically, this means that both parents have an equally significant chance of obtaining physical custody over their children.

In determining an appropriate custodial/visitation schedule, the parties are free to negotiate the terms of same in their respective parenting plan.  If the parties are unable to reach an agreement in this regard, the court will impose its own terms.  Additionally, child custody determinations are awarded in Mississippi upon a review of the best interests of the child, which could result in a joint legal and physical custody arrangement between the parties, or a number of other scenarios, such as an award of legal custody to both parents and only physical custody to just one.   To clarify, physical custody refers to having actual possession and control over the child, while legal custody is the right to make “legally significant” decisions affecting the child’s life.

Additionally, the best interests that the court considers in rendering child custody decisions are as follows:  the child’s wishes, the parent’s wishes, the child’s relationship with her or her parents, or sisters, brothers and others who may affect the child’s best interests, the child’s connection with and adjustment to his or her home, school and the community at large, and lastly, the mental and physical health of all individuals involved.

In the event that a Mississippi court deems the child as having been abandoned or deserted by his or her parents, or for whatever reason determines that the parents are generally unfit to care for the child, it may award (i) both legal and physical custody to a third party who has or is capable of providing a stable and supportive home environment, or (ii) to any other person that the court feels is able to properly care for the child.

If you are contemplating a divorce, it is important to hire an attorney that is experienced in handling these types of cases.   Only a skilled attorney can help you determine what your legal options are, the nature and extent of your rights and responsibilities, and how to maximize your chances of success.  We look forward to providing you with excellent legal representation.

Contact Mississippi divorce attorney Matthew S. Poole for a consultation by calling (601) 573-7429 today. 

Mississippi Divorce Attorney Discusses “Attorney Client Privilege”

Wednesday, August 15th, 2012

The Attorney-Client Privilege is one of the oldest recognized privileges for confidential communications.  It is a legal concept that protects information exchanged between a client and his or her attorney and ensures that the information remain confidential.  The privilege is designed to encourage an open and relaxed communication between attorney and client so that all legal needs can be addressed at ease.  The attorney-client privilege may be raised at anytime during any type of legal proceeding.

There are general requirements under state law that pertain to the attorney-client privileged that should be addressed.  There are several elements to take note of in order to understand the circumstances to establish the existence of the attorney-client privilege.  The proclaimed holder of the privileged is a client or has sought to become a client by obtaining legal advice from an attorney.  One of the most significant exceptions within the attorney-client privilege is when the communication was made in the presence of individuals who are neither attorney nor client or when information has been disclosed to external individuals by the client.  Another exception to this privilege is when a client or potential client seek counsel from an attorney for the purpose of committing a crime or wrongdoing. The attorney-client privilege is also forfieted when the client has voluntarily waived the privilege.  An attorney speaking publicly in regards to a client’s personal business and private affairs can be reprimanded by the bar and/or disbarred, even if the client is no longer being represented by that attorney.  Exposing of a current or past client’s private information is viewed as a breach of the attorney’s responsibility toward legal trust.

Because the attorney-client privilege often prevents disclosure of information that would be relevant to a legal proceeding, courts are cautious when analyzing objections grounded in the privilege. Most courts will  require that certain elements be demonstrated before confirming that the privilege applies.  The five-part test is typically the initial factor taken into consideration in a court’s reasoning of accepting a claim for privilege.  The five-part test reads as followed: (1) the person asserting the privilege must be a client or someone attempting to establish a relationship as a client; (2) the person with whom the client communicated must be an attorney and acting in the capacity as an attorney at the time of the communication; (3) the communication must be between the attorney and client exclusively; (4) the communication must be for the purpose of securing a legal opinion, service, or assistance in some legal proceeding, unless for the purpose of committing a crime or fraud; and (5) the privilege may be claimed or waived by the client only.