Archive for August, 2013

The Retirement Pension—Potentially One of the Most Valuable Assets in the Mississippi Divorce

Saturday, August 31st, 2013

Generally speaking, the marital home and the retirement pension may be the assets worth the most during a divorce, and, in many cases, the retirement pension may actually have more worth than the home. Particularly for women, the “golden-years” of retirement can be fraught with financial uncertainty, making the pension even more important. More than twice as many men as woman have retirement benefits and the benefits for men are nearly always higher than those of the woman. Further, many women spend years putting their spouse through school or raising the children, foregoing their own career only to find themselves facing vastly reduced circumstances during a marital breakup.

The woman’s contributions to her own retirement pension are negatively impacted making it even more important that she have a solid understanding of her husband’s pension. Because the division and distribution of pensions can be complicated, the woman in the divorce may grab at the more immediate need—the marital home—particularly if she still has children at home. Pensions may have much more long-term value but unlike cash in the bank or stocks and bonds, the rights to a pension involve:

  • Classification
  • Valuation
  • Distribution
  • Qualified Domestic Relations Orders
  • Other miscellaneous areas including post-decree increases

Pension benefits earned prior to marriage remain the pension-earner’s separate property however any pension benefits earned during the marriage become community property. A valuation date will be established in order to accurately determine pension benefits. Under a defined benefit plan, the value can fluctuate dramatically after a separation but before the divorce. Suppose a pension is valued at $500,000 and the non-employee spouse is awarded $250,000 of that in the settlement. Then, prior to the settlement date the market takes a nosedive and the pension is only valued at $300,000. This means the non-employee spouse still walks away with $250,000 while the employee spouse is left shortchanged.

The account must be appraised to determine its present value; the valuation method may be present value, also known as “cash out” value, deferred division where no present value is determined or reserved jurisdiction whereby the court retains authority to order distribution at some point in the future. Reserved jurisdiction leaves both parties in limbo and is not considered a good outcome for a pension plan during the divorce. Using the cash out method is certainly the easiest way to divide the pension during settlement negotiations—the non-employee spouse is awarded a lump-sum settlement with the employee-spouse retaining the pension. However, for long-term financial benefits, the deferred division may result in a higher settlement for the non-employee spouse.

What is a QDRO?

A QDRO tells the pension plan administrator exactly how the pension will be divided, according to the judge’s ruling in the divorce. The QDRO must be prepared following the guidelines of the company’s pension plan but must also conform to the Employee Retirement Income Security Act. Any adjustments or options for early withdrawal must be made available to the non-employee spouse as well as the employee-spouse. The QDRO applies to the 401(k), the IRA or any other traditional pension plan which qualifies for special tax treatment. Most military and government pensions are covered under other laws, and QDRO’s only apply to plans qualified through the IRS. Railroad retirement benefits, Social Security payments, Workman’s Comp awards for disability and compensation for military injuries generally do not fall under retirement benefits. If your spouse has any of these types of benefits, you should speak with your divorce attorney to determine whether you are entitled to other benefits in lieu of a portion of these non-pension benefits.

Other Pension Considerations

Discuss with your attorney whether the pension division will affect your child support payments as in some instances it could. Most pensions specify a retirement date of sixty-five, although there are exceptions—find out what your spouse’s particular plan states. Because QDRO’s and pension plans can be extremely complex, your divorce attorney must have the necessary experience and knowledge in order to ensure you receive the most equitable settlement possible.

Call Today for a Highly Qualified Assessment of Your Divorce

Finding an attorney with the necessary experience in pension division can be difficult however the Law Offices of Matthew S. Pool has that experience and will use it to your advantage. Our goal is to ensure you receive a fair divorce settlement—one that allows you to live in much the same manner as you were living prior to the divorce. We want to make your life easier and less stressful during a time we recognize as extremely challenging. Matthew S. Poole deliberately maintains a lower case load to ensure he is always available to his clients. You are not simply another “case” to us—we have the resources and skills which will make your divorce less anxiety-inducing. Call us today at (601) 573-7429 or take a look at our website for additional information.

How Divorce Among the Over-50 Crowd is Unique in Mississippi

Tuesday, August 27th, 2013

In 1990 only one in four divorces occurred among those aged fifty or above. By 2009, that number had increased to one in every four although overall divorce rates remained steady for the population as a whole. The explanation for the increase in divorce among those over fifty is likely related to several issues rather than a single one. Many of the marriages among this age group are second marriages, which are more than twice as likely to end in divorce no matter what the age of the spouses. Increased life expectancy among this group of baby-boomers could also be a factor; once the children are grown and gone, looking forward to another few decades in a loveless marriage can simply seem like too much. Many of these couples remained in their marriage to avoid subjecting their children to a divorce, but once the children are gone, they may be unable to find any compelling reason to remain in the marriage.

Expectations of Marriage Different for This Age Group

According to sociologists, this age group entered marriage with very different marital expectations than those of their parents and grandparents. Those marrying in the seventies and eighties were more likely to be focused on their individual happiness, wants and needs than on traditional marital roles. In other words, baby-boomers who have sent the last child to college may begin thinking of their own mortality as well as the diminishing possibilities for their own self-fulfillment.

Further, nearly two-thirds of the over-fifty divorces are initiated by women—likely due to the surge of women in the workforce and the ability of women to more easily support themselves following a divorce. If you are expecting to hear that there are now scores of older people living unhappy lives in a cramped apartment, you would be wrong; according to an AARP survey the vast majority of divorcees between the ages of 40 and 79 consider themselves to be “very happy.”

The Challenges of an Over-Fifty Divorce

Despite the apparent happiness of those who divorce later in life, there remain certain stumbling blocks along the way. These can include health concerns, being responsible for aging parents, supporting children in college, being closer to retirement and the loss of friends and family. The trend away from spousal maintenance still leaves many women in a precarious financial position. Women in this age group who chose to support their husband’s career path while raising children could find they are woefully unprepared for the workforce. The resume’ gap can make it difficult to return to a prior career and the women in this age group may feel uncomfortable with the idea of returning to college.

Retirement Pension Issues

Retirement planning for both men and women can also take a serious hit when a divorce occurs at this point in the marriage. A separate court order known as a Qualified Domestic Relations Order to properly cover the division of retirement benefits is highly recommended. Both parties will need to know such things as whether distributions can be received without tax penalties, whether a spouse has taken any loans against a 401(k), whether hardship withdrawals are possible and whether there are survivor benefits if the ex-spouse dies after the divorce.

Social Security Benefits

Those who were married longer than ten years, who are 62 years or older, can collect retirement benefits on their former spouse’s Social Security record after the divorce without reducing the spouse’s benefits. Once divorced for at least two years, benefits are available through the former spouse even if that former spouse is eligible but not yet receiving benefits. Should a former spouse die following the divorce, the survivor may be eligible for survivor benefits of 100% of the former spouse’s Social Security benefits, so long as the marriage lasted ten years or more, the survivor is at least 60 years of age and is not entitled to retirement benefits equal or greater than those of the former spouse.

Keeping the Marital Home

In many cases the over-fifty spouse who retains the marital home may receive considerable benefits such as eligibility for real estate property tax exemptions and waivers, eligibility of a reverse mortgage, special treatment for those qualifying for governmental benefits , deductions of mortgage interest and taxes, and access to equity even if the decision is later made to downsize. It is important to discuss these issues with your attorney before you make decisions which could have repercussions for many years to come.

We Believe We Can Help You Through Your Divorce

If you are in the over-fifty age group and have made the decision to divorce, you need advice from a highly experienced divorce attorney who keeps your best interests uppermost in the equation at all times. Matthew S. Poole is such an attorney. Matthew has a sterling reputation and always fights for the rights of his clients. The Law Offices of Matthew Poole have the experience, the resources and the compassion to help those going through a divorce. We understand this is a difficult time and will do everything in our power to make it easier. We offer reasonable rates as well as lower case load, ensuring you will always receive personal attention and your phone calls will be answered. Call (601) 573-7429 to set up an appointment to discuss your individual circumstances.

How High Net Worth Could Affect Your Mississippi Divorce

Thursday, August 22nd, 2013

If you are going through a divorce, you will be dealing with a variety of potentially difficult issues, all the way from child custody to the equitable division of assets. When a high net worth on the part of one or both partners exists, those issues can multiply exponentially, making the divorce considerably more stressful for those involved. Perhaps the most important issue when an individual of high net worth and a less affluent spouse are divorcing is that unknown assets cannot be properly valued and distributed.

When Only One Spouse Has a High Net Worth

The savvy divorce attorney will first identify all assets involved, gathering all information and evidence in order to support his or her client as assets sometimes go “missing” during particularly contentious divorces. Individuals of high net worth who are divorcing their less affluent spouses bring complex issues to the table. Interrogatories and document demands must be prepared which fully address all investments and assets. In many cases your attorney may recommend that you hire a forensic accountant or a financial investigator who can thoroughly investigate the spouse with the high net worth, particularly if you feel assets are being squirreled away.

When Both Spouses Have a High Net Worth

You would think that if both spouses have considerable assets and holdings it would be much simpler to accomplish an equitable distribution between the two, however this is not always the case. High net worth on both sides means the division becomes much more complicated, particularly if assets have been freely commingled during the marriage. It can become very difficult, especially in marriages of long duration, to accurately determine what each party brought to the marriage as well as what each has contributed during the marriage.

Hard-to-Value Assets

Division of assets in any divorce can be extremely anxiety-producing for those involved, but when the marital estate contains hard-to-value assets or a business, the anxiety can increase. Perhaps one party enjoyed a more successful career, came from a wealthy family or simply brought more assets into the marriage from the very start. Whether you are the person with more assets or the one concerned about your future, it is imperative you have an experienced divorce attorney by your side from the very beginning. Once a thorough evaluation of businesses, stocks and investments is determined and all assets are believed to be honestly presented, the divorce attorney begins the job of developing a comprehensive overview of the demands of his client.

Equitable Distribution in Mississippi

Mississippi is an equitable distribution state with the added caveat that each spouse may retain his or her property for which a valid title is held, however jointly titled property will be split. If the property settlement is disputed, a judge will make a decision on the asset distribution—and that decision may not be to either party’s liking. Marital assets are generally defined in Mississippi as property accumulated during the marriage, with exceptions such as inheritances exempt from such division. The courts will look at what you contributed to the marriage, both in financial assets as well as homemaker contributions and taking care of the children. Marital debts are also subject to division which is an important point for couples who carry significant credit card debt, mortgage debt, medical or other debt. Retirement benefits are also subject to division in most cases.

A Lawyer for Your High Net Worth Divorce

Divorce is difficult no matter the level of assets. Matthew S. Poole is an experienced attorney who can recommend forensic accounting experts and tax accountants to determine whether all assets have been properly stated and valued. As your divorce attorney, Matthew’s goal is to ensure your standard of living is not denigrated by the divorce and that your share of the marital estate will be maximized to the extent possible. No matter the extent or variety of your particular assets or those of your spouse, Matthew Poole will represent your interests aggressively while listening to your concerns. Matthew will work closely with you to obtain the best possible outcome and will use his extensive knowledge of Mississippi divorce to reach that outcome. Call (601) 573-7429 today to speak with Matthew Poole.

Alienation of Affection in Mississippi

Tuesday, August 20th, 2013

It’s frustrating when the person you believe ruined your marriage simply walks away with no repercussions whatsoever. But wait, you live in Mississippi—one of the seven states which has stubbornly held on to the tort of alienation of affection. The law stems back to the admittedly scary times when a wife was deemed the possession of her husband allowing a scorned husband to pursue his wife’s lover with the law rather than a gun. The modern-day translation of alienation of affection generally boils down to either money or revenge—or both. Among the states which still recognize alienation of affection (Mississippi, New Mexico, North Carolina, South Dakota, Utah, Illinois and Hawaii) awards topping a million dollars have been handed down to aggrieved spouses. Small consolation, but should your spouse cheat, it could be better for you if he or she cheats with a home-wrecker who is financially well-off.

Mississippi Alienation of Affection Cases

Consider the case of Mississippi’s own Representative Chip Pickering who, after serving for over a decade in Congress, cited the desire to devote more time to his wife and five children as his reason for abstaining from the run for re-election in 2008. As it turns out, Chip possibly should have been spending more time at home prior to this decision; his wife filed an alienation of affection suit against her husband’s alleged girlfriend, a prominent socialite, stating she (the wife) had suffered severe damage to her husband’s affection and consortium as a direct result of the defendant’s reckless and negligent behavior.  

In order to avoid the media publicity frenzy the parties involved agreed to keep the details of the case private, but considering the financial assets of the alleged paramour, speculation is rife. While Pickering may have been the most high-profile case, the most well-known case of alienation of affection in Mississippi involved Johnny Valentine, a Marshall County resident. Valentine received an award of $750,000 after suing the man who impregnated his wife, destroying his marriage in the process.

Alienation of Affection—a Touchy Subject in Mississippi

The matter of alienation of affection in the state of Mississippi is considered a very delicate one, legislatively speaking. While opponents believe such suits result in already-antagonistic divorces becoming even more contentious, proponents in this conservative state believe cheaters should be held accountable. Legislative opposition to the tort surfaces from time to time with the tort surviving two major litigation campaigns for its abolition in 1999 and 2007. Two cases in 2011, however underscore the fact that overall the Mississippi Supreme Court is comfortable with the alienation of affection tort.

One of the 2011 cases involved a husband who filed suit against his wife’s alleged paramour after gaining access to her cell phone which showed hundreds of texts and photos exchanged. Although the defendant lived in Louisiana and argued he was never “physically together” with the wife in Mississippi while she was married, the courts disagreed. Finding the man’s e-mails, phone calls and text messages constituted “sufficient minimum contact” for their purpose, the court upheld the original finding of alienation of affection.

Things to Consider Before Filing an Alienation of Affection Suit

Before you jump on the alienation of affection bandwagon, consider that in order to prevail in such a case you must be able to prove wrongful conduct occurred. You must then be able to definitively tie that wrongful conduct to the dissolution of your marriage due to loss of your spouse’s affection. While Mississippi courts do not require you to prove adultery, that proof would certainly help your case; adultery is a presumption of malice, allowing punitive damages as well as compensatory damages. The statute of limitations for alienation of affection cases is three years—a time which is not subject to the discovery rule.

When Your Marriage is Over, the Law Offices of Matthew Poole Can Help

Whether you believe your marriage was destroyed by another person or there are other reasons you are ending your marriage, attorney Matthew S. Poole can help. With a solid history of providing superior legal representation and fighting zealously for his clients, Matthew Poole understands the myriad of emotions and legal issues facing those whose marriage is broken. By limiting case loads and offering extremely reasonable rates, the Law Offices of Matthew Poole is reaching out to those in need of a compassionate divorce attorney. Call (601) 573-7429 today for a consultation. For more information, check out our website.

Breaking Up is Hard to Do—Especially When Social Media Gets in the Way

Tuesday, August 20th, 2013

Recently a Miami man shot his wife, posting a photograph of her dead body on Facebook along with a confession. While this is an extreme example of how social media is used in this age of information, one statistic states that one out of every five divorces in the United States is at least partially due to Facebook, and sixty-six percent of online divorce evidence comes from Facebook. Attorneys are no exception: a full four-fifths of divorce attorneys report either using or encountering evidence extracted from social websites. Further, Facebook users who have either connected or re-connected with past partners on FB were much more likely to resort to emotional and physical infidelity.

The New Dimension Added From Social Media

Even a relatively short two decades ago breakups were much less complex. One of the primary reasons this is true could certainly be tied to the insanely huge amount of photographs and social media postings which memorialize forever even the most insignificant moments. Smart phones are the norm, so few people are ever caught without a camera when a photo op arises.

Unfortunately, the proliferation of social media postings has likely contributed to the dissolution of many marriages.  Insecure spouses are keeping an eye on who their mate is communicating with on Twitter and Facebook. When past girlfriends and boyfriends are part of that communication the resulting social media-induced jealousy can lead to heated arguments between spouses and those heated arguments can contribute to divorce.

Why it is Easier to Cheat When Facebook Enters the Picture

The Internet can give users a sense of anonymity as well as access to a world where temptation abounds and spouses not only have to worry about physical relationships but e-motional affairs as well. A troubled relationship suddenly becomes much easier to leave for a “better deal.” In fact, Facebook ranks as the number one place spouses who are unhappy in their marriage go to fantasize about a better relationship.

Using FB to Threaten a Spouse

During a nasty divorce, Facebook may be used as a means of controlling a spouse and getting more than a fair share of the marital assets. Most spouses share their most intimate secrets throughout a marriage. Then when a divorce is underway an unscrupulous spouse may use these secrets as blackmail. “If you don’t give me custody of the children I’ll post your secret on FB.” Many spouses actually carry through with the threat, posting secrets or personal details of their spouse’s life where friends, relatives, neighbors and bosses can read all about it. One attorney ended up being disbarred when her ex posted information on a past addiction, thus ruining not only her reputation but her livelihood as well.

How You Can Hurt Yourself

Many people are not truly aware of the damage they can do to their own divorce simply by posting photos and status updates. You may think it is harmless to post a photo of you acting silly at a party with friends—if you happen to be in the middle of an antagonistic custody battle, this photo may end up as evidence to prove you are an unfit parent. Likewise, if you are trying to avoid paying spousal support, then posting the photo of your brand new boat would not be a good idea. You should never, ever post anything on Facebook which has even the tiniest chance of coming back to haunt you during your divorce.

Further, never post anything at all when you have been drinking—photos posted during an alcohol-induced rage cannot be taken back—once it is on the Internet it is memorialized forever. To ensure your ex does not hack into your social media accounts, change your passwords often and keep them in a safe place. Take the time to read and understand the privacy settings on Facebook—then use them. De-friend your ex once a divorce is in the works then use your common sense about posting anything which could even remotely be considered inappropriate.

When Facebook is Part of Your Divorce, We Can Help

Matthew S. Poole is a highly skilled divorce attorney with a true passion for helping his clients through the pain of a divorce. Matthew has the necessary experience plus extensive knowledge of all laws pertaining to Mississippi divorce. Matthew Poole deliberately keeps his caseload lighter in order to ensure his clients receive the quality, personalized attention they need and deserve during this difficult time. Give Matthew Poole a call today at (601) 573-7429 for the quality legal representation during your divorce.