Archive for September, 2013

Beyond Babysitting: When Grandparent’s Seek Visitation of Grandchildren in Mississippi

Monday, September 30th, 2013

With increasing frequency, many grandparents today have taken to petitioning the courts for visitation of their grandchild or grandchildren.  An example of one such case arose out of neighboring Alabama.  In ERG v. EHG, 73 So.3d 614 (Ala. Civ. App. 2010), the grandparents of two young girls petitioned the court for visitation of their grandchildren after their parents cut off ties with them.  The grandparents had maintained a close relationship with the grandchildren until a business dispute caused the girl’s parents, who are married and live together with their children, to terminate further relations with the grandparents.  The court faced the question of whether the parents in this instance had the parental right to deny the grandparents the opportunity to visit with their children.  The district court sided with the grandparents and awarded generous visitation.  The parents appealed, and the decision of the trial court was reversed.

The case went all the way to the Alabama Supreme Court—where the court not only denied visitation to the grandparents but struck down Alabama’s entire Grandparents Visitation Act, finding that a parent’s right to raise their children may not be undercut by a judge unless the parents are deemed unfit.  The grandparents filed a Writ of Certiorari to the U.S. Supreme Court, hoping the Court would be willing to revisit the issue of grandparent’s rights since its last ruling over 10 years ago.  The Supreme Court, however, declined to hear the case.

Currently, all 50 states have some form of grandparent’s visitation laws.  Among them, 18 states require some sort of showing that the parents of the grandchildren are unfit in order for the grandparents to be granted visitation and/or custody.  19 states take a more flexible approach, holding that there is a presumption in favor of the parent’s decision, but if the grandparents can show it is in their grandchildren’s best interests that they be awarded visitation, the court will consider doing so.

In Mississippi, grandparents can be awarded visitation under a limited set of circumstances.  The first instance is where the grandparent’s child has not been awarded custody or the grandparent’s child has had his/her parental rights terminated.  In this instance, the grandparent may have a viable case for visitation.  Secondly, a grandparent may receive visitation of a grandchild in Mississippi if their child is deceased.  If both parents are alive and married and/or share joint custody, a grandparent may still be able to seek visitation.  The grandparent would have to prove they had a viable relationship with the grandchild and visitation would be in the grandchild’s best interest.  To establish the existence of a viable relationship, the grandparent must show they supported the grandchild in whole or in part for at least six months and they had frequent visits with the child, including overnight visits for at least one year.

In sum, it is possible for grandparents to be awarded visitation of their grandchild or grandchildren, but it will require a skilled family law attorney and extensive evidence in the grandparent’s favor.  While Mississippi courts, like all courts, favors the decision of the parents as to their child’s upbringing, there have been several instances in which Mississippi courts have been inclined to order grandparent’s visitation.  These courts ultimately look to what is in the best interests of the child.

If you are a grandparent who had a previously strong relationship with your grandchild and are now being denied visitation, Matthew S. Poole can help.  Matthew has extensive knowledge of the most current grandparent’s rights laws and will fight for you to obtain the precious time with your grandchildren that you so desire.  Call Matthew today at (601) 573-7429 to obtain a case evaluation.

Mississippi Divorces – Fault vs. No Fault Divorce 101

Friday, September 27th, 2013

You have made the difficult decision to divorce your spouse.  Now you are probably wondering how to begin the divorce process and what type of divorce to seek.  In Mississippi, there are two central ways to obtain a divorce.

No Fault Divorce

The first is by way of agreement between you and your soon to be former spouse.  This type of divorce is based on irreconcilable differences and is commonly termed a “no-fault divorce.”  There are two main requirements for a no-fault divorce in Mississippi:

  1. Residency—in order to establish residency, one spouse (at least) must reside in the state of Mississippi for at least six months prior to filing for divorce.
  2. Agreement between the parties—in Mississippi, to divorce on the grounds of irreconcilable differences, both spouses must agree to the divorce.  The parties need not agree to all the terms of a divorce, such as alimony, division of assets, custody, but they must agree to the divorce.   If both parties cannot reach such agreement, it is often advisable to have each consult with an experienced divorce attorney.  A skilled divorce attorney may be able to negotiate between the parties and help the parties reach some sort of agreement so that they can file for a no-fault divorce.

Once these requirements are met, there are two ways to obtain a no-fault divorce.  The first is for the parties to reach an agreement on every aspect of the divorce, including: division of assets; alimony; child support; and child custody.  The parties must agree to the terms of the divorce in writing and sign their assent before a notary.

If the parties cannot reach an agreement to all terms of the divorce, then the court can decide matters in a trial on irreconcilable differences.  The judge (chancellor) will hear evidence by both sides and issue an opinion on the case.  Evidence of marital fault can be admitted and can impact things like division of assets, alimony, and child custody.  However, such evidence will be limited as the divorce is not based on fault grounds.

Fault Based Divorce

The second method for divorcing your spouse in Mississippi is based on fault grounds.  The Mississippi state legislature set out 12 marital faults which are grounds for divorce.  The list is as follows:

  1. Adultery
  2. Custody in the Mississippi Department of Corrections
  3. Incurable insanity
  4. Wife’s pregnancy by a different person at time of marriage where the husband was unaware
  5. Natural impotency
  6. Insanity or idiocy at the time of marriage, where spouse did not know of it
  7. Habitual drunkenness
  8. Habitual drug use
  9. Habitual cruel or inhumane treatment
  10. Desertion for one year
  11. Parties are related to each other to such degree that it is prohibited by law
  12. Marriage to some other person at the time of marriage to current spouse

A spouse requesting a divorce based on one of the above fault grounds must prove by a preponderance of the evidence that their spouse is guilty of such fault.  Adultery can be proven by circumstantial evidence.  If the divorcing spouse proves at trial that their spouse is guilty of one of the 12 fault grounds, then they will be granted a divorce without the consent of the other spouse.  In many cases, a party starts out filing for a fault divorce and, through later negotiations, ends up proceeding with a no fault divorce.

There are numerous factors to consider when determining whether to file for a fault or no fault divorce.  A no fault divorce will proceed quicker, but filing for a fault based divorce may provide you leverage in negotiating for aspects of the divorce that matter most to you, such as alimony or child custody.  The advice of a skilled divorce attorney is essential in determining what your best course of action may be.

Mississippi Divorce Attorney Matthew S. Poole Can Help

Matthew S. Poole has extensive experience representing spouses in both fault and no fault divorce cases.  With his expertise, you can rest assured that you are utilizing the best divorce method for your individual case.  Matthew is a skilled negotiator who will zealously argue on your behalf so that you achieve the best possible outcome from your divorce.  Call Matthew S. Poole today at (601) 573-7429 to schedule a consultation.

High Profile Divorces May Impact Mississippi Divorce Law

Wednesday, September 25th, 2013

Recently, it was announced that Shellie Zimmerman, wife of George Zimmerman who was recently acquitted of murder in the Trayvon Martin case, has filed for divorce.  The announcement came days after a domestic dispute between Shellie and George in which police and reporters arrived in droves to their Lake Mary home.  Shellie had called 911 stating that her husband had a gun and was behaving in a threatening manner.  Shellie later denied actually seeing the gun, but knew he had one because George always carries one on his person.  Police did not recover a gun, but found the iPad on which Shellie said she recorded the incident smashed to pieces.

Details are still unfolding in the Zimmerman dispute and the divorce is in its infancy stages, but the nation no doubt will anxiously following the story.  The Zimmerman divorce is just the most recent in a string of high profile divorces that have captured the attention of the nation.  The Murdoch divorce is another divorce making headline news.  Media mogul Rupurt Murdoch announced this past summer that he was divorcing his wife of 14 years, Wendi Deng.  In his divorce petition, Murdoch alleged the marriage had broken down irretrievably.  It appeared the marriage would proceed quickly, until Deng hired a new attorney who recently represented Christina Lurie, former wife Philadelphia Eagle’s owner, Jeffrey Laurie.  Ms. Laurie reportedly  obtained a favorable divorce settlement and remained part owner of the team.  News associations are conjecturing that Deng’s choice of new attorney means she is gearing up for a fight. While much of Murdoch’s fortunes are protected by pre-nuptial agreements, there are still several areas of the divorce for Deng to contest, such as custody of the couple’s two children, the couple’s Fifth Avenue penthouse, and ownership of the yacht the couple shared.

These high profile divorces highlight the special considerations that those who are in public eye must take when seeking a divorce.  If you are a celebrity, sport’s player, politician, or even local celebrity, the following are a list of things to consider when seeking your high profile divorce:

  1. Retain an experienced divorce attorney—this is by far the most important step in your divorce.  An experienced divorce attorney is essential for any spouse seeking a divorce, but it is especially important for those that may have a high profile divorce as often more assets are involved and additional issues such as dealing with the press will come into play.  A skilled divorce attorney will be able to negotiate for higher net worth settlements and handle the obtrusive press.
  2. Seek a mediation expert—private divorce mediation will keep all the details of your divorce away from prying eyes.  Divorce meditation is kept confidential and can be a means of avoiding the public courtroom.  It can also be your best bet for reaching a quick, favorable divorce settlement.
  3. Hire an asset protection expert—Mississippi is an equitable distribution state.  As a general rule, all property jointly owned will be subject to division during a divorce.  There is a caveat that each spouse may maintain his or her property for which he or she alone holds the title.  For high profile or high net worth couples, you need an attorney who has experience and the ability to analyze sizeable asset portfolios including real estate, stocks, business ownerships, and royalties.

While the fame and notoriety surrounding the Zimmermans and Rupurt Murdoch will likely continue to captivate the nation, Matthew S. Poole remains intrigued by even run of mill divorces.  Matthew is an experienced divorce attorney in Jackson MS who treats every client as if their divorce is one worthy of headline news.  Call Matthew today at (601) 573-7429 to begin your divorce the right way.

The End of Permanent Alimony in Mississippi?

Sunday, September 22nd, 2013

While half of all marriages today do not last until “death do us part,” the financial obligations of the breadwinning spouse continue long after the divorce is final and can in fact last a lifetime.  For the receiving spouse, permanent alimony can be a lifesaver, but for those obligated to pay, it can have a devastating financial impact.  Recently, however, states and legislatures across the nation have begun to re-evaluate the concept of permanent alimony.  More and more states are doing away with or severely limiting permanent alimony awards, and soon, it appears, permanent alimony may be a thing of the past.

What is permanent alimony?

Permanent alimony is a court ordered monetary sum paid by one spouse to the other at specific intervals, usually monthly.  Permanent alimony obligations continue until either: the judgment is modified; one spouse dies; or the receiving spouse remarries.

Why was it created?

Permanent alimony was developed in an era when most men were the primary breadwinner and most wives were homemakers.  Wives often had little to no education and had devoted much of their adult life to taking care of the home, while their husbands advanced the corporate ladder.  Therefore, when divorce occurred, the home-making wives were left with little to no means of supporting themselves and their children.  Meanwhile, the husbands suffered no ill effects and had the same if not superior earning potential than they did upon entering the marriage.  In this context, the concept of permanent alimony made perfect sense.

Why have courts stepped away from awards of permanent alimony?

Family norms have changed and divorce laws must adapt along with changing family dynamics.  Today, many women pursue higher education and work throughout marriage.  Some men, on the other hand, have taken on a stay at home role and their wives function as the primary breadwinner.  In many families, both parents work and realize their career potential during the marriage.  Both spouses are capable of supporting themselves and their children upon termination of the marriage, doing away with any need for permanent alimony.

Recognizing these shifting dynamics, states have increasingly opted to do away with or severely limit awards of permanent alimony.  Mississippi is one such state.  In Mississippi, alimony will only be awarded in marriages lasting ten years or longer.  Texas passed these same reforms.  Massachusetts, Rhode Island, and Utah are other states that have placed caps awards of permanent alimony, including limits on the length of time the breadwinning spouse can be forced to pay.

Factors for determining an award of permanent alimony

If you are a divorcing spouse in Mississippi who has been married for ten years or more, the following are a list of criteria that a court will look to in determining whether you should be awarded permanent alimony, and what the terms should be.  All courts will look at:

  • Each spouse’s income and expenses
  • Each spouse’s age, health, and earning potential
  • Each spouse’s needs, debts, and assets
  • Whether there are minor children in the home and childcare is needed
  • Standard of living during the marriage
  • Tax consequences of a alimony award
  • Fault or misconduct of a spouse
  • Wasteful dissipation of assets by a spouse

A court will weigh all of the above factors in determining a potential alimony award.  In addition to permanent alimony, courts can also award rehabilitative and reimbursement alimony.  Rehabilitative alimony is temporary alimony awarded to assist a divorcing spouse in re-entering the workforce.  Reimbursement alimony is designed to reimburse a spouse who made financial contributions during the marriage that enhanced the earning capacity of the other spouse.

Matthew S. Poole is a skilled, compassionate divorce attorney in Jackson Mississippi with experience seeking all means of alimony awards.  He will zealously fight for you to obtain the alimony award to which you are entitled.  Call Matthew today at (601) 573-7429 to schedule a consultation.

The Top Things to Know Before Filing for Divorce in Mississippi

Wednesday, September 18th, 2013

You meet, fall in love, say “I do,” and hope your perfect life with someone will last forever.  You never anticipate being one of those couples to end up divorced.  But sadly, half of all marriages in the U.S. today will end in divorce.  If you are among that half, you are likely hurt, afraid, and daunted by the prospect of filing for divorce.  To this end, we have prepared the following list of things that you should know before filing for divorce.

  1. There is no winner in a divorce—many people go into a divorce hoping to “win” and beat their spouse, but the reality is divorce has no real winner.  Divorce involves a variety of issues such as child support, custody, alimony, and division of property.  Generally, divorcing spouses will not get everything they may want.  However, with the help of an experienced divorce attorney, you may end up with that which you care most about, be it a favorable child custody arrangement or continued use of the marital home, among other things.
  2. Make sure you meet your state’s residency and/or waiting period requirements—every state will have its own residency requirements and some have waiting period requirements, in which you must be legally separated before filing for divorce unless you meet some other condition.  It is best to consult with a knowledgeable divorce attorney in your area.  In Mississippi, for instance, one of the divorcing spouses must reside in the state of Mississippi for at least six months before filing for divorce.   A no-fault divorce may be initiated in the county where either party resides; however, a fault divorce must take place in the county in which the plaintiff (the party seeking divorce) resides if the defendant lives outside the state or cannot be located.  Further, for a no-fault divorce in Mississippi, there is a 60 day waiting period before the divorce can be granted. There is no such waiting period for a fault divorce.  A fault divorce is a divorce in which the spouse filing for divorce alleges any number of fault grounds, such as: adultery; custody in the Mississippi Department of Corrections; insanity; wife’s pregnancy by a different person at time of marriage where the husband was unaware; natural impotency; desertion; habitual drunkenness or drug use; and cruel or inhumane treatment.
  3. Divorce can be costly, but does not have to be—research reveals that the number one question spouses contemplating divorce have is what will their divorce cost.  The cost of the average U.S. divorce is $15,000.  While this sum might seem daunting, it is far less than the true cost of staying in an unhappy marriage.  Further, divorce does not have to cost this much.  With a divorce attorney experienced in mediation, you may be able to settle many issues outside of the courtroom, saving much time and expense.
  4. An experienced divorce attorney is essential—oftentimes, divorcing spouses may feel their divorce will be simple and there are too few assets involved to require hiring a divorce attorney.  This can be a costly mistake and one that causes much frustration for the divorcing spouse.  All too often, that seemingly simple divorce turns into a nasty battle between spouses over custody, division of property, or alimony.  An experienced divorce attorney zealously argue on your behalf so that you receive the best possible legal outcome.  A divorce attorney will know just what assets you have a claim to, how to get you that perfect custody arrangement, and whether or not you are entitled to alimony.

Matthew S. Poole is an experienced, compassionate Mississippi divorce lawyer who will work tirelessly to ensure his clients receive the best possible outcome from their divorce.  Matthew Poole has extensive knowledge of local divorce laws and experience mediating between divorcing spouses.  Call Matthew Poole today at (601) 573-7429 to schedule a consultation.

Why You Should Think Twice Before Filing for Divorce without an Attorney

Sunday, September 15th, 2013

In the state of Mississippi, you are not legally required to obtain the representation of an attorney in order to file for divorce.  Given today’s economy, many spouses have therefore elected to file for divorce sans attorney.  However, the decision to file on your own may cost you far more in the long run that what you saved initially.  The following is a list of reasons why you would be wise to think twice before filing for divorce with consulting with a knowledgeable divorce attorney in your state.

  1. A divorce attorney knows the steps—there are two methods of divorce in Mississippi, no-fault or divorce by agreement and fault based.  The two methods require different filings and have different time frames.  An experienced divorce attorney knows what forms need to be submitted, what evidence must be gathered, and how long the divorce will take.  Without the expertise of a divorce attorney, you may end up filing wrong documents or missing important deadlines that can cost you in the long run.
  2. A divorce attorney knows what type of divorce you should file for—as mentioned above, there are two different methods of divorce in our state.  To file for a no-fault divorce, parties must agree to the divorce.  They must then either agree to all the terms of the divorce or there will have to be a trial on the irreconcilable differences.  To file for a fault based divorce, a spouse must prove their soon to be ex spouse is guilty of one of the 12 enumerated fault grounds by a preponderance of the evidence.  There are advantages and disadvantages to both methods of divorce.  Only an experienced divorce attorney examine the facts of your particular case and advise you as to what method will achieve the best results for you.
  3. You may have to go to trial—if you proceed with a fault based divorce, or a no fault divorce in which you have not agreed to all the terms of the divorce, you may have to go to trial.  Trial will involve introducing evidence, making opening statements, and cross-examining hostile witnesses.  You will need to know the rules of evidence and the various hearsay exceptions.  Without the assistance of a skilled divorce attorney, you may be unable to fully present your case which can have devastating results.  The American Bar Association Coalition for Justice surveyed a group of judges who stated that self-represented litigants generally did a poor job representing themselves and caused a burden to the court.  Self-representation often results in un-favorable results.  Your short-term savings may cost you in the long run if you elect to proceed pro-se.
  4. A divorce attorney can be your best negotiator—during a divorce, tensions are often high between the divorcing spouses.  A good divorce attorney with experience in negotiations can be the cool voice of reason between warring spouses.  A divorce attorney can often guide the parties towards a favorable agreement that will eliminate hours of court time and frustration.
  5. A divorce attorney knows the law—this might sound obvious but it is one of the most important factors in any divorce.  The laws concerning child custody, alimony, child support, and division of assets are complex and laden with technical details that a layperson is simply not going to understand.  An experienced divorce attorney knows the ins and outs of divorce laws, and is apprised of the most recent case decisions that may impact your divorce.  A knowledgeable divorce attorney is your absolute best means of obtaining the most favorable outcome from your divorce.

Matthew S. Poole is a Mississippi divorce lawyer with years of experience in the industry.  He will fight zealously on your behalf to ensure the best possible outcome.  Call Matthew today at (601) 573-7429 to schedule a consultation.

Mississippi Divorce Attorney Explains the 5 Things Not To Do When You Divorce

Friday, September 13th, 2013

You’ve probably read all the things you should do in preparing for a divorce, like consulting with a divorce attorney, making a list of assets, and budgeting for divorce expenses.  The following, however, is a list of the opposite kind—it is a list of the top things you should never do when you are divorcing your spouse.  This list encompasses behaviors that can later damage your divorce case and possibly result in a less favorable settlement.  So be aware of the following list of don’ts:

  1. Don’t represent yourself—seeking a divorce without the assistance of an experienced divorce attorney can cost you significantly in the long run.  A skilled divorce attorney will guide you through all steps of your divorce and assure you receive the best possible outcome.  A knowledgeable divorce attorney will prove invaluable in negotiating for division of assets, child custody, and alimony.  Consult with a licensed divorce attorney in your state before filing for divorce.
  2. Don’t refuse to negotiate—divorces are mixed with emotions and often anger.  Spouses may refuse to negotiate due to bitterness and hurt feelings.  However, it is in your best interest to negotiate with your soon to be ex spouse.  In Mississippi, both spouses must agree to a divorce if you are to proceed with a no fault divorce.  A no fault divorce is often quicker and less costly then a fault based one.  Negotiating with your spouse to obtain his or her consent can greatly benefit you both in the long run.  Further, negotiation over important issues like property division, child custody, and alimony can spare you the time, expense, and stress of the courtroom.  Negotiation is in your best interest when you are in the middle of a divorce, and the help of an experienced divorce attorney can greatly assist the negotiation process.
  3. Don’t move out of the marital home—before filing for divorce, one spouse will often move out of the marital home.  This is not something you should do before consulting with a divorce attorney in your state as it can impact your later claim to the home.  Consult with an attorney before making any moves.
  4. Watch what you post on social media sites—with the advent of Facebook and other social media websites, divorce has become less public.  Spouses and attorneys across the nation have begun utilizing “posts” made by divorcing spouses as evidence against them.  Pictures of spouse’s gallivanting with members of the opposite sex, drinking, or even bragging about malicious acts towards the other spouse, can all commonly be found on social media websites.  Be very careful what you allow others to see online as it can have consequences on your divorce.
  5. Don’t deny your spouse access to the children—in general, it is not a good idea to deny your spouse access to your child/children unless there is good reason to do so and your licensed divorce attorney has instructed you to do so.  Except in isolated instances of domestic violence or abuse, it is not wise to withhold access to your children because it can later be grounds for allegations of withholding affection.  Withholding the affection of your minor children from their mother or father is a factor courts consider in making child custody determinations and not something you want to be accused out.  Your best bet is to consult with a knowledgeable divorce attorney before the divorce is imminent and obtain their advice on working out a temporary custody agreement that the court will approve.

For more information on what you should and should not do when preparing for divorce, call The Law Office of Matthew S. Poole.  Matthew S. Poole has worked with thousands of clients who have made the difficult decision to divorce their spouse.  He can advise you on all aspects of your Mississippi divorce, from filing for divorce to reaching a favorable alimony settlement.  Call Mississippi divorce attorney Matthew Poole today at (601) 573-7429 to schedule a consultation.

Who Gets Fido? A Look at Pet Custody in Mississippi

Tuesday, September 10th, 2013

Bill and Susie met their family dog Jasper when they were just newlyweds.  Fresh from their honeymoon, Jasper wondered into their yard searching for scraps.  He soon became their loving, cherished pet.  When Bill and Susie’s relationship later deteriorated, and the threat of divorce became a reality, each made it very clear they wanted custody of Jasper.

Bill and Susie became entrenched in an increasingly common phenomenon—a pet custody battle.  Surveys show that over 70% of U.S. households contain at least one pet.  More than ever before, American families have come to view their pets as essential members of the family.  When spouses decide to divorce, many are left grappling with the issue of who should get the family pet.

So what should you do if you are or may become entrenched in a pet custody battle?  The following are a list of pointers:

  1. Consult with a local divorce attorney—the first step you should always take is to consult with a skilled divorce attorney in your state.  Pet custody is a fairly new issue that courts are still struggling to deal with.  A knowledgeable divorce attorney will often have experience with pet custody fights and will be able to advise you as to the best course of action.  Because pets are traditionally considered “property” in the eyes of the law, you will need the assistance of a savvy divorce attorney to ensure your pet custody dispute receives the attention it deserves.
  2. Gather documents to prove ownership– in many states, including Mississippi, pets are considered property.  Therefore, if you can show that you purchased your pet or adopted him/her, it may go a long way towards being awarded possession of your pet.
  3. Gather evidence you were the primary caregiver—if, like Bill and Susie, you cannot show ownership or you were not in fact the spouse to acquire the pet, do not despair.  Another method that has proven successful in court is showing that you were the primary caregiver of your pet.  This can include things like statements from neighbors who saw you consistently walking your dog, receipts showing you purchased your cat’s food, vet bills showing you brought in your ferret, etc.
  4. Start to negotiate—one of the best means to avoid the court room and ensure the outcome you desire is to negotiate with your spouse as to the custody of your pet.  Often the assistance of a divorce attorney with negotiation experience will be your best bet towards achieving success.  In negotiating with your spouse to receive custody of your pet, you could consider splitting up pets in multiple pet households, keeping the pet with your child, or even some sort of joint custody arrangement so you both maintain contact with your pet.  An experience divorce attorney with experience thinking outside the box can work with you and your spouse to create an arrangement that everyone, including your pet, is happy with.

Pet custody is a fairly novel issue for Mississippi courts.  While pets have been traditionally considered property, more and more courts are open to viewing pets more like family members than pieces of property.  In the case of Bill and Susie, they were able to agree that Susie would keep Jasper during the year and Bill would take him during the summers.  This arrangement suited both, as Susie worked fewer hours and could be home with the dog, while Bill’s workload lessened in the summer, freeing him to spend time with Jasper.

If you are considering divorce and anticipate their might disagreement over the custody of your pet, Matthew S. Poole can help.  Matthew is a skilled, compassionate Mississippi divorce attorney with experience in creative problem solving.  Call Matthew today at (601) 573-7429 to schedule a consultation.

Do Stepparents Have any Custody Rights Following a Divorce in Mississippi?

Saturday, September 7th, 2013

Although being a stepparent can be a confusing and difficult job in many cases, there are just as many cases in which the biological parent becomes a true parent in every sense of the word. When a divorce occurs, it can be wrenching for the stepparent who suddenly has no rights as well as for the child. In most states, including Mississippi, stepparents do not have custody rights unless a biological parent is considered unfit or voluntarily relinquishes his or her parental rights so the stepparent is able to adopt the child following the divorce. Legal custody rights and responsibilities rarely extend to stepparents although in many cases stepparents are the primary caretaker of the child or children.

Consider the case of a woman with an 18-month old child who remarries. The new wife raises the child, essentially becoming a parent. A decade later, the couple decides to divorce, and suddenly the woman who has been a mother in every way to the child has no rights to custody whatsoever. Not only is this hard on the stepparent who loves the child, it is hard on the child to suddenly have a primary caregiver in his or her life cut out like she never existed. While the courts are beginning to recognize the importance of the role stepparents have played in children’s lives, the laws are slow to catch up.

In some cases a stepparent who has acted as the parent of a child for a significant period of time may be awarded visitation rights although it is likely the stepparent will have to fight for those rights. The courts must believe this visitation is in the best interests of the child, and it will fall to the stepparent to prove that. The longer the relationship with the child, the more likely the courts will grant some form of visitation rights to the stepparent.

The Child’s Best Interests

Courts are routinely charged with determining what is in the best interests of the child; when the bond between the stepparent and child is apparent, and it is clear the child looks at the stepparent in the same way as the biological parent, then visitation rights are possible. Before this can occur, the stepparent must establish standing—the right of a party to be heard. This standing will be largely determined by the prior level of participation in the child’s life.  If the biological parent does not agree that a continuing relationship is in the child’s best interests, a guardian ad litem may be appointed.

The guardian ad litem will look at all the circumstances surrounding the relationship, meeting with the child, the biological parent and the stepparent before making a recommendation to the court. Teachers, neighbors and friends could be interviewed as well—anyone who has some type of personal insight into the relationship between the stepparent and the child. Biological parents need to at least try to put their personal issues aside and truly consider what is best for the child. If the child has enjoyed a lengthy, warm, loving relationship with the stepparent, it could hardly be a positive move to abruptly take that away no matter how awkward the situation might be.

Rights and Responsibilities

Although the stepparent may be granted certain rights following a divorce, those rights may also bring responsibilities—the same responsibilities a biological parent would fall under. The stepparent who receives visitation rights or some form of custody could be held responsible for child support, depending on the specific circumstances. At present, nearly half the states have implemented laws which authorize visitation for stepparents and ten more have granted stepparents the right to seek visitation. Thirteen states grant any interested third party the right to request visitation, including grandparents, other family members or stepparents. Only four states give no rights to stepparents regarding visitation.

When You Need Legal Custody Assistance, Call the Law Offices of Matthew Poole

Stepparents need assistance when seeking visitation rights and Matthew S. Poole has the experience in all types of custody to do just that. Matthew Poole makes a commitment to each and every client to work hard to get that client what they need and deserve whether it is a divorce case or a child custody case. Matthew truly understands the intricacies of many issues related to family law as well as the emotions involved as he is a single dad of young son. In an ongoing effort to provide the very best legal help for his clients, Matthew Poole deliberately keeps a lighter caseload. Call (601) 573-7429 to set up an appointment to discuss your individual circumstances.

Does Marital Misconduct Really Alter the Outcome of a Divorce in Mississippi?

Friday, September 6th, 2013

Despite the fact that all states have now implemented the “no-fault” divorce, this does not mean that spouses engaging in marital misconduct in Mississippi won’t have to answer for that misbehavior in some way. Particularly regarding division of property, awards of spousal support or awards of attorney’s fees, the “victim” spouse may have a real advantage over the spouse accused of misconduct. By its very definition, “marital misconduct” must cover behaviors which took place before the marriage ended and the misconduct must have resulted in one spouse suffering considerable financial, emotional or physical burden.

Defining Marital Misconduct

Most of us limit our thinking of marital misconduct to adultery however the state of Mississippi offers twelve grounds for seeking a fault-based divorce, some of which can absolutely affect the outcome of the divorce.

These grounds include:

  • Natural impotency—while seldom used as a ground for divorce, past cases suggest the impotency must be an inability to engage in sex which is not curable and does not include the inability to procreate.
  • Spouse incarcerated—a divorce may be granted to anyone whose spouse is currently incarcerated or has been sentenced to a jail or prison term.
  • Even a single act of adultery is grounds for a fault-based divorce in Mississippi however that adultery must be able to be clearly established in court. The admission by the spouse, the testimony of the lover, audio or video recordings, testimony of a private investigator, friend or family or photos can be used to establish adultery. Circumstantial evidence such as giving or receiving gifts from a suspected lover, frequent phone calls, text messages, e-mails or any other secretive behavior may also suffice in establishing the presence of adultery.
  • Desertion—when the spouse has disappeared for at least a year with no contact.
  • Habitual drug use which renders the spouse addicted to the drug and unable to control his or her use.
  • Habitual drunkenness which has an adverse effect on the marriage.
  • Habitual cruel and inhumane treatment—one of the most commonly alleged, yet perhaps the toughest to prove.
  • Insanity at the time of marriage without the other spouse’s knowledge.
  • Bigamy
  • Pregnancy of the wife at the time of the marriage—unless the husband was aware of the pregnancy. If the husband is aware of the pregnancy then later the baby is not his biological child, he may not claim pregnancy of the wife at the time of marriage as fault-based grounds for divorce.
  • Kinship within the prohibited degree—a relationship designated by Mississippi law as incestuous is grounds for divorce.
  • Incurable insanity—once a spouse has been committed in a mental institution for a period of three or more years, the other spouse may obtain a divorce based on the incurable insanity grounds.

Compensation Rather than Punishment

While not specifically meant to punish the “offender” in the marriage, financial compensation is intended to compensate the “victim.” Some of the grounds for divorce might have little effect on the outcome of the divorce, but others could have significant effect. Economic fault, while not offered as Mississippi grounds for divorce, may be considered in the final distribution of assets. Economic fault can include dissipation of assets, hiding assets, diverting marital assets to pay for an addition or extramarital relationship, excessive spending, destruction of property, the fraudulent conveyance of property or any other type of conduct which prevents the courts from determining an equitable division of property.

This means that while adultery in and of itself will not affect the asset distribution, if the spouse committing the adultery spent an undue amount of marital assets on the affair, then the other spouse may be entitled to compensation. Similarly, the spouse who has a drinking, drug or gambling problem may not automatically entitle the other spouse to a bigger piece of the marital pie. If those behaviors resulted in excessive or abnormal spending, hiding assets, dissipating assets or diverting marital income to pay for the habits, then compensation for the victim-spouse is likely. Courts are likely to give more weight to certain types of misconduct over others; since economic fault, adultery and addiction can all have significant impact on the couple’s marital assets, these areas of misconduct may actually be given more weight than cruelty or domestic violence, simply because they exerted a more direct influence on assets.

Call The Law Offices of Matthew S. Poole for the Help You Need

Those who believe marital misconduct occurred during their marriage and that the marital misconduct directly impacted marital assets should discuss those issues thoroughly with a qualified divorce attorney.  Matthew S. Poole has years of experience helping those in the middle of a difficult divorce. Matthew Poole will listen to your concerns and offer solid advice on whether alleging marital misconduct in your divorce is to your benefit. All the evidence will be assessed and, after hearing your feelings about the misconduct, the best options will be offered. We understand how difficult divorce is and will do everything in our power to make the process less stressful. Call (601) 573-7429 to set up an appointment to discuss your individual circumstances.