Archive for November, 2013

Child Custody and Siblings: Is Splitting Up Siblings Ever the Best Answer?

Friday, November 29th, 2013

Custody disputes in Mississippi are often emotion filled and difficult.  Two parents who both love their children are put in the unenviable position of battling amongst each other for custody of their children.  Custody disputes are never easy, whether one child is involved or four, but for multi-children households, the issue arises: is it ever best to split up siblings?

The Mississippi Supreme Court expressed in the case Sellers v. Sellers, 638 So.2d 481 (Miss. 1994), that there is a strong preference for keeping siblings together.  Separating siblings should only be done where unusual circumstances justify it.  In Sootin v. Sootin, 737 So.2d 1022 (Miss. Ct. App. 1998), 1998 decision coming out of the Mississippi Court of Appeals, the court overturned an order separating two sisters, ages eleven and twelve, finding that one daughter’s slightly greater attachment to her mother did not justify separation.

However, the preference for keeping siblings together can be overridden if doing so would place a child in adverse or dangerous circumstances.  In the sad case of Carson v. Natchez Children’s Home, 580 So.2d 1248 (Miss. 1991), the court found no error in separating siblings where both had been sexually abused and acted out sexually together.

For all child custody determinations a Mississippi court will ultimately use the best interests and welfare of the child standard.  In making a best interest determination, the court will look to numerous factors including:

  1. The age, health, and sex of the child
  2. Which parent has had continuing care of the child before the separation
  3. Parenting skills of the parent
  4. Employment responsibilities
  5. Physical and mental health of the parents
  6. Emotional ties of the parent and child
  7. The preference of a child over the age of 12
  8. The parent’s moral fitness
  9. Stability of the home environment
  10. Child’s home and school record
  11. The parent’s willingness and ability to provide primary child care
  12. Any other relevant factors

The court will apply these factors and determine what custody arrangement is in the best interest of each child individually. Accordingly, it is feasible that what is best for one child is not best for all.  A court could find that one sibling would be best situated with his or her father, for instance, where the child is more strongly bonded, goes to school in the district where the father lives, and expresses a desire to remain with the father.  Whereas the other siblings might not yet be school age, have a preference for the mother, and the mother has been the primary child care giver.  In a situation such as this, it is not inconceivable that the court would split the siblings, despite the strong preference for keeping siblings together, because the unusual situation dictates such.

In most situations, keeping siblings together is the best course of action.  The bond between siblings is very strong and the courts recognize this.  However, in rare instances, splitting up siblings may be the best interest of each child involved.  If you feel your children may benefit from being split, a knowledgeable child custody attorney can examine the facts of your case and determine whether this may be a viable option for your family.

Matthew S. Poole is a Mississippi child custody attorney who has tackled even the most difficult of child custody cases, often breaching novel issues and managing tough situations.  If you have a complex child custody case, contact The Law Office of Matthew S. Poole today at (601) 573-7429 for a free case analysis.

Cohabitation “Divorce” in Mississippi

Tuesday, November 26th, 2013

Today, more and more U.S. couples are living together before, or instead of, getting married.  Cohabitation has become the new “norm” with nearly half of all women reporting that their “first union” was cohabitating with their male partner.  Cohabitating has become a modern day phenomenon, with an ever increasing number of couples electing to move in with one another instead of marry.

Recent data suggests that cohabitating couples face the same challenges as married ones.  A new study shows that the average length of cohabitation relationships is 22 months.  Within three years of cohabitating, 27% of couples broke up, while 40% married and another 32% remained living with one another.  Children are often added to these unions, with 19% of women giving birth within the first year of cohabitation.  Sadly, over 75% of children born to unwed couples do not live with both parents by their 15th birthday.

 The termination of a cohabitation relationship, which now often involves the accumulation of joint property, debts, and children, has become more akin to a divorce than a simple break up.  Here is a look at some legal issues concerning cohabitation “divorces”:

  1. Mississippi’s divorce laws will not apply for cohabitating couples who separate—many states used to recognize “common law marriage,” wherein couples were regarded as married when they lived together, shared property, and considered themselves husband and wife.  However, Mississippi, along with many other states, no longer recognizes common law marriage.  Accordingly, divorce laws will not apply to cohabitating break ups.
  2. Each partner is presumed to own his or her property and debts—just like married couples, property acquired individually before the relationship started is presumed to be independently owned.  Unlike married couples, however, property acquired during the cohabitating relationship is also presumed to be individually owned, unless circumstances indicate otherwise.  Therefore, if one partner buys a home during the relationship with her separate funds and her name only on the title, that home will belong to this partner alone.  Contrast this to a married woman whose husband, even if she purchased the home with her own monies, would be presumed to own half the property as it was acquired during the marriage.
  3. Deliberately combining asset or signing an agreement to share assets can overcome the presumption of separate property—by taking actions like opening joint bank accounts, purchasing a home in both your names, or signing a written contract to share assets, a cohabitating couple can overcome the presumption that their property is independently owned.
  4. For shared assets, 50/50 ownership is presumed—if an unmarried couple jointly owns assets, the law presumes they own them 50/50 unless they could show otherwise; say, if one partner made a greater contribution toward the purchase.
  5. Child support and child custody issues are handled in substantially the same manner—for children born of the relationship, child support and child custody are subject to the same laws as for any married couple.  The cohabitating couple typically has a chance to decide these issues outside of court, but may wind up in court if they are unable to reach an agreement.
  6. Generally, you will not be entitled to alimony following a break up—even if you were dependent upon the other partner during the relationship, you will not typically be able to receive any sort of alimony type support.
  7. Division of assets will be handled like a business arrangement—you will not go before a family court judge; rather, if the court becomes involved in the division of a cohabitating couple’s assets and debts, it will be handled in the business section of court.
  8. A living together agreement can protect your rights—a written living together agreement will set out the division of your assets and debts in the event of a break up.  This can greatly assist cohabitating couples and prevent the need for court involvement in the event of a break up.

Matthew S. Poole has substantial experience advising cohabitating couples on their legal rights and responsibilities.  Call The Law Office of Matthew S. Poole today at (601) 573-7429 for a free initial consultation.  

Why You Should Avoid Dating During Mississippi Divorce

Monday, November 25th, 2013

Many divorcing spouses are eager to re-enter the dating world.  Often, one’s marriage has been effectively “over” long before the divorce papers were signed.  Given the emotional toll of divorce and its isolating effect, it is natural that some soon to be divorcees desire to re-enter the dating world as soon as possible.  However, dating before your divorce is final can be dangerous to your case, as well as to you and your family.  Here is a list of reasons why you should avoid the temptation to date before you are completely divorced:

  1. Dating can negatively impact your spousal support and property division – dating could impact your divorce in a few ways, including financially.  If you plan to move in with your new partner, it can impact your receipt of spousal support and even property division.  Further, dating while still married is a form of adultery in Mississippi and can be grounds for fault based divorce.  You do not want to give your partner the ability to use this fault ground against you.
  2. Dating can negatively impact child custody – dating can become a factor in child custody determinations.  A court looks to a parent’s “moral fitness” in determining the best interests of the child for custody decisions, and dating while still wed, even if the marriage feels over for you, can have negative implications.  Further, courts will want to address whether the new partner is being left alone with the children or spending a significant amount of time with them.  If your new love interest has a criminal record or somewhat unsavory character, you could lose time or even custody of your children due to dating this individual.  Generally speaking, for a child custody determination, dating is not going to be positively viewed in court.
  3. Dating can lead to jealousy, anger, and in turn less cooperation from your spouse or even retaliation – uncovering your soon to be ex-spouse is dating another individual before the divorce is even final can naturally lead to feelings of anger and jealously.  When you are trying to negotiate a favorable divorce settlement, these are not the emotions you wish to evoke in your former spouse.  Dating while divorcing may cause a breakdown in negotiations or revocation of a previously reached agreement.  It may even cause your spouse to act irrationally, seeking retaliation.  Possible retaliatory acts could include requesting sole custody, fighting against an alimony obligation, or reneging on a previously reached property settlement agreement.
  4. It can harm you emotionally – you are just leaving a marriage and emotions are undoubtedly high.  Divorce is a psychologically traumatic event for anyone to experience.  Starting a new relationship before you have completed your divorce and been single for awhile can be emotionally damaging for you, as well as for your new partner.
  5. Your children may suffer – there is no way around it, divorce is hard on children.  Children are often trapped in the middle of a divorce, feeling like their family is being broken apart.  This is a time when your children need all the focus and attention you can muster.  Adding another individual to the mix at this crucial time in a child’s life is generally not in their best interest.

Matthew S. Poole is a compassionate Jackson MS divorce attorney who understands your desire to re-enter the dating world.  Matthew has extensive experience advising divorcing couples on the do’s and don’ts of divorce, and will ensure you do not inadvertently harm your divorce case through dating or any other actions.  Call The Law Office of Matthew S. Poole today at (601) 573-7429 to schedule a free case analysis.

Domestic Violence and Mississippi Divorce Cases

Saturday, November 23rd, 2013

Domestic violence occurs at alarming rates throughout Mississippi and the U.S.  The American Bar Association Commission on Domestic Violence reports that over one million women suffer non-fatal violence by a person with whom they are intimate each and every year.  While both men and women can be victims of domestic violence, statistically women are more often perpetuated violence against.  For spouses in an abusive relationship, the most dangerous time is in the few weeks preceding and few weeks after a divorce.

Spouses are often not the only victims of domestic violence—child abuse often goes hand in hand with spousal abuse.  Between 3.3 and 10 million children witness the abuse of a parent each year, and in 30 to 60 percent of families experiencing domestic violence, there are both adult and child victims.  The impact of domestic violence on children is alarming, with study after study linking such traumatic events to behavioral, social, emotional, cognitive, and physical health problems.

If you are caught in a domestic violence situation and considering divorce, it is important to know the following:

  1. Help is available—preparing and filing for divorce is the most dangerous time for your safety and that of your children.  Do not take this risk alone.  There are numerous domestic violence shelters throughout the state of Mississippi that can offer you protection during this critical time.  Shelters can ensure your safety, allowing you to pursue the divorce you so require.  Further, a divorce attorney with experience in domestic violence issues can be a tremendous asset.  Your divorce attorney may elect to seek a protective order against your spouse.  A protective order can issue against a spouse in the event of domestic violence if the violence occurring meets the definition of abuse set out in MS Code § 93-21-3(a).  A protective order can provide you with a legal remedy to protect yourself before the divorce even begins and throughout it.  It can also serve as evidence of abuse in a divorce.
  2. Domestic violence can be grounds for divorce– it is important to recognize that domestic violence can be a ground for divorce in Mississippi.  Mississippi has both fault and no-fault grounds for divorce, but no-fault divorce is only an option where both parties agree to the divorce.  In an abusive relationship where one spouse likely does not wish to terminate the marriage, the victim spouse may assert the fault based ground of habitual cruel and inhumane treatment.
  3. Domestic violence can prevent an award of child custody—in Mississippi, there is a presumption against awarding custody to a parent with a history of domestic or family violence.  Therefore, while ordinarily there is a presumption in favor of joint custody, this will not apply in situations of domestic violence.  The presumption against custody with the abusive spouse is rebuttable.  The spouse will have an opportunity to show the court the presumption should not apply.
  4. Documentation is important—whether you may seek a protective order, allege domestic violence as a grounds for divorce, or as a grounds for sole custody, it is important that you have documentation of the abuse whenever possible.  The best documentation comes from police and incident reports made after the abuse occurred.  Other evidence could include pictures of physical harms following abuse, psychologist reports, or the testimony of friends, family, and neighbors.  Many abuse victims do not report instances of abuse for fear of retaliation by the abusive spouse.  The absence of police reports does not invalidate your valid divorce grounds.  An experienced divorce attorney can advise you on how to best present your case in court.

Jackson, MS attorney Matthew S. Poole has helped many victims of domestic violence successfully and safely navigate the divorce process.  If you are considering divorce and have questions concerning domestic violence, call The Law Office of Matthew S. Poole today at (601) 573-7429 for a free consultation.

Legalizing Same-Sex Marriage: Will Mississippi Join the Movement?

Monday, November 18th, 2013

The Supreme Court’s momentous decision to overturn the Defense of Marriage Act seemed to open the floodgates on the push for marriage equality.  Currently, fourteen states plus the District of Columbia have legalized same-sex marriage.  Some of these legalizations are quite recent, with Minnesota and Rhode Island becoming the 12th and 13th states to legalize gay marriage in August, and New Jersey just a few months later, in October.  Illinois will become the 15th state by November 20th, if all goes as planned, and Hawaii may join the list any day now.  Additionally, New Mexico, which is the only state to have no laws either allowing or banning same-sex marriage, may soon legalize same-sex marriage.

Suffice to say, the list of states abolishing previous bans on same-sex marriage and legalizing the institution is growing by the day.  While the tides of change seem to be sweeping much of the nation, there has been little talk of legalizing same-sex marriage in Mississippi.  The recent case of Lauren Beth Czekala-Chatham, who is married to a same-sex partner and seeking a divorce in Mississippi, brought the issue of same-sex divorce to the front of the headlines in our state.  However, Czekala-Chatham and her attorney were quick to assure the court and the public that they were not seeking to advance gay marriage in the state, merely to be able to divorce.

Nearly 10 years ago, in 2004, Mississippi voters passed a ban on same-sex marriages.  At the time, 85% of voters supported the ban.  Recent polling, however, reveals that attitudes in the state are changing.  New bipartisan polling from the Human Rights Campaign found that 58% of Mississippi residents under the age of 30 favor gay marriage.  In the above 30 crowd, 55% objected to same-sex marriage.  While the public opinion does not seem to be strong enough yet to persuade legislative action, it is clear views are shifting.

Recently, the Southern Equality campaign swung through the state.  Several same-sex couples attempted to obtain marriage licenses, including an Air Force Reserve member, and were turned away.  Showing its continued support for the gay marriage ban, Mississippi declined to grant full benefits to troops in same-sex marriages.  Due to the constitutional ban, Mississippi stated that same-sex spouses could apply for benefits on federally owned property but not property owned by the state.  This decision is in defiance of a Defense Department directive granting full benefits to same-sex marriage spouses of troops.

Advocates of same-sex marriage are hard at work bringing change to the state.  The Human Rights Campaign president, Chad Griffin, expressed optimism that Mississippi and the rest of the deep South would change their laws to legalize the same-sex marriage institution.  Griffin stated that numerous cases were being filed, and many already filed, since the Supreme Court’s decision in United States v. Windsor, the precedent setting DOMA case, challenging Mississippi’s constitutional ban on gay marriage.

There are three ways that same-sex marriage could become legal in Mississippi.  The first would be through judicial action, which is what Griffin alluded to fighting for.  Next would be by constitutional amendment.  Just as the state voted to add the ban in 2004, an amendment could be placed on the ballot requesting appeal of the ban.  Finally, the legislature could pass a same-sex marriage amendment.

All things considered, it appears Mississippi may not join the ranks of gay marriage friendly states anytime too soon.  While polling numbers reveal a shift in attitudes, they do not show enough support passage of a constitutional amendment.  However, it seems like that if public opinion continues to swell in favor of same-sex marriage, Mississippi will eventually accept the institution.

Call For Your Free Initial Consultation

If you have any questions about same-sex marriage or same-sex divorce in Mississippi, call The Law Office of Matthew S. Poole today at (601) 573-7429.   He will take the time you need to advise you of your legal rights and options, and help you determine the best course of action in your case.

The Dangers of Do-It-Yourself Divorces in Mississippi

Tuesday, November 12th, 2013

Given the shaky economy and seemingly ever rising expense of obtaining a divorce, more and more individuals are electing to divorce without the assistance of an attorney.  These do-it-yourselfers feel that by divorcing on their own, they will save substantial money in the process.  What they fail to recognize, however, is the potential long-term financial costs of foregoing an attorney, and the probable negative impact the absence of a lawyer can have on the entire divorce process.

The following list is designed to caution you before electing to proceed with a divorce pro se, or without an attorney:

  1. Divorces are never as “simple” as they appear to be: you may feel that because you and your spouse agree to the terms of your divorce, your divorce will be quick, simple, and painless.  After all, forms exist online that purport to provide you with all you need to obtain a divorce.  However, as any experienced divorce attorney will tell you, no divorce is as simple as it appears.  The agreement you and your spouse thought you reached often falls apart and you end up in tense negotiations with no end in sight.  You become overwhelmed with the myriad of court forms required and strict time deadlines for each.  You consent to something only to realize later it had negative tax implications you were unaware of.  This list goes on and on.  Divorce is nearly always a complicated process and even the “simplest” of divorces can be quite confusing and time consuming.  A knowledgeable divorce attorney can guide negotiations and handle all the filing of the many required forms, while ensuring deadlines are met and proper disclosures made.  A divorce attorney takes out the guess work and the stress for the layperson unfamiliar with intricate divorce law.
  2. You can cost yourself in the long-run: while foregoing a divorce attorney might appear to be an effective cost-saving method, this decision can cost you far more in the long-run then the initial savings.  Without the assistance of a divorce attorney, you may end up settling for far less than you deserve, waiving your right to alimony or property to which you are entitled.  Missing crucial deadlines or failing to provide requisite information can lengthen the divorce process, costing you more.  A skilled divorce attorney knows just what assets you may be entitled to and what debts you must shoulder.  Your divorce attorney will negotiate or, if necessary, argue in court on your behalf to ensure you reserve the monies and property to which you are entitled.  A layperson without knowledge of intricate alimony, child support, and property division laws is unlikely to be in the position to obtain the best outcome possible.
  3. Mistakes are often irreversible: often, in the legal world, mistakes cannot be undone.  If you miss a crucial deadline, your rights maybe waived.  If you agree to a settlement negotiation which the court accepts, you will not be able to later undo the agreement if you come to realize a mistake was made.  Further, once the court rules on an issue, your options to amend it are few and will most likely require the aid of an attorney.  These early stages in a divorce are crucial and there is no room for mistakes.  This makes it imperative to consult with an experienced divorce attorney who will ensure you do not inadvertently forfeit crucial rights.

Matthew S. Poole understands the expense involved in a divorce and recognizes the need to keep down costs.  He is a compassionate, experienced Mississippi divorce attorney that will strive to achieve your divorce with as little cost to you as possible.  Matthew S. Poole knows the intricacies of divorce law and will ensure your best interests are advocated for.

Call The Law Office of Matthew S. Poole today at (601) 573-7429 to schedule a consultation.

The Potential Impact of the Affordable Healthcare Act on Divorce in Mississippi

Tuesday, November 5th, 2013

Every major website, newspaper, radio, and social media network is teeming with news on the recently enacted Affordable Healthcare Act.  The Healthcare Act has undoubtedly produced a strong reaction from the American public and everyone seems to have an opinion on the potential effects of the Act.  One theory posed in recent days is that the Affordable Healthcare Act, commonly called Obamacare, will increase the divorce rate across the country including here in Mississippi.

A Brooklyn couple provided their story as an explanation for why Obamacare may impact the divorce rate.  The couple, Nona Aronowitz and Aaron Cassara, earn over $62,000 a year combined, making them ineligible for subsidies under the Affordable Healthcare Act.  Nona Aronowitz is a freelance writer and Aaron Cassara a film industry worker.  If the couple instead chose to divorce and live together, they would qualify for subsidies.  The savings would equate to several hundred dollars a month.  Nona and Aaron are now considering divorcing because they realize the potential large savings.

Nona and Aaron are not alone in discussing divorce in the post-Affordable Healthcare Act world.  The Act has been criticized for instituting a divorce incentive or wedding tax due to its sometimes negative impact on married couples’ finances.  The calculator featured on the Kaiser Family Foundation website illustrates the affect of marriage on healthcare prices.  For instance, a forty year old couple with two children earns $93,000 combined, with one parent earning $70,000 and the other $23,000.  They will not receive a subsidy if they apply while married and will pay a premium of $11,547 annually.  If that same couple divorced and gave custody of the children to the low wager earning spouse, their combined annual premium would only be $4,317.

Anyone in Mississippi considering divorcing to save money on health insurance costs should exercise caution, however, as it is actually illegal to cohabitate in our state.  In Mississippi, as well as Florida and Michigan, it is illegal for opposite-sex couples to cohabitate.  The law in Mississippi is set out in Miss. Code 97-29-1.  This law is rarely, if ever, enforced but does have tax consequences.  The IRS will not allow opposite-sex couples in Mississippi, or Florida and Michigan, to file jointly or declare their significant other as a dependent.  Those caught filing as such or filing to healthcare subsidiaries using their de-facto marriage status could have to pay back the years of undeserved tax credits if caught by the IRS.

While the potential impact of the Affordable Care Act on divorce is a new issue, the topic of health insurance following a divorce has existed for as long as the institution of divorce.  Most often, divorce results in the loss of health insurance by one of the spouses, generally in families where one spouse was a stay at home parent or lesser wage earner.  A study conducted by the University of Michigan in 2012 revealed that about 115,000 women loss their health insurance every year after divorce.  In these situations, the Affordable Care Act may prove a boon for divorced spouses as it should allow them to get quality coverage at an affordable rate.

Though divorcing to obtain less expensive health insurance seems like a rather extreme measure, time will tell whether couples actually resort to this means of saving money.  In the meantime, if you are considering divorce and have questions about the impact it will have on your health insurance, Matthew S. Poole can help.  Matthew is abreast with the most current health insurance laws and can examine your individual situation to determine how you can best protect your essential health insurance coverage after divorce.

Call The Law Office of Matthew S. Poole today at (601) 573-7429 to schedule a consultation.

Tips to Create an Enforceable Prenuptial Agreement in Mississippi

Saturday, November 2nd, 2013

There is little romance involved in the negotiation and signing of a prenuptial agreement.  Often, soon to be spouses avoid this awkward topic as it may seem cold or almost cruel to bring up the possibility of divorce before the wedding even occurs.  However, given that statistically over 50% of marriages today end in divorce, a prenuptial agreement can serve an important purpose and save much heartache down the road.

In Mississippi, prenuptial agreements, also known as “ante-nuptial agreements,” are contracts between a man and a woman entered into before marriage, defining what will happen to assets in the event of divorce or death of either party.  Prenuptial agreements must be in writing.  Mississippi has recognized this form of contract and enforced prenuptial agreements since the mid-1800’s.

To be enforceable under Mississippi law, a prenuptial agreement must be fair in its execution and involve full disclosure.  Fairness in execution essentially means that both soon to be spouses were able to participate meaningfully in negotiations, free from coercion or duress.   The parties should have plenty of time to discuss the agreement and contemplate before providing consent.  Full disclosure means the parties were informed fully of each other’s financial conditions, as well as future financial conditions, prior to signing of the agreement.

With these guiding principles in mind, the following is a list of tips to create an enforceable prenuptial agreement in Mississippi:

  1. Discuss your premarital agreement far in advance of the wedding—one of the most important factors in the enforceability of your prenuptial agreement will be whether both spouses had sufficient time to contemplate the agreement.  Start discussing your wishes for a prenup well in advance of the wedding, and even in advance of any wedding planning if possible.  Waiting until the invitations are in the mail, the flowers selected, and the honeymoon planned is a risky proposition, as the chancellor is more likely to find, under such circumstances, the spouse signed under duress.
  2. Both soon to be spouses should consult with an attorney—it is always best for both spouses to consult with a knowledgeable family law attorney concerning the prenuptial agreement.  Typically one spouse will have an attorney draft it, but their fiancé should then take it to a different attorney for review.  By having both parties consult with counsel, the agreement is much more likely to later be found enforceable as both parties were fully informed of their rights.
  3. Disclose all of your financial data—it is best to fully divulge all of your financial information to your fiancé during the prenuptial agreement negotiations.  Swapping important financial documents like tax returns and asset/liability statements is recommended.  For partners who have been divorced before, ensure your fiancé receives a copy of your divorce agreement as well as child support obligations, if any.  Disclose your debts.  All too often, newlyweds learn of their spouse’s debts only after the wedding.  Failing to disclose important financial details such as this can lead to an unenforceable prenuptial agreement.

Creating a prenuptial agreement does not have to be momentous or straining on a couple.  By following a few simple steps, you can create a prenuptial agreement to protect you against the worst case scenario, while ensuring no hard feelings on the part of your spouse because he or she was provided with plenty of time to think it over and subject to full disclosure.

Matthew S. Poole, a Mississippi family law attorney, has helped countless clients draft and review prenuptial agreements.  He knows how to create an enforceable prenuptial agreement that protects his client.  Contact The Law Office of Matthew S. Poole today at (601) 573-7429 for a free initial consultation.