Archive for December, 2016

Prenuptial Agreements are Always Enforceable, Correct?

Wednesday, December 28th, 2016

In Mississippi, as well as every other state, many couples seek the protections and predictability that can often be offered by entering into a contract prior to marriage, commonly referred to as a prenuptial agreement. While prenuptial agreements are generally valid and enforceable, there are exceptions that a client needs to be aware of as to the terms of that agreement prior to entering into such an contract.

The Mississippi Supreme Court has ruled that any prenuptial agreement is enforceable just as any other contract. However, the execution of the agreement must be deemed to be fair. The general consensus is that fairness indicates that the agreement has to be entered into voluntarily and with full disclosure of both the husband and wife’s financial assets. It’s clear that fairness can encompass many different ideals; however, the providing of entire disclosure as to the parties’ finances and/or the knowledge of each other’s financial state is a paramount concern when entering into a prenuptial agreement. Fairness can also be affected by whether or not the parties are represented by counsel, or whether the parties had time to review the agreement prior to its execution. In other words, if either party is under duress in signing the prenuptial agreement, it is possible that the court may invalidate certain terms or conditions contained in the prenuptial agreement. The education of the parties is also a factor in whether or not the agreement was sufficiently explained or so complicated that an explanation as to the terms was necessary. It is important to note that execution of the agreement could be considered fair by a chancery court even in the case that either side is not represented by counsel.

Our general advice to any client who is seeking the protections of a prenuptial agreement is to contact an experienced Mississippi attorney who is able to guide you through the potential landmines that can occur in the prenuptial contracting process. It is also important that clients recognize that prenuptial agreements have to be consistent with public policy and cannot fly directly in the face of clear statute in state of Mississippi. Some examples of a prenuptial agreement being deemed invalid by chancery court would include not only cases where the contract between the husband and wife are directly inconsistent with Mississippi statute, but also when the parties have contracted to a matter which is deemed at odds with public policy. Although public policy exceptions are less likely to occur, it is important to note that a court always has the ultimate say in determining whether or not the terms of the contract are fair and just. A court could also deem certain terms under a prenuptial agreement be deemed unconscionable. All of the laws and regulations related to any contract also apply to prenuptial agreements. Therefore, prenuptial agreements are not given specific immunity from being deemed invalid by a court simply because the parties agreed to the terms.

If you need assistance in drafting a prenuptial agreement, we are equipped to assist you in that process. We are able to help you consider the factors that may not have been considered to this point, and will be able to draft the contract in such a way that it will be deemed most likely valid if it were challenged in the event of a divorce or separation. If you need assistance with any of these matters, call the Law Offices of Matthew Poole, 601-573-7429.
Law Office of Matthew Poole

Why Is My No-Fault Divorce So Difficult?

Wednesday, December 21st, 2016

Many people in the state of Mississippi, as in other areas of the country, seek to finalize and dissolve their marriage under what is commonly termed a no-fault divorce, also known as irreconcilable differences divorce in legal terms. No-fault divorces offer a variety of benefits for a prospective client, including that they are less expensive and less stressful than going through all of the arguing and fighting that accompany fault-based divorces and the lawsuits that are necessary in order to obtain a fault-based divorce.

As we’ve discussed many times on this website, and as is known by the majority of the legal community, fault divorces require the filing of a traditional lawsuit against your spouse. Many people wonder “why is it that my no fault divorce seems to be so difficult?” In short, no-fault divorce really has nothing to do with whether or not one of the parties or both have committed wrongdoing during the course of the marriage. No-fault divorces exist only when both parties have a clear agreement as to all of the issues involved in the divorce. When the parties have a child or children, own property, or have established separate living arrangements will complicate matters. No-fault divorces become less and less likely when more issues are involved. It is usually our recommendation that in a scenario where both the husband and the wife own little or no property, a no-fault divorce is easily attainable and should be pursued.

It is important, however, to note that in instances where there is not a firm agreement on all issues, a no-fault divorce is not an option. If the payment of attorney’s fees, alimony, whether or not one party wishes to stay in the house with the objection of the other, the visitation schedule of the children, or the possession and payment of automobiles or expenses related to any property owned by the couple is not agreed to, fault divorce is needed.

I’ve practiced domestic law for in excess of thirteen years, and have realized that there are several scenarios where the parties are very close to an agreement; however there are a few sticking points that have precluded them from reaching some final resolution to the dissolving of their marriage. Always remember that it is cost effective to agree on terms of divorce, but this is more easily said than done.

My general recommendation would be that if you are close to an agreement but have not yet obtained one with your spouse, make a short list of the issues that you do agree on prior to contacting an attorney. If you are able to make a list of the things that you do agree on and have very few things left over that could be resolved with a minimal amount of effort, you are on the path to a no-fault divorce. If the filing of a lawsuit against your partner is necessary, you will spend a significant amount of money that can go toward a better use, such as the support of your minor children or the sustenance of your daily living expenses. It is likely that you will need to contact an attorney at some point in order to get some advice about whether or not your divorce is in fact a no-fault or irreconcilable differences matter. If you are able to make some accommodation with your spouse in terms of resolving the major issues, it seems that likely that you will be able to obtain a no-fault divorce with minor adjustments to any initial draft of your agreement with your spouse. Don’t try to win every battle, just win the ones that matter most.

If you are seeking advice as to whether or not a no-fault, or “I.D.” divorce is attainable in your current scenario, we’re best equipped to provide you with assistance in making that determination and advising you as to the best path moving forward. Please feel free to call us for a no-cost telephonic consultation any time at 601-573-7429.
Law Office of Matthew Poole.

Five Divorce Misconceptions

Wednesday, December 14th, 2016

In our office, we see a variety of mistakes made by clients, many of which have an impact on the outcome of their divorce in terms of the division of assets, awards of alimony and/or attorney’s fees, and even in the determination of custody of the minor children. Keep in mind that much of the financial responsibility is the responsibility of the non-custodial parent. Do not ruin your own finances. Do not allow the potential future cost of your children’s college education to be forgotten in your divorce – your spouse owes his or her fair share. After all, the minor children did not ask to be brought into this world; both of you created them, and BOTH of you are responsible for giving them a fair shot in life.

1. When things get rough at home I should move somewhere else. False (with some caveats). The most common mistake we see is the belief that one can simply leave the marital home when things go sour. Our advice to any client is that leaving the home prior to a court order being issued is a mistake, unless of course there is a legitimate fear for you own safety or for the safety of the minor children. Many Chancery Courts in Mississippi routinely rule that the party who has left the marital home without proof of provocation forfeits his or her equitable share of the value/equity of the marital domicile. Trust the advice of a trained professional and duly licensed attorney before making a hasty decision to jump ship altogether.

2. It is okay to start dating as long as I am separated from my spouse. False. Mississippi does not recognize legal separation, and if children are involved, you automatically start out “behind” in terms of the factors considered by the court in an award of custody – Albright v. Albright considers moral fitness as well as continuity of care, so tread very lightly and perhaps just try to enjoy being single for a while (until your marriage is officially dissolved). Also, the Chancery Courts in Mississippi will generally give favor to the adult in the room, i.e., the person who valued the sanctity of marriage until the bitter end, regardless of fault.

3. It is acceptable to drain our joint bank accounts. After all, they are in my name also. False (With a few exceptions). There may in fact be circumstances wherein you should attempt to recoup losses or ensure that future bills will be paid, but this is a challenging and complicated issue. We recommend that you consult with your attorney before taking any such measures, and keep in mind that any action you take out of anger or spite will likely be adverse for you when your case is heard by a Mississippi Chancellor.

4. It is okay to utilize social media to vent about my spouse. We have freedom of speech, after all. False. Any disparaging of your spouse is not solely in the context of personal free speech when children are involved. The Chancery Court is the ultimate arbiter (a.k.a. the super-guardian) of all minor children within its jurisdiction. Using Facebook, Twitter, Instagram, Snapchat, or any other social media platform as a forum to vent your frustration is ill-advised. Exercise patience and trust the court to make a fair and consistent judgment, one that will be in the best interests of your children. Divorce, even when relatively amicable, is never easy, and it can be tempting to vent your frustrations or to seek emotional support on social media. However, it’s important to keep in mind that this type of behavior rarely, if ever, earns you favor in a Mississippi Chancery Court.

5. It is my right to choose to minimize my spouse’s contact with the children until the divorce is final. False. (With rare exception). The only legitimate reason to become an obstacle to your spouse’s visitation with your minor children prior to a divorce being finalized is when there are safety concerns which can be shown by proof – if the evidence does not demonstrate that your children are in danger when in the care of your spouse, be careful. The last position you want to be in is to have to explain why you took the reins of child custody without the permission of the court. Remember, the Chancery Court is the legal “super-guardian” of all children within its jurisdiction, and that responsibility is taken incredibly seriously.

If you have a question about this article or about child custody in general (whether in the context of a divorce or otherwise), or if you simply would like to share your input, we would love to hear from you. Please feel free to contact The Law Office of Matthew Poole, via telephone at (601) 573-7429 or email at matthewspoole@gmail.com. We are best equipped to assess your situation and give you some practical advice on steps you can take to receive a favorable result in Mississippi Chancery Court.

Considerations in Hiring a Domestic Lawyer

Thursday, December 8th, 2016

There are a huge number of variables to consider before hiring an attorney for any legal matter, and when it comes to a matter of domestic law, that consideration is especially important. This particular area of law is quite complicated and can be confusing, and there are certain criteria that prospective clients should be aware of before hiring an attorney for a divorce, modification, or custody issue. I have practiced in the domestic arena for thirteen years and have handled over twelve hundred domestic matters during that time.  Let me give you some basic advice that hopefully will benefit the interests of justice for yourself and your child.

First, I would like to make very clear that there is no one specific set of rules that dictate what makes a competent, ethical, and able attorney, one who will ensure that your rights are protected under any one set of circumstances.  In my opinion, all successful attorneys share one common attribute – they have the proper skillset to perform their job.  In other words, the best domestic/family law attorneys are always on the offense.  The general theory and belief amongst the best domestic attorneys is that as long as you are attacking the opposition, you are winning. Keeping them on the defense makes them unable to use their time to attack you.  It is always better to be on the offensive, and it is very difficult in any circumstance to score points with the court when you constantly have to defend allegations from the opposition.  This is not to say that frivolous accusations are heralded or met with favor from the court; however, in any domestic scenario, there are only so many angles at which to bring valid factual allegations against your opponent in order to gain favor with the court and to demonstrate with the court that you are in fact on the “high ground” in terms of the legal merits of your custody or divorce case.

I would highly suggest that anyone searching for a domestic attorney seek one who doesn’t “wear too many hats” – in other words, one who isn’t a proverbial jack-of-all-trades.  The reason I say this is that in Chancery Court we often see attorneys who handle car wrecks, DUI’s, felony criminal matters, and practically anything and everything else they can get their hands on in order to pay the bills.  I strongly advise against hiring an attorney who wears too many hats.  It’s possible for an attorney to be competent and able to practice in two or more different areas effectively; however, your bets are best hedged when you hire an attorney whose practice focuses on a more specific practice area. For comparison, would you entrust your health or the health of a loved one to a thoracic surgeon who is also a vascular surgeon, an oral surgeon, a family practitioner and a plastic surgeon? There is no way he or she could have mastered so many areas, all of which are vastly different and require vastly different skillsets. And whether it be medicine or law, the advice is no different: leave the “jack-of-all-trades” for the rural areas that have few options when it comes to either profession.

The last bit of advice I would give anyone seeking an attorney for a divorce or child custody matter is to look at the amount of experience the attorney has in that realm.  I have occasionally run across attorneys who have practiced for four or five years, who are competent and who, at the very least, do a sufficient job in representing their clients.  However, I would caution that seven to eight years of experience should be considered the standard prerequisite for having mastered the nuances of the case law and statutes which permeate domestic litigation. An attorney’s experience is invaluable and crucial in helping you to obtain the best result for your own unique circumstances.

If you would like to speak with us regarding your domestic matter, be it divorce, custody, modification, or contempt in Chancery Court, please give us a call at (601) 573-7429 and we will be glad to schedule a consultation.