Archive for March, 2018

Alimony as Punishment?

Wednesday, March 28th, 2018

Probably the most common misconception about alimony is that it is a punishment for the person who has been ordered to pay it. Some believe that if their spouse has cheated on them, or has engaged in any type of misconduct, that they are entitled to alimony simply based on fault. This is simply not true. Basing alimony wholly on whether the other party is at fault would basically make alimony an award for punitive damages, which is a totally different beast altogether. Although fault is a factor when considering alimony, the main hurdle in any alimony dispute is need.

Punitive damages are damages that exceed simple compensation and are awarded to punish a defendant. Punitive damages do not take into account the need or income of the person being awarded those damages, but rather serve as a warning or discouraging measure to make sure that other people do not engage in similar behavior. For example, punitive damages are commonly used in torts cases where a court punishes a company for a misdeed in order to stop it from doing the misdeed again and to dissuade other parties from doing the same. Punitive damages are responsible for the TV commercials and billboards that speak of large awards won for clients.

The purpose of alimony is to offer support for a spouse who is financially-dependent on the other. Even though fault is a factor that a court will look at, a court will focus primarily on the need of the spouse seeking alimony. In other words, alimony can be awarded to a spouse if that spouse is in need of support because they are not equipped to maintain the level of lifestyle that they have grown accustomed to while being married. For example, if a wife never had a job while married and now is getting a divorce, a court may award her with alimony so that she may begin to get back on her feet since the main income earner in her household is no longer present.

There are four types of alimony:  (1) Periodic Alimony, the more traditional type, with no set termination date and allocated month to month based on need;  (2) Lump Sum Alimony, awarded as a fixed sum that can be paid all at once or in installments;  (3) Rehabilitative alimony, developed to assist a spouse when reentering the workforce after their marriage; and  (4) Reimbursement Alimony, awarded to a spouse who supported the other spouse through undergraduate, graduate, or professional school. A court may award just one type of alimony or a combination of the types.

While alimony and punitive damages may seem the same, they serve two totally different purposes. Punitive damages are a punishment payment made out to the other party, and while people who are ordered to pay alimony may see it as a punishment, alimony is actually just based on the need of the other party. There are two totally different criteria when awarding both punitive damages and alimony. Courts in Mississippi will in fact look at fault when awarding alimony, but only after an intense need-based analysis by the chancellor to determine how much and what type should and will be awarded. Confusing these two are very common among people who come into our office, and we are well equipped to answer any questions that may arise when dealing with these issues. Contact our office if you or anyone you know have any questions about alimony, awarding alimony, or any other questions please do not hesitate to ask.

Mississippi Child Custody Factors: Financial Situation of the Parents

Friday, March 23rd, 2018

One of the worst-kept secrets in the world is that kids are expensive. They break stuff, get sick, and outgrow clothes faster than you can buy them. In child custody cases, the court will take into consideration the finances of the individual parents, not because affluence counts higher in favor of custody, but that the ability to provide for that child is extremely important. This is not to say that the parent with the most money wins. It means that if one parent is totally broke, then they will have an uphill battle in showing the rest of the factors weigh in their favor.

Parents in a good financial situation will have an easier time showing that they can provide for the child, and possibly to spoil them to some extent. Spoiling does not mean turning the child into Veruca Salt from Willy Wonka and the Chocolate Factory. Spoiling means being able to buy the child a new bike, a baseball glove, and send them to college. A good financial situation also means that the parent can provide the child with a great place to live and can afford utilities without having to worry.

Courts may also look at the parents’ financial situations by seeing if the parents are responsible with money. Credit card debt, crazy investments, and buying clothes and jewelry beyond your means will lead a judge to believe that you have trouble limiting your spending, which can adversely affect the child. A parent who can show that they have their finances under control will have the upper hand regarding this factor of a child custody determination.

This factor is one that often confuses and scares clients that come into our office. Often, these are the parents who acted as a homemaker during the relationship or who never completed school because of childcare. The financial situation of the parents does not mean that the parent who makes more money will automatically win. It is simply one factor that can help a chancellor make their decision. Taking care of a child takes a responsible person, and one of the easiest ways to show your responsibility is to prove that your financial situation is a good one for the child to grow up in. If you have a question about your child custody case, call the Law Office of Matthew Poole. We love helping people take care of what is important to them, and would love to help you too.

Mississippi Child Custody Factors: Stability of Parent’s Home and Employment

Sunday, March 18th, 2018

Stability is one of the most important things in the raising of a child. Kids have it tough, and having a stable home gives them one less thing to worry about. As such, in custody cases the court will take into consideration the parents’ abilities to provide a solid place in which to raise a child. Kids are also expensive, so the stability of employment will also be examined, as stable employment means steady money coming in to support that child.

There are several indicators of stability of a home environment that can help a court make this determination. If one parent has lived in the same place for an extended period of time and the other has moved a high number of times, it would appear that the child would have stable, predictable housing. Stability can also come from routines within the household. If one parent can show that while in their care the child goes to bed at a reasonable hour, gets three squares, and brushes their teeth twice a day, that would show to a chancellor that the home is stable.

The stability of the home can also encompass other things, such as substance abuse or violence. A parent who has had issues with drugs, becomes intoxicated often in the presence of the child, or has frequent guests who do these things will have a tough time winning this factor in a child custody case. Violence toward others, especially to the child, will also give a judge concern with giving custody to that parent.

Firmness in the parent’s employment will also be examined in child custody cases. Much like when a boss is looking at an interviewee’s resume, a judge will be concerned if one parent has been terminated from several jobs recently. On the flip side, if one parent has held down the same job or has received promotions at work, that parent will be viewed as the more able to provide for the child.

Children have an absolute need for stability. They are going through life and learning along the way, and knowing their home environment will be the way it is gives them more ease. With stability, kids are free to devote their time and energy to doing things that kids should be doing. Firmness in the home and employment is one of the most important things you can show to a court in a child custody case. That shows that you can use your time and energy to being there emotionally for the child instead of having to worry about shelter or a paycheck. If you or someone you know has a question about your child custody case, call the Law Office of Matthew Poole. We are knowledgeable about these cases, and will give you an honest answer.

Mississippi Child Custody Considerations: Preference of the Child

Sunday, March 11th, 2018

Perhaps one of the more daunting and trying considerations for parents involved in a child custody dispute is the preference of the child. Parents contesting child custody are often nervous that their child’s preference will not be favorable to them because of a number of different reasons manipulating that child’s decision making. Sadly, this could even include the other parent’s influence. However, the preference of the child is but one of many considerations that chancellor’s weigh in their analysis of the Albright Factors to decide the best interests of the child.

By statute, the preference of the child will not be considered by a chancellor unless the child is 12 years old or older. After the sufficient age of 12, a child in a child custody case could be allowed by the court to express their preference as to which parent they would prefer to live with. A chancellor, however, is not required to honor the wishes of a child as to whom he/she would prefer to live with, but will only make that decision based on whether the best interests of the child is served by allowing them to express a preference.

This consideration is considered dismaying by some because of a parent’s ability to manipulate the feelings of a child in regards to the other parent. For example, there unfortunately are parents that will promise their children a later curfew, a new phone, or even a new car, just to manipulate the child into wanting to live with that parent. Although offering favors to their child may sway that child to their side momentarily, ultimately, a chancellor deciding the case will see that for what it is and take that into consideration when making his final decision.

Even though there are parents who attempt to essentially “bribe” their own children to make them want to live with them, a court will not make a decision based on the child’s preference if their preference is not in their best interest. It is understandable that this factor can cause a sense of uneasiness and worry in parents when dealing with a child custody dispute. Our office handles child custody disputes every day, and can help ease those worries. If you have any worries or concerns involving your custody disputes, or just have any questions at all involving your custody related issues, please contact our office. Thank you for following this series and please continue to follow along each week as we explore the Albright Factors.

Mississippi Child Custody Considerations: Home, School, and Community Records

Tuesday, March 6th, 2018

A child’s home, school and community environment will have a huge impact on that child’s development as a person, and will likely shape them for the rest of their journey through life. This is where they will form bonds of friendship, get involved in the community, and get an education that will help them meet the challenges of adulthood. One of the most common misconceptions regarding this factor is that a court will only look to whether a change in custody will result in the child being “uprooted” from their community or school. While this is certainly a potential aspect in a chancellor’s analysis of this consideration, a chancellor will ultimately focus more on each of the parent’s ability to take their children to and from school on time and the children’s absences from school while in each parent’s custody. The courts primarily focus on whether the child(ren) are in a stable environment and if awarding custody to another parent would improve or provide that stability.

Courts have regularly weighed this factor unfavorably against a parent if/when a parent relies on others to drop off and pick up their children from school. For example, the Court of Appeals in Mississippi has found in recent cases that when one parent habitually struggles getting their child to school on time, that is weighed negatively against them in favor for the other parent, even if the other parent would need to “uproot” their children in order to be awarded custody.

When considering this Albright factor, the court also focuses on the child’s attendance in school when in the custody of each parent. If the child has an abundance of absences from school while in the care of the mother, that fact would be weighed unfavorably against her in the determination of custody. Also, for instance, if while the father had custody the family moved frequently and the children were forced to change schools and communities often, a chancellor would certainly weigh that fact against the father, especially if the mother has maintained stable household.

We talk to many people who have questions about this factor and many who come into our office have concerns about how their child’s school and community record will affect their case. The home, school, and community record of the child is but one factor among many in a chancellor’s Albright analysis when determining child custody. If you, or anyone you may know, have any questions about how this factor or others may impact your case, call the Law Office of Matthew S. Poole. Our office has the insight to the application of these factors to answer any and all questions you may have. We are glad to help you in this uneasy time. Please continue to follow our website’s series on the Mississippi child custody factors.