Archive for April, 2018

Don’t Just Ask for a Restraining Order

Sunday, April 22nd, 2018

Have you been physically assaulted by your spouse or the father (or mother) of your child? Have you contacted the local police and other authorities regarding the abuse? Oftentimes children are the primary victim of their own parents’ hatred of one another. If your children have witnessed one or more incidents of physical abuse, they are likely viewed by Mississippi law as victims of abuse and neglect themselves and have multiple avenues of recourse. While courts with criminal jurisdiction such as Justice Court, County Court, and Municipal Courts are able to provide you with a peace bond or other means of restraining your spouse/opposing parent from the harassment and stalking that so often accompanies domestic abuse, they have severe limitations.

Unfortunately, the separation of powers between the various types of courts in Mississippi can present additional challenges to the actual victims of domestic abuse. Mississippi Chancery Courts are of limited jurisdiction of all matters set forth in §159 of the Mississippi Constitution of 1890. The State of Mississippi is comprised of twenty (20) Chancery Court Districts (see §9-5-3, Mississippi Constitution, 1890). There are six (6) specific subject-matter areas in which Chancery Court exercises exclusive, complete, and ongoing jurisdiction, including “All Matters in Equity” and “Minor’s Business”. “Equity” is an often confusing and misinterpreted term. According to Black’s Law Dictionary (Seventh Ed.), equity has a four part definition, the first two of which are particularly telling as to the depth and breadth of Mississippi Chancery Court subject-matter jurisdiction. First, Black’s asserts that equity is “Fairness, impartiality, evenhanded dealing”. Secondly, It is “The body of principles constituting what is fair and right; natural law”. Clearly equity isn’t a lucid concept, rather a notion that is reflective of available recourse as to principles of justice.

Victims of domestic violence are able to obtain relief from Chancery Court per the procedure set forth in Mississippi Code Annotated §93-21-3 as well as those governed by Mississippi Rule of Civil Procedure 65. As codified, the victim of domestic violence, married or unmarried, may go so far as to award the abused parent possession of the home or to require that the perpetrator provide adequate housing including utilities and other related expenses. Also, Chancellors are empowered by statute to encumber jointly held assets and make adequate provision for the care and support of minor children as well as the victim. Custody of the children, child support, and visitation are all within the realm of properly exercised equitable judicial discretion. Equity permits that Chancellors have broad authority in the spirit of protecting those who cannot protect themselves.

In short, Mississippi Chancery Courts are empowered by legislative proclamation to address a variety of issues that adversely affect children, as they too are considered victims of domestic abuse. Often it is assumed that a court other than Chancery Court is able to afford domestic violence victims some level of redress outside of the scope of a restraining order itself. However, as previously stated, the exclusive nature of Chancery Court jurisdiction as to “Minor’s Business” and “All Matters in Equity” precludes other arms of the judiciary from ordering such relief to victims.

The victim of domestic violence not only is afforded relief in various forms both equitable and by statute, but retains significant advantages in the determination of both temporary and physical custody. Mississippi Code Annotated §93-5-24 provides in pertinent part that;

“there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest (i.e. in regards to the commonly cited Albright v. Albright factors) of the child to be placed in the sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered. This presumption may only be rebutted by a preponderance of the evidence.”

It is clear that victims, parents and children alike, are afforded significant protections from those who would harm them. Although the presumption that violence perpetrators are not proper custodians or decision-makers for a child may be overcome it presents a sufficiently robust obstacle to those persons who have been restrained, enjoined, or otherwise found civilly liable for home-trauma. To be clear, the ball is not in the abuser’s court. Our office is fully able to address all of the challenges that domestic violence creates.

If you or someone you care about is a domestic violence victim and is in need of an attorney with experience as to the best path forward, my staff and I are ready to provide you with the resources to obtain justice. Our office exclusively handles domestic litigation and is unlike so many other firms who lack the client base to remain focused on these matters. We have 14 years of experience in this sub-category of Mississippi law and the will, desire, and knowledge to ensure that equity will be done.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

No Law Degree Needed to Know What’s Fair

Wednesday, April 18th, 2018

Many lawyers will tell potential clients that immediate action is needed to protect their rights and that they need to file a lawsuit now. This is often correct, as claims often go stale and witnesses forget what they have seen. However, in domestic relations law, sometimes the best practice can be resisting the urge to file a lawsuit and go to war.

Chancery courts are courts of equity, which means that the chancellors of those courts will seek to rule in a way that is the fairest to both parties. This allows clients who are not familiar with the process of a lawsuit to do a lot of the ground work themselves or through their attorneys. You do not need a law degree to know what is fair. Our office often receives calls from potential clients who have not talked to the other party about the situation, when that actually may be the best course of action.

Of course, sometimes lawyers may be more aggressive about starting a case than they should be. The thought process is that maybe the other side will realize what an inconvenience a lawsuit is and will be open to settling. While this may work sometimes, it seems like an unnecessary step in getting to what’s fair. Those two parties who once shared a bond or perhaps still share a child can only benefit from at least trying to communicate about what is fair to make it easier on everyone involved.

If you believe that a lawyer you meet with seems hell-bent on filing a lawsuit to get you what’s fair, you may want to speak to a different lawyer. When you leave that lawyer’s office, you should not feel as though you must file a lawsuit or they will not help you. Some parties only need the advice from a lawyer to try to talk to the other person, and in most situations it is worth the time and effort to try that. Otherwise, the nasty back-and-forth of a lawsuit will drain the time, resources, and emotions of the parties.

The lawsuit is a great thing that allows Americans to seek redress of the wrongs done to them. However, this process can also be abused. In chancery courts, where equity is king, sometimes the best option is to talk it out. If you visit a lawyer who seems to not consider that an option, a second opinion may be just what you need. If you or someone you know is going through a situation like this, call the Law Office of Matthew S. Poole. We have the experience in these matters and will give you an honest answer as to all of your options.

Frontline Prospective On Child Custody Law

Friday, April 13th, 2018

Working under Matthew Poole, a saying that I hear almost every day in the office is: “if everyone was reasonable, child custody lawyers would be out of a job.” As the main individual who handles calls to our office, I can tell you from first-hand experience that this is true. Working in a family law office can definitely show you the bad side of good people, and the people that call our office are usually in situations where tempers and emotions are high. As the person in our office who handles the majority of these calls, my perspective is that there are things that people can and should do to both save money and to help their situation in the long run.

From the start of my employment here, I noticed some commonalities between the variety of different calls we would receive on a daily basis. The main commonality in every call that we have received is lack of communication between the potential client and the person they are having issues with. If I could give any advice to those in these situations it would be that communication is key. There are so many situations where if the two people could just put differences aside and start a conversation with one another, it would save them so much heartache and money. After an extensive case study on custody matters, our office has found that 25% of people agree to settle their case with the same agreement that was offered to begin with. This shows that if the two people could just communicate without getting attorneys involved, they would not waste thousands of dollars on litigation; giving them more money to spend on the child.

I understand that communicating in situations like divorce and child custody can be tough. But in those circumstances, particularly when children are involved, being able to talk to the other side is vital. For instance, being able to have an open dialogue with the other parent in a child custody case can and will make it easier to deal with them later on down the road. Even though it’s hard, it would be so beneficial for the children if their parents were able to talk and communicate with each other about the children’s needs. It’s not easy for someone going through something like this to shelf their emotions and be the first one to reach out and start a dialogue, but in all honestly it is the best course of action to resolve their issue. To put it simply, every dollar spent on a lawyer could be spent on the kids. Why waste resources on litigation when simple communication could resolve the issue and leave that money available for the child? Doing so would dramatically decrease stress and replace it with tranquility. Just remember, the happier that a parent is, the happier the child will be.

Price is certainly something that most potential clients are sensitive to, and therefore we encourage all of our clients to attempt to talk with the other side as much as possible. Communication can help iron out many of the problems present, and can lower costs greatly for both parties. We understand this can be tough in a situation where there was a falling out of a once caring relationship. Unfortunately, there are times where starting a conversation is next to impossible and getting an attorney involved is the only option. If you believe hiring an attorney is your only avenue of relief, call the Law Office of Matthew S. Poole. We will do our best for you when communication has broken down in your relationship to get you a fair result.

Written by J. Tyler Cox, J.D. Candidate, Mississippi College School of Law, Class of 2018.

Annulments: What They Are and What They Aren’t

Monday, April 9th, 2018

An annulment is an interesting way to sever a relationship that may resemble a divorce in some regards, but is actually quite different. Our office receives many calls asking how to get an annulment, when maybe that person only has divorce to look to for relief. While a divorce severs a valid marriage, an annulment states that the marriage in question was never valid for a reason that existed at the time of the marriage. Annulments can be difficult to obtain, as there are only limited circumstances in which a Mississippi court will grant one. Time plays a factor as well, as a suit for an annulment must be brought within 6 months after the ground for annulment is or should be discovered.

Mississippi law states that a marriage is deemed valid if there is solemnization (a ceremony) and a proper license. When two people decide quickly to get married without any input or help from others, these are easy things to gloss over, especially in the rush and excitement of saying “I do.” A “marriage” with only one of these requirements met will not meet Mississippi’s standards, and therefore a marriage was never legally formed.

Of course, certain marriage even with these requirements met may not be considered valid under any circumstances, as in the case of bigamy or incest to a certain degree, and does not have to be brought within 6 months of the formation of the “marriage.” Dissolving a marriage involving either of those grounds simply requires a petition to the proper court by either of the parties along with sufficient proof. The other grounds for annulment in Mississippi are incurable impotency, adjudicated mental illness or incompetence of one or both of the parties, the parties being too young, pregnancy of the wife by another person if the husband did not know of the pregnancy, or where a party’s consent to the marriage was achieved through force or fraud. In other words, informed consent is paramount to any marriage.

As you can see from the limited grounds for annulment in Mississippi, there are many situations where an annulment is not available to the parties, and they will have to pursue a divorce to legally terminate their relationship. A common misconception that we hear is that because a marriage was short, then the parties can get an annulment instead of a divorce. While marriages that may be properly annulled by Mississippi courts are often short, the length of the marriage by itself is not enough for an annulment.

Annulments are an interesting creature of domestic relations law and can be confusing and difficult to pursue. If you believe you may have a ground for an annulment that can help you avoid a long and costly divorce, call the Law Office of Matthew S. Poole. We have experience in making the determination as to whether a marriage can be rendered moot and can be considered to have never existed, whether an annulment is a possible remedy, or whether divorce is the only avenue.

Hire a Lawyer… Fast

Wednesday, April 4th, 2018

Getting served with legal papers is not a fun experience. There is really no other way to put it. It doesn’t help that these papers are often served on the person at work to avoid confrontation, which adds to the embarrassment and confusion. However, as stressful as being involved in a lawsuit is, swift action in hiring counsel is an extremely important step in addressing it.

One of the common scenarios given in my first year of Civil Procedure was that clients would be served with papers requiring an answer (30 days in Mississippi), would lay the papers on the counter, and forget about it for 26 days. They would then see the papers while cleaning up and realize that they needed to hire a lawyer. While it may be tempting to try and ignore the fact that you are being sued, you should take fast action to protect your rights to be heard.

In custody actions, the summons is different than one requiring a written answer, and provides the person served with a time and place certain to appear and defend themselves. That hearing is called a temporary hearing, because it outlines the Court’s order on what the parties are to do until trial. This temporary order includes the parameters of visitation with the child as well as the support obligation of the parent who is not exercising primary physical custody. Depending on the space of the court docket, these temporary hearings are usually not set for very far out from the service of the complaint, so that the party bringing the suit can get some temporary relief while awaiting trial.

When you are served with papers such as these, don’t lay them on the counter and forget about them! As Jimmy Two Times would say in the 1990 film Goodfellas, you need to go “get the papers, get the papers.” Get those papers and take them to a lawyer before that temporary hearing date so that you and your attorney can talk about what will be the most effective strategy from there. The sooner you hire a lawyer when you are served with papers, the better. If you are served with custody papers, call the Law Office of Matthew S. Poole. We have the skills and expertise to make sure the proper strategy is in place before the temporary hearing so as to get you the best result in your case.

Written by J. Tyler Cox, J.D. Candidate of Mississippi College School of Law, 2018.