Archive for July, 2018

Expectation vs. Reality: My Lessons in Practicing Domestic Law

Friday, July 27th, 2018

My name is Kenneth Davis, and I have been working for Matthew for close to two years total now. When I first began working in domestic law, I fell victim to much of the overly optimistic enthusiasm that so many young lawyers encounter. Coming from a very close family that has never needed intervention to solve conflicts between us, I was rather naïve to just how petty people can be in litigation over family matters. Family is the most important thing in this world, and sadly that often gets lost in the maze that is a domestic lawsuit. I say this not to downplay people’s emotions or investments in their goals for their family, but rather to be up front with people on the things I see on a day-to-day basis.

Much like professional golf, a lawyer-client relationship is much more of a team than most people think. The client does not only sign a petition and then sit back and let the lawyer do the rest. Clients are their biggest advocate, and they know more about their case than anyone else. The lawyer’s job is to trigger the client’s mind for information they can use to prove their case, and to present that proof to the judge in an effective way. Like a golfer and their caddy, a client and their attorney must be on the same page every step of the way to achieve the best result possible.

When I tell people I practice domestic law, what follows is usually a form of “that must be dramatic.” It certainly is, as family law impacts people’s everyday lives and their relationships with their children. Most of the stories I tell are the really ridiculous ones, such as fighting over the most minor things. I then realized that while many litigants mean well with their lawsuit, sometimes they are mostly fueled by spite. That is most unfortunate, because often the client’s reasonable goals take a back seat to that anger toward the other party. That can add unnecessary baggage and stress to an already volatile situation, and it can put strain on the attorney-client relationship at the expense of the result.

Domestic law can be a challenging and stressful arena in which to practice, although for the most part it is satisfying. It brings me great pride to know that these clients have trusted me with their familial relationships, which are sacrosanct. As with any area of law, proper discipline and teamwork make a world of difference in the outcome of a domestic lawsuit. The most important thing in a domestic case is to never lose sight of what you are wanting to achieve. It can be easy to get lost in the trees and lose sight of the forest. This is truly the best advice I can give to anyone I meet, whether it be a litigant, another attorney, or anyone with a goal they want to achieve.

Through the Eyes of a Child; Divorce Life Lessons

Friday, July 20th, 2018

It is all too common that we forget the smallest things in life, sometimes to our detriment. More often than not, forgetting the simple is counter-productive. Going through a divorce, it is usually the best path forward to revert to the basic that you know with certainty. Attempting to preserve your marriage requires the same thinking.

When Kareem Abdul-Jabbar, arguably the best basketball player, if not athlete of all time, was inducted into the Hall of Fame, he spoke true words of wisdom. When asked by a nationally renowned reporter, “What made you so successful?”, the great said simply, “I just try to do the little things right. To most people it seems like small stuff, but it often makes the difference between winning and losing”. Well said.

We’ve written so many articles about the best approach to get a fair and just result when going through a divorce. We decided it would be refreshing to write on a related topic; a topic intended to assist people in preserving their marriage. This may have lifelong implications for children and is so important to our society. And yes, we are aware of the irony of the article as written by a divorce lawyer.

It is absolutely fundamental that we must work to recognize the concept that Robert Fulgham advanced in his famous book, “All I Really Need to Know I Learned in Kindergarten”. It is necessary to our happiness as well as the well-being of those we care about that we remember the lessons learned as children, and some of them are so simple that they are easily forgotten; be nice to others, don’t hit people, remember to pick up after yourself, work hard, pay attention, and the list goes on as such. These are such simple concepts that in our everyday lives their importance often gets lost in the clutter. That is a true tragedy.

So many adults could bring happiness to not only themselves but their spouse, who is a reflection of themself, and also most importantly to their children by simply remembering the lessons we learned so many years ago.

My office regularly receives calls from prospective divorcees seeking information as to how to obtain a divorce. It is amazing to me that so many people will have failed to even have a discussion with their spouse about whether or not a divorce is a good idea for either spouse. It is my firm belief that this world would be such a better place if we considered others’ feelings, our childrens’ well-being, and the happiness of the one we married as a paramount concern. They are too easily forgotten and brushed aside.

If I may leave you with a simple piece of modest wisdom, ask yourself if you have fulfilled your marital vows, if you have considered your children’s future thoroughly before even contemplating severing the bonds you made in matrimony. Ask yourself through the eyes of a child. If you have truly exhausted all possibilities and are still unhappy in your marriage, you may have very well earned your way out of a bad place. If my office can help you receive justice and fairness as a last resort in the severance of your marriage, give us a call.

Matthew Poole is a Jackson, Mississippi family attorney who is focused on the preservation of fairness and justice and the best interests of children. He was admitted to practice in 2004.

Military Retirement: Who Gets It in A Divorce?

Monday, July 16th, 2018

Our nation’s troops endure conditions that most of us can only imagine, although sadly they are not immune to the challenges that marriage present. The stress of a career in our nation’s military can have a huge impact on the ability of relationships to last and thrive. When a service member is heading for divorce, a huge question in that process is the distribution of military retirement. This is a valid concern, as the non-military spouse may not be working so as to provide childcare or for any other number of reasons.

When retiring with at least 20 years of active service, a service member receives a retirement pension for the rest of their lives. That means if a person becomes an active military service member right out of high school, they will qualify for that pension around age 40, which is not an uncommon age for someone going through a divorce. The Uniformed Services Former Spouses Protection Act, passed in 1982, states that military pensions are to be treated as marital property when the time of marriage and service overlap. Under the USFSPA, the marriage must have lasted 10 years during which the military spouse performed 10 years of creditable service to be eligible for that retirement pension. This does not mean that the non-military spouse automatically receives half of the pension, rather it gives courts the authority to divide that pension in accordance with that court’s state property division laws. In Mississippi divorce cases, it has long been held that chancery courts have the authority to order a fair division of property acquired through the joint efforts of the parties. As aggravating as this may be for both litigants and advocates alike, chancellors in Mississippi are trained to make these decisions that are fair and equitable to both parties.

As with any divorce case, every military divorce case will be different in its own way, and there is no way to accurately guarantee a specific result. Even the courts say there is no formula! However, a military marriage is a two-way street of effort and sacrifice, and courts acknowledge that non-military spouses are as important to those marriage as our service members are to the military. Unfortunately, the stress of marriage and military life infiltrates military unions as easily as civilian ones. The most important part is finding an advocate that understands the plight at hand, and knows that courts will take steps to protect the service member’s interest in their hard-earned pension while attempting to ensure that the non-military spouse is adequately taken care of. If you or someone you know has a question about the role of a military pension in a divorce, call the Law Office of Matthew S. Poole. Our office holds the military in very high regard, and we will work to give you honest answers to any question you may have.

Great, One More Lawyer: Guardians ad Litem

Monday, July 9th, 2018

It’s an age-old joke that the more lawyers are involved, the more confusing (not to mention expensive) a situation tends to become. Whether well-founded or not, there are many situations that having lawyers involved is simply a foregone conclusion. One of the most prevalent of these examples is a case involving the well-being of a child. In many of those cases, a separate attorney will be added to the case to act as a guardian ad litem (“GAL”, literally guardian at law) to represent the best interests of the child or children involved. While of course many parents have the best interests of the child in mind during litigation over custody, such an emotional type of litigation can make it difficult for the child to remain at the forefront of concern.

A Mississippi court will appoint a GAL when there is a claim of abuse or neglect of the child by one or both parents. This could be physical abuse, mental abuse, sexual abuse, or neglect such as failing to provide the child with proper shelter and food. Other situations where the appointment of a GAL is mandatory in Mississippi include:

If DHS seeks protective services for a vulnerable adult and that person lacks capacity to waive the right to counsel;

In eminent domain and condemnation proceedings for parties who are minors or otherwise incompetent and are without a general guardian;

In a divorce proceeding based upon incurable insanity, if the defendant otherwise has no legal guardian;

If the mother dies while a paternity case is pending;

In a guardianship action where an interested party wishes to establish an estate plan, and it is determined the ward will remain incompetent during their lifetime;

Termination of parental rights;

Contested adoptions; and

If an individual convicted of felony child abuse wants visitation the child.

This is not an exhaustive list, and therefore it is evident that in almost any situation where the possibility of the child playing second fiddle to an issue in a case, Mississippi courts will appoint a GAL. This is an attempt to ensure that the child is treated fairly, and, above all, not taken advantage of or used as a pawn in litigation. Unfortunately, the nefarious use of a child’s presence in a case to get the upper hand is not evident at the outset of the case to either the lawyers, judges, or even the parties themselves.

Mississippi attorneys who serve as guardians ad litem must undergo training in juvenile justice provided or approved by the Mississippi Judicial College, and must renew that certification every year. The appointment of a GAL is an important step in litigation, and parties to suits in Mississippi should feel comforted in knowing that the attorneys serving in that role are required to refresh their memory of how to properly serve as a GAL. It can be intimidating to feel as though a party has one more person to impress or convince during litigation, on top of the judge, their lawyer, their friends and family, and their child or children. However, a GAL is involved in the case to represent the child, and their involvement should be welcomed and their input appropriately considered. Their work truly is selfless.

Child custody cases are some of the most time-consuming, expensive, and stressful cases that come through our office. It is our primary practice area. While many times the events during litigation seem petty and trite, the outcome is one that will shape the course of the relationship with the parties and the child(ren) for years. Therefore, the presence of a well-respected guardian ad litem is a large boost in the confidence that the best result will be reached for the child. While many times it is true that the mere presence of lawyers will breathe life into a conflict, suits impacting children are ones that a better result can be reached by having another attorney join the fray. If you or someone you know has a question about child custody litigation and the role that a guardian ad litem plays in litigation, call the Law Office of Matthew S. Poole. We have the experience and knowledge to answer almost any question you may have about this process, and the benefits that come along with the appointment of a GAL.

To Move or Not to Move; The Million-Dollar Question

Wednesday, July 4th, 2018

Our office frequently receives questions from both clients and curious would-be custody litigants as to whether moving from Mississippi will adversely impact their custody case and the corresponding rights they have to custody of their children. As expected, there is no simple answer to complex problems that life often presents parents and child custodians. However, a brief review of the applicable law does shed much-needed light into the darkness that accompanies ignorance of Mississippi custody law.

One can refer to the phenomenon as “home court advantage” or “home state preference”, but at the end of the day, the label is not what defines impact on parents’ and childrens’ lives. When a parent moves outside of Mississippi, the million-dollar question is always whether that move will trigger a potential modification of custody of the child/children. Our analysis and estimation of legal ramifications of moving must begin with the few things we can know with certainty. I will begin by stating with zero equivocation that I have recently seen a dramatic increase in litigation wherein the custodial parent moves far away from Mississippi.

The well-settled standard for modification of physical custody of a minor child (or multiple children) is relatively straightforward on its face: when custody has been awarded to one parent (by a court of competent jurisdiction) modification will be allowed ONLY upon a showing of:

1. A material change of circumstance—to be distinguished from a mere change which is not evocative of the well being of the children involved.

2. The material change in circumstance must demonstratively adversely affect the welfare of the child/children.

3. That a change in custody must be in the best interests of the child/children. {Polk v. Polk, 589 So.2d 123 (Miss. 1991), Pace v. Owens, 511 So. 2d 489 (Miss 1987)}. In Pace, the Supreme Court mandated that Chancellors make specific findings of fact in support of any decision to modify physical custody of children. All three prongs above must be addressed with specificity in the official court record.

It is notable that the standard for modification of custodial rights is applied in a different manner wherein the parents have joint physical custody and one parent makes a unilateral decision to leave Mississippi’s jurisdiction. The burden of the remaining parent is thereby reduced and there is no longer a requirement that proof demonstrate an adverse affect on the children, thereby prong #2 above would be null and void under these circumstances. McKree v. McKree, 486 So. 2d (Miss Ct. App. 1998).

So the answer to our query is well settled? Not so fast. It appears to myself and my clerk, the Honorable Kenneth Davis, Esq., that Chancellors across our great state have significant leeway and remarkable discretion in making determinations as to whether the “trigger” of modification of custody has been met, thus allowing a parent remaining in our state to initiate a well-founded claim for custody modification. Can the move of a custodial parent meet the threshold burden bestowed upon a non-custodial parent to achieve modification child custody? The best answer is probably, but not certainly. Most important is to recall that the POLESTAR (most important) consideration for any Chancellor is what is best for a child {Albight v. Albright, 437 So. 2d 1003. (Miss. 1983)}. See also Miss Code Ann. §93-5-24 (1972, as amended). The totality of circumstances will dictate the outcome in the vast majority of domestic litigation. It is reasonable and understandable that litigants want clarity and desire certainty. Finality is incredibly valuable. However, would-be litigants that are able to appreciate the big picture and viewpoint of Chancellors (who are the “super-guardian” of all children in their respective jurisdictions) and the subjective elements are most often successful in navigating treacherous child-custody matters.

I have 14 years of experience in domestic litigation and can say without shame that clear answers are often elusive. There is a best path forward in any family issue that you are facing, and my staff and I are dedicated to fight to vindicate your custodial rights. While there may be no simple answer, the path forward is always based in love for your children and a deep desire to impact their well-being in a meaningful and permanent way. It can be done. Where there is a will, THERE IS A WAY.

Matthew Poole is a Jackson, Mississippi domestic relations attorney with 14 years of determined focus in family law and domestic litigation with an emphasis on case evaluation and analysis.