Archive for January, 2019

OUR CHILD IS GOING TO COLLEGE! WAIT…WHO’S GOING TO PAY FOR THIS?

Thursday, January 24th, 2019

Michael Louvier, J.D.

As of last week my son Nick is a student at Mississippi State and my wife and I, and our entire family for that matter, could not be more proud of him. It is a time that we have experienced before with my daughter, Amy, in 2012, and so maybe we have some perspective on this transition. The family dynamic has changed, of course, as our last child is now “living on his own”.

The family finances have, also, changed; what with another rent payment, new utility bills and the other costs that come with a child “living on his own”. Factor in the books, extra fuel associated with travel, food, lab fees, parking fees, fraternity or sorority dues, etc. etc. All of this and I haven’t even mentioned the most important cost factor: TUITION. Suffice it to say that the tuition and all of the other expenses related to attendance at a four-year university is quite high.

This type of transition can be a very stressful and expensive time for all families. For parents of children whose families are divided by divorce or other circumstances, this new chapter in your life and, more importantly, the life of your child, will be exciting, stressful, and expensive, of course. And so the “million-dollar question is: Who pays for all of this? (It’s not quite a million dollars – it just feels that way).

Whether the parents are no longer married or were never married it should be obvious that a Court Order is best source for guidance on this issue. However, absent specific language in the judgment, this remains an unanswered question. This is not a simple “child-support” matter. Many divorces are settled out of court with the parties agreeing to matters of child custody and child support being contained in a Marital Dissolution Agreement a Property Settlement Agreement. Unfortunately, many of these Agreements do not speak to this issue within the “four corners” of the document. Still others include a generic mention that “non-custodial parent will pay for college” or some equally vanilla and non-descript language.

Perhaps the Agreement was prepared when the child was very young and college was not being contemplated yet. Or maybe it was simply assumed that the parents would “share” these costs and therefore no language about college was included. Whatever the case may be, a child’s decision to go to college may be considered “a material change in circumstances justifying child support modification.” See Lawrence v. Lawrence, 574 So2d 1376 (Miss. 1991). Another interesting and more recent case is Harris v. Porter decided by the Mississippi Court of Appeals in 2016. In Harris, a modification of child support was granted after a showing that the child “clearly showed aptitude for and the potential to benefit from college according to her high-school record” and the father was financially able to help with college expenses.

If you don’t yet know who has to pay, for whatever reason, you should do everything you can to completely identify how much and then try to reduce that amount.One very helpful organization is Get2college.org. There you will find useful information and specifics about the school that you are planning for and the availability of ACT prep courses and study materials. You will also find help with completing your FASFA (Free Application for Federal Aid). You will also want to visit studentaid.ed.gov. It is worth your time and effort to visit these sites in an effort to get any and all the help that is out there for your child.

Your student has some accountability in this also. The higher the GPA, the more scholarships and grants that you may qualify for. Also, a higher ACT score will not surprisingly increase these awards for your student. Remember that the Court in Harris v. Porter used the child’s high school record to determine her aptitude for college. Can we, therefore, assume that if the child had poor grades and a low ACT score that they would not have ordered the father to pay for the costs associated with college? Hard to say, but the Court’s decision was made easier by the high marks earned by the student.

Be happy for and proud of your child for wanting to go to college in spite of the financial burden. Educate yourself about the costs associated with this next step in your child’s life. And seek the guidance and assistance with aid, grants, and scholarships available. In this instance, knowledge truly is power.

Michael Louvier is a graduate of Mississippi College School of Law (1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick 20).

Custody/Divorce Mediation Pro’s and Con’s

Friday, January 18th, 2019

Mediating a domestic case can often provide significant benefits to everyone involved–with the right mediator, that is. First, let us briefly discuss what mediation is, and is not. Mediation is defined (by Black’s Law Dictionary) as “a private, informal dispute resolution process in which a neutral third party, the mediator, helps disputing parties to reach an agreement”. In essence, it is simply a facilitator of communication and compromise between those in conflict. A cooler head is so often needed in the emotional turmoil of custody and divorce law.

The sole downside to mediation is that it is not binding on the parties and not enforced as would be a judgment in court. The local sheriff will not help in effectuating a mediator’s judgment, because frankly there is no judgment at all. Mediation is still a highly effective tool, and I will lay bare the reasons that I strongly believe it more often helps than hurts.

  • Court dockets are slow, mediation can resolve dispute quickly. A good mediator knows how to lean on both parties and seek middle ground within weeks, not months and even years. Time is precious and domestic court cases are not sensitive to how much of it you will spend.
  • Mediation is private. Do you want harmful allegations and bare emotion made a part of public record? It does not take much for anyone who looks to see all of the details of a nasty court case, whereas mediation is confidential and private.
  • Mediation can (not always, but most often) save you attorney fees and protracted litigation, multiple court appearances, and the stress that accompanies them.

I would like to state unequivocally that a good mediator be neutral yet decisive and be able to exert pressure on each party to compromise. One of the best domestic mediators is going to be John Grant III, a recently retired Rankin County Chancery Court judge. He now works for the Shows Law Firm in Flowood, Mississippi and embodies all of the qualities an effective mediator requires. I am not being compensated in any way for this opinion, and want to be clear that my thoughts are a result of having practiced in front of him for well over a decade. He is thoughtful, neutral, and will push to resolve domestic disputes confidentially and in fairness to all.

Matthew Poole Speaking at National Business Institute Seminar on Divorce Practice and Procedure

I want to briefly mention that I will be speaking on divorce practice and procedural issues at the National Business Institute Continuing Education Seminar on July 18, 2019 at the Marriott Hotel, downtown Jackson, Mississippi. I am joining 5 other lecturers for the “Family Law A-Z” seminar and look forward to (hopefully) making some sense of the steps in simplifying a path to a clean, stressless divorce which can save your clients, or you, time money. I hope to make this as fun, yet informative as possible. My fellow lecturers and I will surely have some insight that is useful and practical for domestic practitioners.

Matthew Poole is a Jackson, Mississippi domestic attorney and nationally recognized expert in the area of custody and divorce law. He was admitted to the Mississippi Bar in 2004 and is located in northeast Jackson.

Child Custody Challenges Equal Danger + Opportunity

Tuesday, January 8th, 2019

Happy 2019 to everyone reading this post. I am truly amazed that thousands of people read them every month, in large part thanks to Google and its reach. That is truly humbling to know and I thank you all for spending the time– it truly makes writing rewarding. Now, on to one of our very favorite topics…..legal realities.

Anyone who is familiar with our blog knows that we enjoy debunking myths. I am certain that most people that contact us in a disputed divorce that is also coupled with disagreement about child custody, be it joint or primary custody, visitation with their kids, and so forth, are looking for easy answers. Some even think that we sneaky lawyers have a form you can fill out and submit it to the court to obtain custody. Some feel we are holding back for profit. I assure you, that is far from legal reality.

H.L. Mencken (for those of you not familiar with the now deceased journalist, look him up on Wiki…he was controversial and improper at times, but often right) once noted that “For every complex problem, there is a solution that is simple, neat, and wrong”. Americans, especially litigants, love simple solutions and immediate gratification. We are all made that way to some extent or another, myself included.

If I had to guess, over 90 percent of people seeking child custody advice are looking for a quick, cheap solution. Dealing with the rights and protection of children and what is best for them is never that simple. Children obviously bring a new dynamic to parent lives and therein lies the rub. All hope is not lost though; you may, and likely do have opportunity to better your children through the rough sea of custody litigation.

Although there has been significant debate about the interpretation of the Chinese word for “crisis”, often interpreted as “danger and opportunity”, the concept holds basically true in the narrower context of child custody litigation. So, you are probably asking yourself “what is the best advice for the parent fighting for custody, Matthew?”

My tip is a simple one: spend your energy not looking for a simple solution, look for the best solution for you and your kids. And remember, it is a whole lot easier, cheaper, and less stressful to get professional legal advice and do it the right way the first time. Going back and trying to undo what has been done is always the tougher path.

Think of it like this: It is far easier to build a home on a piece of cleared land than to go demolish an old house, clean all the debris and then start from scratch. Trust your instincts about the legal advice you get. And if you sense a lawyer is simply trying to get paid and push you into a prolonged battle, do not walk away, run. The opportunity to get it right may only happen once.

Matthew Poole is a 2018 Top 10 rated Mississippi domestic attorney by the National Association of Family Lawyers, 2004 Finalist of the Copeland Cook Taylor and Bush Trial Competition, and 2001 Millsaps Second Century Scholar.