Archive for May, 2019

Ever-Relevant…The World Wide Web

Sunday, May 26th, 2019

By: Michael Louvier

Does anyone even remember when we referred to the internet as the “World Wide Web”? That is where the “www” in the site addresses that we all visit daily originated. Back then we tried to be cool and called it “The Web”… That was back in 1990 something prior to Al Gore inventing the internet (rumored, yet to be proven).

Today the internet is as commonplace as travel by automobile. Google and Google Maps have completely replaced the phone book as the easiest and most used methods of finding a business. The computer that we all carry around in our pockets (commonly referred to as a smartphone) will deliver you the phone number, web address, ratings, directions to and almost any other information that you could possibly desire about a business. The Yellow Pages have gone the way of the buggy whip. If you don’t immediately what a buggy whip is (or was), that’s my point.

Immediate and almost unlimited access to information is what the internet delivers. Prior to the “immediate information age”, lawyers actually had to research the law in books. By using the correct search tools and key words, recent and relevant case law is literally at the lawyer’s fingertips after proper training. Today lawyers and law firms save untold amounts of money on books and paper, and they save even more time and money (client’s money, thankfully) by utilizing the internet for legal research and the online filing of pleadings, motions and other case related Court documents. A lawyer may now “e-file” a pleading in a case from his home or office laptop computer. Furthermore, he can accomplish this task at any time of the day or night, regardless of whether or not the Clerk of Court is open. Alas, the internet has made the modern law office much more streamlined and efficient.

Please do not interpret the phrase “streamlined and efficient” to mean that your divorce and/or custody case will now be “easier” or even “less complicated”. Quite the contrary, the internet has made the profession of law more complicated and more competitive than ever. The fact is, everyone has access to this information. Everyone has become more streamlined and efficient. Lawyers, litigants, Judges, and even the children caught up in a custody battle have more information at the ready than ever before. The onus is; therefore, on the lawyer to be well prepared to use this wealth of information or, if the facts gathered by the other side via the internet (Social media) are harmful, he/she must be somehow savvy enough to not allow it to burn his or her client.

As Matthew Poole has previously stated in his article “Facebook: The Great Divorce Equalizer” (posted April 14, 2019): “…a decent lawyer is only a subpoena away from obtaining every social media post and response thereto since the day you walked down that sacred aisle.” More to that point, a Subpoena Duces Tecum served on the wireless provider will provide data regarding texts and calls – that is: who texted or called whom, and when, and how long was the conversation, etc.

This information can, of course, be very damaging to the divorce litigant with that “special someone” waiting in the wings as they text love notes to each other at 2:00am. This data could certainly be used to show that a parent has no idea that the teenager at issue in the custody battle is also texting and calling and snapchatting at all hours of the night and day – during school hours and instead of studying. This could be used to demonstrate a lack of willingness to actually “parent” the child or, even worse, the lack of ability. The Albright Factors, by default, as discussed on this blog site many times, just got introduced to the digital age and the 21st century.

As the love interest in the movie “The Social Network” (2010) told Mark Zuckerberg, founder of Facebook: “it’s the internet…its written in ink”. So be aware of your digital footprint, as it is very easy to use against you in Court, or in your favor if your lawyer is inclined to do the dirty work against your ex for your benefit.

Michael Louvier was born in 1965 in Metairie, LA, graduated from Brother Martin High School in New Orleans in 1983, received a B.A. from University of New Orleans (1988) and a J.D. from Mississippi College School of Law (1994) and is a regular contributor to the blog tab on the world wide website of attorney Matthew S. Poole – www.mspoole.com. If you are reading this, then you obviously have access to the internet and are on the site. Odds are, you are no longer depending on a “dial-up” modem to support this visit. Please include this site into your favorites list and click onto this site often. And may the force be with you. (Sorry, I could not resist a 1970’s reference).

Michael Louvier is married 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).

TAGS: Family Law, Subpoena, Custody, Divorce, Social media, Albright factors

THE DEPARTMENT OF HUMAN SERVICES – SOME FACTS AND SOME FICTION

Monday, May 20th, 2019

By: Michael Louvier

“The Mississippi Department of Human Services is dedicated to serving others while providing a wide range of public assistance programs, social services and support for children, low-income individuals and families. The agency seeks to empower families so they can become self-sufficient and responsible for their future success.” (Source: MS.gov)

The family law office of Matthew Poole fields many telephone calls and emails with a similar message: The DHS is handling a child support case for me and they aren’t doing anything. Before you roll your eyes and assume that this article is a “hatchet-job” against the DHS, please understand that this is not at all my intention. Fact is, the DHS has many hard working and dedicated case workers and social workers who are doing the very best that they can. As with many of our government employees, both State and Federal, they are very often over-worked and under-paid.

With that said, let me get right to the actual point of the article: What the DHS does and what they don’t do, as it relates to a child support case.

The Department of Human Services acts as a “debt collection agency” for the State of Mississippi. That is, the child support division, through the many case workers and attorneys, strive to enforce the statutory guidelines regarding child support against punitive parents. This usually means fathers of children, either unwed or divorced, who are neglecting to adequately provide financial support for their children. The DHS will take on such cases, free of charge, for individuals who qualify. And that is the key element to this difficult equation: there are so very many individuals who qualify because of their low income. It stands to reason that the lower income single parent needs the child support funds more urgently than the DHS can accomidate. This fact creates a “Catch-22” (my apologies to Joseph Heller) in that these cases are of vital importance to the parent trying to raise a child (or in many instances children) without sufficient funds and yet the DHS is overwhelmed by the sheer numbers of cases in each and every county throughout the State of Mississippi and; therefore, the system is slow and the receipt of these vital funds is delayed. The longer the delay, the more vital the funds become. And this circular pattern continues and will continue ad nausium.

Once a Judgment for Support has been obtained by the DHS through the Chancery Court of the county wherein the child (or children) resides, there are several ways that the Judgment can be enforced. The most common way is through wage garnishment. The DHS can garnish the pay of the punitive parent as much as 35% of the paycheck. Unfortunately, many of these fathers simply change jobs, and now the DHS must become “private investigators” to seek out and find the new place of employment. This game of cat and mouse is very common. Another tool at the disposal of the DHS is the interception and seizure of any tax refund that the punitive parent is entitled – State and/or Federal. This power is quite effective, unfortunately it is only a “once-a-year” tool. The DHS can have the driving privileges of the punitive parent suspended. And finally, if the amount owed becomes substantial enough and there is no reasonable efforts to pay, the punitive parent can be incarcerated. These last two measures are an effective motivation for a parent to pay; however, if these options are employed by the DHS, this does nothing to financially support the child. The punitive dad is now driving on a suspended driver’s license or worse, he is in jail…but little Johnny is still going to bed hungry.

Over-worked with massive and ever growing case loads, while seldom appreciated and most definitely under-paid and for the reasons stated above often incapable of making a real difference – this is the unfortunate status of the Department of Human Services.

Some things that the DHS cannot do for their clients (or payors) include the enforcement of a schedule of visitation, nor can the DHS dictate the manner in which collected funds are spent.

All too often, a parent will complain that his child support obligation is being satisfied (either voluntarily or though some collection/garnishment activity) however the custodial parent will not allow for any substantial visitation with the child. This is not something that the DHS will assist you with. Another common complaint is that the mother is using the child support funds on herself: getting her hair and nails done or buying new clothes for herself but not the child. Again, the DHS is not interested in this type of problem. And while the DHS cannot and will not assist you with these issues that are relevant to the best interests of the welfare of the child, these are certainly NOT excuses or valid defenses for not satisfying a child support obligation.

Michael Louvier received a B.A. from University of New Orleans (1988) and a J.D. from Mississippi College School of Law (1994) and is currently a contributor to the blog articles for attorney Matthew S. Poole. Michael is married 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).

True No-Fault Divorce States…Not Mississippi

Tuesday, May 14th, 2019

It is always crucial to have a basic understanding of Mississippi custody and divorce laws before a domestic battle, or even a bare negotiation that impacts your future tremendously. Even though our state presents some unique challenges due to the fact that we are not considered to be, nor should be, a “no-fault” state, the reality is that we have laws that are protective of the sanctity of marriage and are not conducive to an easy divorce. What do I mean? You either have to agree on ALL divorce terms, or litigate by proving grounds until a final resolution is met. This is crucial because certain steps can reduce complexity and help you to save the time, money, and stress that accompany any divorce.

Mississippi differs greatly from our western neighbor, Louisiana. In that particular state, people are permitted a divorce after a sufficient time of being separated (365 days as I recall, but I am not licensed there and this should be noted), and Mississippi is not anywhere close to following that rule of law. As a matter of fact, Mississippi residents, even though not entitled to a divorce after any length of separation, are generally not any worse off than our westerly neighbors unless they have no kids or significant property holdings. Simply put, you either prove grounds for divorce or must agree to all terms……custody, child support, division of all property, insurance, alimony……you get the point.

I cannot state how many people contact me for a “no-fault” divorce without realizing that, although inexpensive, requires total and complete agreement. Frankly, that dynamic can be quite frustrating for any domestic lawyer. My advice to you is to at least make a short list of the things you can agree on prior to separation so that your case can be made more simple, and thus less expensive. At the very least, it will assist your lawyer in forming a solid game plan for successful resolution.

In our state, do not forget that there is not much leeway in negotiating the child support aspect of you case if you are not the primary custodian. If you have 1 child with the spouse, you will pay 14% of gross “adjusted” income, 20% of same for 2 children, and 22% for three, for instance. This begs the question of what the “adjusted” portion means, and that is an excellent question. Without boring you to sleep with a tremendous amount of legal jargon, it will generally consist of post-tax income but adding back to that retirement withholdings and other non-mandatory items that are not required by law. That is about as clear as I can make that point so that non-lawyers have a general idea of what to expect from a custody proceeding.

My advice is as follows: Have the conversation about your post-divorce life plan with your spouse before calling an attorney, particularly when kids are involved. Produce all financial documents to your husband or wife so that there are not accusations of untruthfulness. Consider insurance, college, and future expense thoroughly. And last, but certainly not least, never hold a grudge, it simply prolongs your own pain and expense through one of the toughest times in your life.

Matthew Poole is a Jackson Ms. family lawyer with 16 years of experience.

New Custody Rules…And Similar Advice

Wednesday, May 8th, 2019

Child custody cases are never easy. Oftentimes they require a year or more of litigation and many, many thousands of dollars. There have been several recent developments in Mississippi law that will affect each and every child custody case in this state, some are meaningful and will make a major impact, others will not. Custody matters are never straightforward and and those who believe they are simple likely need a straight-jacket and some serious psycho-therapy. And this is the reality when child custody is front and center in your life.

Easy advice is not readily available for those who are seeking simple solutions. There are a few recent changes to both statute and common law that will impact any child custody case in our state, although they rarely make outcomes differ. The basic paradigm is still in place…the best interests of the children will always be paramount. We have a piece of advice that is entirely obvious and commonly ignored…follow the existing court order precisely, do all you can for your kids, and never, ever fail to exercise visitation when it is availed to you. Be as involved with the kids as possible, help with homework, and do not let a new romantic relationship impact your little ones in a negative manner.

Chancery court is the sole arbiter of who wins child custody. Chancellors are the ultimate guardians of all children in their respective jurisdictions. Even though finances are of concern as well in every divorce, the clients we have the most compassion for are those who will fight to have their kids with them as much as possible. As a single dad, I share their raw emotion. It makes the job all the better to represent like minds.

Some recent legal changes that impact custody cases in our state include changes to the alimony laws which now present previously unforeseen obstacles, the judicial decision that marijuana use is a ground for divorce under the existing statutes and now considered tantamount to opiate use, and that habitual cruelty is now more easy to prove and encompasses more bad conduct as grounds for divorce. Child custody law has also been affected by these changes to cases that also apply to childless divorces. I want to be clear that all legal decisions regarding child placement are highly subjective and dependant on a myriad of factors.

Based on existing law and the subtle changes to Mississippi custody and divorce law, I have a few simple observations and a small piece of advice. My previous article the pointed to the absolute importance of continuing care of your child is a must-read. I also would like to point to the importance of moral fitness in any custody matter. Although it is often said that only God can judge, try telling that to your local chancery judge.

Law has and always will change. Your custody case will also have a changing life of its own. Being a little behind on your child support and then asking for a modification of custody as a defense is a very precarious scenario for any litigant. Never forget that one must possess “clean hands” in order to ask to court to intervene in their domestic case. At the end of the day, two wrongs never equal a right. That never needs to be forgotten.

Matthew Poole is a Jackson, Mississippi Family Lawyer with 15 years of trial experience. He lives in Northeast Jackson with his 9 year old son, Lucas.