Archive for November, 2019

ALIMONY IN MISSISSIPPI – AN OVERVIEW

Monday, November 18th, 2019

By Michael Louvier

The subject of Alimony has been often discussed on this site; however, it is always appropriate to review such an important topic.  With that in mind, please allow a few paragraphs to set forth the general guidelines of Alimony.

                The Mississippi Supreme Court set forth the guidelines for an award of alimony in Mississippi divorce cases in the case of Armstrong v. Armstrong, 618 So.2d 1278 (1993).  They are:

  1. The income and expenses of the parties;

  2. The health and earning capacities of the parties;

  3. The financial needs of each party;

  4. The obligations and income of each party;

  5. The length of the marriage;

  6. The presence (or absence) of minor children in the home, which may require that one or both of the parties either pay or personally provide child care;

  7. The age of the parties;

  8. The standard of living of the parties, both during the marriage and at the time of the support determination;

  9. The tax consequences of the spousal support order;

  10. Fault or misconduct of either party;

  11. Any wasteful dissipation of assets by either party, or;

  12. Any other factor deemed by the Court to be “just and equitable” in connection with the setting of spousal support.

This list of criteria, of course, can be found on a myriad of web sites and searches.  That said, I believe it is still useful to spell them out – to have them in plain writing before going forward with any analysis of the “Armstrong factors”.  As always, this medium does not lend itself to an “end all – be all” examination of this or any subject.  Rather, this is meant for you, the reader, to become a bit more educated on the subject matter while allowing me, the writer, to delve topic by topic into some of the real nuts and bolts of domestic relations practice.

I am personally very intrigued by a specific few of the above listed items, more so than the others and they are:  numbers 8, 10 and (almost “of course”) 12.  The use of the word “OR” between 11 and 12 instead of the word “AND” is also very interesting to me.  Let us explore.

I’ll start with number 12.  This provision is commonly referred to as a “catch all” by attorneys.  Whenever the Court uses the phrase “any other factors…”, this is an open invitation for the Chancellor to interpose his or her own beliefs about the case into the decision.  This is not necessarily a bad thing, as there may be something that is revealed in the case that screams for the award of, or the denial of alimony that does not quite fit into the other 11 specific factors.  And the Chancellor’s discretion should always be allowed, to some extent.  After all, the Chancellor is the finder of fact in the case – the Judge and the jury.  Some would argue; however, that this unilateral type of discretion inherently lends itself to grounds for appeal – whichever way the Chancellor decides.  As Voltaire so eloquently said:  “power corrupts, absolute power corrupts absolutely”. 

A Chancellor should never use this last provision as the deciding factor, lest we believe that the possibility of corruption in this important decision be present, or even possible.  Far be it from me to suggest that a Chancellor would favor one side over the other for 11 factors and then choose to employ the catch-all to rule against that party…in fact my cursory research tells me that such a situation has not been reported in Mississippi Courts.  Good.  As it should be. 

Factor number 10 is interesting to me for the simple fact that marital misconduct can give rise to grounds for the divorce itself, without which there can be no claim for alimony in any form.  Therefore, a party found to be responsible for marital misconduct (drug abuse, an adulterous affair, habitual cruel treatment toward the spouse, etc) can be penalized twice: once in the granting of the divorce and again in the award for alimony.   

Factor number 8 is intriguing because we are all aware that financial difficulties leads to many, if not most divorces.  Therefore, if the standard of living that a spouse has become used to during the marriage is the main reason for the breakdown of the marriage; that is, a couple is living well beyond the means of the main bread winner and that causes or contributes to the demise of the marriage, should the bread winner be Ordered to continue to provide that lifestyle for the ex?           

                Finally, the use of the word or at the completion of the list of factors indicates that the Court can Order alimony based on only a few, or perhaps even only one, factor being present.  This is unlike a case where child custody is the issue and the Albright factors are used as a kind of “score card” for the Chancellor to make a decision.  As discussed above, the Chancellor can employ only one factor or maybe a few, to determine whether or not a divorce should be granted and whether or not an award for alimony is appropriate. 

Michael Louvier received a Bachelor of Arts (Political Science) from the University of New Orleans, 1988 and a Juris Doctorate from Mississippi College School of Law, 1994.  He has been married to Tammy Luquette Louvier for 29 years and they have 2 children:  Amy, 25 and Nicholas, 21.

Married and Mourning? Consider This First

Monday, November 11th, 2019

Sociologist Linda J. Waite and several contributing authors wrote a peer-reviewed study looking at several assumptions about happiness before and after dissolution of marriages that were deemed to be unhappy by the study participants…both women and men. It is 44 pages long and exhaustively looks at a variety of issues anyone contemplating divorce should consider. It is published by the American Institute of Family Values and can be downloaded from their site as a pdf. file. The article title is “Does Divorce Make People Happy?”. Googling the title and author will be worth your time if you are considering a divorce. It is the best in terms of both randomization and completion that I have seen to date for a variety of reasons.

One narrative that has been often floated in modern society and media is that women tend to be happier than men after divorce and tend to be more likely to remarry. There is some related information published by authors of smaller case studies than the Linda Waite study I reviewed over the weekend. The case in point looks at over 10,000 divorces…by far the most I have seen examined and followed up upon yet. Many of the other surveys utilized much smaller statistical samples, some even less than 800 couples.

I am no statistical genius, but I do know that larger randomized samples are more reliable. Of course, the manner in which the questions are asked also creates some interesting disparity and issues regarding the quality of random samples. For instance, if we pulled a sample from only New York City, the study is flawed and so are the conclusions. That is not a representation of all marriage…the geography imparts social values that are unique by law and culture. Statisticians consider this need for actual randomization crucial to the Z Factor and other measures of the strength of a correlation.

I suppose many would argue that imparting a person’s gender into this conversation is irrelevant, but I disagree. I firmly believe that men and women most often bring very different mindsets into the divorce process. Their results often vary based upon child-rearing and income as well. Although no two cases are exactly alike, the theory that women are happier and that their ex-husbands are more likely to be miserable seems a bit suspect. Both tend to suffer at a nearly equal rate after divorce in my experience.

After looking at Ms. Waite’s extensive work in detail, it is more clear to me that two conclusions can be drawn.

Conclusion 1

Very few people of either sex are extremely happy with their decision to divorce. Most often there is some degree of second-guessing that occurs and the level of doubt truly runs the gamut. Happiness is not easily attained by divorce alone. Constrained finances, increase in cost of living, and, as a truism, two really can live cheaper than one are in play. Also, sharing the kids and the associated expense is not exactly an easy task.

Conclusion 2

There is little difference, if any, related to gender. In other words, the narrative that women move on more easily is not well-substantiated by this enormous study.

I wish I had a clear answer as to why the differences in the data are often so glaring. It seems to me that some of the studies which are not reviewed by peers are questionable. Some even seem to encourage divorce for women. I have yet to find any similar studies finding that men move on more easily. It is truly puzzling. Although I am not sure that the studies indicating women happiness after marriage are what Trump would call “fake news”, there are certainly some yellow (maybe even red) flags to recognize.

In the end, it seems to me that divorce is far too personal and complex to allow people who do not know you intimately give their opinions without scrutiny. If an article/study seems to have an agenda, be cautious. If an attorney appears willing to push you in the direction of divorce, trust your instincts first. It is always easy to seek support and comfort in this difficult time, but do not forget that you are still most likely vulnerable and open to suggestion more than you are in a calm state of mind.

Encouraging or glorifying divorce is almost never the right way forward. Sometimes it is simply a last resort to protect the happiness of both you and your children. The best, most reliable social science has only one agenda…not having an agenda at all.

How Chancery Judges Decide Your Fate

Friday, November 8th, 2019

Reflecting on 16 years of practice in Mississippi Chancery Courts has led me to an understanding of what it takes to win a close case.  Chancery judges are not always an easy read, but there are certainly some common themes that play out when seeking a positive result.  Child custody and divorce are not simple matters and require a great deal of preparation in order to walk out of the courthouse with a victory.  It always amazes me that some believe there is a simple solution to a very complex problem.  Simply put, there are a lot of moving parts and angles to approach.  So, what are the common denominators?  Some may not be exactly what you would expect.

Years ago, I had a particular judge in the northern part of our state that I could not seem to get to see my point of view…ever.  It was a frustrating experience.  Although most litigation is on a razor’s edge (a close call, or it would have been settled), even the calls that seemed to be clear I would get the shorter end of the stick. 

Toward the latter point in litigating a custody fight in front of this frustrating judge, a good friend gave me some advice that I will not ever forget.  Essentially, he said, “Matt, next time you go in front of this judge, act as if you think they are the best judge on the planet…that you have incredible respect for them and their decision-making ability.  It sounds silly, but it works”.  And it did work.  Suddenly I was winning the close calls.  My frustration was working against me the whole time, unbeknownst to me.  Law is more art than science.

It is so true that in many ways litigation is a replication of general, simple life principles.  Chancery judges are very quick to spot dishonesty and a vindictive persona.  It is important to remember that having a client that is hell-bent on destroying their spouse/ex is not an easy endeavor.  I cannot stress enough the importance of attitude.  If your client is calm, collected, even sad, those things resonate with the court.  When they walk in pounding on the table and angry, the lawyer had a much more challenging task.  People often forget that the judge has heard more fussing in a month than they have in their entire life.  Make them want to listen to you by being the cooler head in the room…it works.

As a final thought, it is absolutely imperative to ensure that you bring credible witnesses with you.  I cannot count the times that an opponent brought a convicted felon to testify for them, or even someone with several misdemeanors.  People who have lost custody of their kids do not exactly make great witnesses either.  It is amazing that some attorneys do not properly vet the witnesses they call to the stand.  I would even argue that bringing the wrong person to testify has not a neutral but a negative effect because it reflects poor judgment on the client…and the attorney who called the less than magnetic witness. 

There is an old saying…”Those who can see have the world in common”.  When you get to court, never forget that the judge is more reliant on common sense and intuition than law.  Although to some it may seem unfair, they are going to find a law to justify their decision, one way or another.  Don’t be a victim of your own emotion and you will come out with a fair result every time.  After all, law is more art than science.

Matthew Poole is a Jackson, Mississippi Domestic Attorney and single father.  He has managed over 1,300 family law matters since 2004.