Archive for March, 2020

Prenups Made Easy

Monday, March 16th, 2020

For starters, let me be clear that no one (hopefully) gets married with an exit plan…it’s just plain pessimistic, right?  Maybe so, but it is also important to have clarity going into marriage no differently than going into a business arrangement.  I have put together a very straightforward antenuptial agreement (more commonly called a prenup) for your perusal.  It is for informational purposes only and may not suit your situation, always consult with an attorney.  Notice that custody issues are not present.  The reason for that is that the court will not honor these…they only follow existing law and any contract regarding custody and visitation is not valid.  So, take a look.  I hope it is helpful. 

THIS AGREEMENT AND CONTRACT made on this the ____ day of ___________ 20____, by and between                         (hereinafter from time to time referred to as Husband), and               (hereinafter from time to time referred to as Wife), 

W I T N E S S E T H: 

WHEREAS, the parties hereto contemplate legal marriage in the State of ___________________, and residence in the State of Mississippi; and, 

WHEREAS, it is their mutual desire to enter into this agreement and contract whereby they will regulate their relationships toward each other with respect to certain property owned by the parties and in which they have an interest; and, 

NOW, THEREFORE, for and in consideration of their marriage and the premises herein, it is agreed as follows: 

Wife, now owns in her own right certain property and owes certain debt described and valued in that attachment hereto, Exhibit  A,  consisting of 1 page.  

It is mutually agreed and contracted between the parties hereto that the property and debt  described in Exhibit A shall be and does constitute a separate estate and obligation belonging solely to Wife, and Husband shall have no right, claim, interest, or obligation whatsoever in, to, or for any portion of said property and debt. In consideration of said marriage, Husband waives and relinquishes any and all claims to homestead, widowers allowance, right of inheritance, right to renounce surviving spouses will, equitable distribution in case of divorce, (including, but not limited to the marital home doctrine), and any other right in and to the aforesaid property or any additions to or appreciation in said property or any portion thereof and any income generated therefrom, which might have vested in him by virtue of their marriage, in absence of this agreement. 

II 

It is further agreed and understood by and between the parties hereto that in the event Wife, should sell, transfer, swap, trade, or exchange any of the property described in Exhibit A, then the consideration received therefor by Wife, whether cash, personalty, realty, or otherwise, shall be substituted in the place and stead of the property described above, and Husband shall have no right, claim, or interest in and to the substituted property or its income. 

III 

Husband, now owns in his own right certain property and owes certain debt described and valued in that attachment hereto, Exhibit  B,  consisting of 1 page. 

It is mutually agreed and contracted between the parties hereto that the property and debt  described in Exhibit B shall be and does constitute a separate estate and obligation belonging solely to Husband, and Wife shall have no right, claim, interest, or obligation whatsoever in, to, or for any portion of said property and debt. In consideration of said marriage, Wife waives and relinquishes any right in and to the aforesaid property or any additions to or appreciation in said property or any portion thereof and any income generated therefrom, which might have vested in her by virtue of their marriage, in absence of this agreement. 

IV 

           It is further agreed and understood by and between the parties hereto that in the event Husband, should sell, transfer, swap, trade, or exchange any of the property described in Exhibit B, then the consideration received therefor by Husband, whether cash, personalty, realty, or otherwise, shall be substituted in the place and stead of the property described above, and Wife shall have no right, claim, or interest in and to the substituted property or its income. 

The parties hereto mutually agree that any and all property hereafter owned or acquired after their marriage (with the specific exceptions of the property owned by Wife and Husband and listed in those attachments hereto plus any additions to or appreciation [including active and passive appreciation] in said property and any income generated therefrom) shall constitute the parties marital estate, and shall pass outside this contract and agreement.  As concerns such property acquired by the parties after their marriage, each party shall retain such rights as vested in them by virtue of such marriage, including but not limited to all homestead and inheritance rights. 

VI 

Each party hereto acknowledges that the other shall have the full right and authority, in all respects the same as he or she would have if unmarried, to use, enjoy, manage, convey, mortgage, and dispose of all of his or her present and future property and estate and its income as described in Exhibit A and B hereto, of every kind and character, including the right and power to dispose of same by last will and testament. 

VII 

In case of a divorce, whether agreed to by the parties or pursuant to order of a court of competent jurisdiction, Husband agrees to provide the Wife the sum of $20,000 within 6 months to the wife as lump sum alimony if the parties have one child in their custody, and an additional $10,000 for each child thereafter.  Child support is separately by statute provided under MS Code Annotated (1972, as amended). 

In addition, in case of a divorce, whether agreed to by the parties or pursuant to order of a court of competent jurisdiction Husband agrees to provide Periodic Alimony to the wife for the period of one year in the amount of %15 of gross adjusted income as defined by applicable statute after issuance of a final decree of divorce so long as she remains unemployed full-time, defined as 32 hours minimum per week.    

VIII 

In case of divorce, Husband agrees that he will not be entitled to any of the property or any additions to or appreciation therein or income therefrom as set forth in Wife’s financial statement attached as Exhibit A and that said property, or the worth thereof shall not be considered in determining the amount of relief to which he may be entitled, and he reiterates that he is foregoing, relinquishing, and waiving any and all claims for alimony, either lump sum or periodic, and separate maintenance or other support from Wife. 

In case of divorce, Wife agrees that she will not be entitled to any of the property or any additions to or appreciation therein or income therefrom as set forth in Husband s financial statement attached as Exhibit B, and that said property, or the worth thereof shall not be considered in determining the amount of relief to which she may be entitled, and she reiterates that she is foregoing, relinquishing, and waiving any and all claims for alimony, either lump sum or periodic, and separate maintenance or other support from Husband. 

IX 

Notwithstanding the provisions of this agreement, either party shall have the right to transfer or convey to the other any property or interest therein which may be lawfully conveyed or transferred during his or her lifetime, or by will, or otherwise upon death, and neither party intends by this agreement to limit or restrict in anyway the right and power to receive any such transfer or conveyance from the other. 

           This agreement is entered into by each party with the full knowledge that the other, has a separate estate, and no claim or demand can be predicated upon the fact that there has been any misrepresentation or concealment as to the amount and condition of said separate estate. It is expressly acknowledged by each party that he and she consider the amount fixed herein to be the sufficient participation in the estate of the other. It is expressly stated that each party hereto has sufficient general knowledge of the condition of the estate of the other. It is expressly stated that each party hereto has confidence in his and her own ability to hereafter acquire property in his or her own right to which he or she may look for support and inheritance to justify making and entering into this agreement. 

XI 

           This agreement is to become effective only upon the date of the marriage of the parties hereto. 

XII 

Each party acknowledges that he or she has had the opportunity to be represented in the preparation of this agreement by counsel or other advisers of his or her own choosing; that he or she has read this agreement; and, is fully aware of the contents and consequences of this agreement.  Husband is represented by Matthew Poole, Esq.  Tax advice is rendered to neither party. 

XIII 

This agreement shall be binding upon the heirs, legatees, devisees, and personal representatives of each of the parties. 

XIV 

The parties agree that should any paragraph or section of this agreement be held invalid by any court, such holding shall not affect the validity or enforcement of the remaining sections or paragraphs. 

XV 

This agreement and contract consisting of 8 pages plus exhibits thereto, constitutes the sole and entire agreement of the parties hereto, and all representations or agreements prior to or contemporaneous herewith are hereby merged herein. Further, this agreement and contract can only be changed or modified by a writing executed with the same formalities as the instant agreement and contract. 

WITNESS OUR SIGNATURES on this the _____ day of _____________, 20_____. 

    ____________________________________ 

                                                                 Husband  

____________________________________ 

                                                                 Wife 

STATE OF MISSISSIPPI 

COUNTY OF _________________ 

This day personally appeared before me, the undersigned notary public in and for the state and county aforesaid, the within named_____________________, who acknowledged before me that he signed, executed, and delivered the above and foregoing Antenuptial Agreement on the day and date therein mentioned for the purposes therein stated, as his own voluntary act and deed. 

Given under my hand and official seal on this the ______ day of _____________, 20_____. 

_______________________________________ 

NOTARY PUBLIC 

My Commission Expires: 

STATE OF MISSISSIPPI 

COUNTY OF ______________ 

This day personally appeared before me, the undersigned notary public in and for the state and county aforesaid, the within named ____________________, who acknowledged before me that she signed, executed, and delivered the above and foregoing Antenuptial Agreement on the day and date therein mentioned for the purposes therein stated, as her own voluntary act and deed. 

Given under my hand and official seal on this the ______ day of _____________, 20_____. 

_______________________________________ 

NOTARY PUBLIC 

My Commission Expires: 

Jailing the Cheating Spouse AND Their Lover?

Monday, March 9th, 2020

Is it possible to have your cheating spouse and their paramour thrown in jail for fornicating with someone other than you?  It seems like an antiquated concept, right?  This relatively recent state law has some strong similarity to the punishments enacted on cheating women in days of old (like in the famous novel “The Scarlet Letter”).  So, let’s dive in and take a hard look at the criminal component of adultery by examining the language of this relatively new state statute (remember, the MS Code has been around for about a century now).

MS Code § 97-29-1 (2013)

“If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.”

Many of you are probably thinking the same thing…here is my chance to punish that cheating low-life and that loser they are cheating with.  Is this statute ever even enforced?  It is very tempting to exercise this potential weapon which allows the possibility of prosecution for bad behavior..after all, no one likes a cheater.  Who would have thought to press charges for adultery after all…it is certainly a novel concept and one that is rarely, if ever utilized.

I spent a bit of time looking for relevant Mississippi cases where someone has been prosecuted for a violation of this code section (statute) and found exactly zero of them (sidenote:  the databases only reflect appeals so there may have been a small handful where the person chose not to take an appeal, but not likely).  Years ago there was in fact a statute that has subsequently been overturned that made extensive communication, even without fornication or other sexual acts with a married person a crime and was dubbed as “criminal conversation”.  That law has since been overturned by the Supreme Court of Mississippi.  Wow, how times have changed.  In the modern era of internet communication, we may all have been found guilty at some point in time.

While we have certainly taken a step back in terms of the magnitude of the codification of crimes as they relate to state statute, not seeing a single prosecution of crimes regarding adulterous or potentially adulterous behavior is somewhat surprising.  Even now, the standard is lighter in terms of what one must prove to show that a crime has been or is being committed…but the outcome is still that zero people have ever sat in a jail cell for adultery is the new reality.  Many will ask why this is the case, and for good reason. 

My final thoughts are pretty simple–and somewhat obvious to those who follow the criminal justice system.  First, there are simply not enough jails to house all of the cheaters out there.  Prosecutors have bigger fish to fry (rape, murder, assault)… everyday.  Although the legislature has made clear their position as to the seriousness of adulterous acts, enforcement is not quite so easy.  If we prosecute every cheater, as a society we will likely be too busy to pay attention to the violent crimes that run so rampant.  There is only so much space in the county lockup.

On a positive note for those of you dealing with a cheating spouse, you can take advantage of the public policy against your cheating partner by pointing to the chancery court that an actual crime is being committed.  It may not land the cheater, or their lover in jail, but at least it will magnify the gravity of your situation and potentially reap a better civil outcome.  After all, do not forget that public policy is on your side, at least this time.

Top 3 Questions That Family Lawyers Hear…Daily

Tuesday, March 3rd, 2020

In the course of practicing family law, divorce, and custody for close to 2 decades, I have come to realize that the same questions tend to reappear in most domestic cases…and few of them have simple answers.  It often seems that callers and potential clients believe that domestic fights are solvable like math equations…that a clear answer exists if the numbers are plugged in correctly.  That belief is not accurate and is likely the result of our human desire to have clarity in life–an understandable goal.  As someone facing a custody battle, a divorce, or other difficult domestic case, I would like to help in preparing you for what your lawyer of choice wants you to know.  I have been through a personal custody battle and won, but it was stressful and taxing in more ways than one.  Here and the most common questions we receive, and some of them are not what you might expect.

Q-1:  Would it help to speak to my ex/husband or wife about what terms they would agree to?

A:  Absolutely…the cost of separating and children being involved will depend on how many issues you cannot agree on, the conversation is mandatory to save costs.  MAKE SURE that insurance (health and life insurance on the payor of support) and college costs are a part of the conversation, and these expenses would be in addition to state mandated child support.  This matters are seldom agreeable between people who are already financially squeezed (98% of the population at least).

Q-2:  My spouse and I agree to a divorce but do not agree on who keeps the house/pays the debts/gets the kids/amount of child support (this list can literally go on forever).  Can we not just agree to a divorce and make it simple?

A:  It likely won’t save you any money or time to simply agree to a divorce, although you can resume single life and join the dating world again if that is the path you prefer.  The court could and will grant a no-fault divorce under most circumstances but you still have a long row to hoe if there are financial and custody issues on the line.  It seems like the divorce would simplify those matters, but it will not in most cases.

Q-3:  Why is it fair that he/she is a terrible parent but I have to spend my money to prove that to the court?  Is there a way I can just show the judge my evidence and make this all go away?

A:  Unfortunately no.  This one reminds me of the old saying, “The best and worst thing about the judicial system is that everyone can have their day in court”.  The rules for presenting evidence are very strict and formal, and there would not be so many lawyers if in fact we could casually show the court one side and get a result.  You would not be happy if your ex did this and the shoe was on the other foot.  The bottom line is that the court should and will start with no assumptions about you or your significant other.  They serve one role…neutrally deciding matters brought  before them.

What are my big picture takeaways from these three common questions?   A few things, but most importantly is that people in a state of denial about the complexity of child custody, the financial ramifications, and the difficulty of severing a marriage will continue to languish and may very well stay married for a long time.  It is crucial to get past the fiction of looking for a simple answer. 

Realizing that you have a complex problem is always the first step in addressing it–head on.  And, without any exception, lawyers like myself realize that without putting some pressure on the opposition (the more the merrier), you will have no option but agreeing to whatever they offer.  In the end, trying to agree to fair terms is always best…but not everyone is entirely reasonable, particularly when they are in a highly stressful and emotionally draining situation.