Pt. One. Grandparent Visitation, the Legislative Mandate…Sometimes

June 16th, 2019

Like just about any other legal matter governed by state statute, the legislature has carved out certain situations in which grandma and grandpa have a right to see their grandchildren. The right to do so is not without its limitations, nor should it be. The matter is governed by MS Code Annotated section 93-16-3 (2013), and reads as follows;

Section One:

Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.

Section Two:

Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:

(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and

(b) That visitation rights of the grandparent with the child would be in the best interests of the child.

Section Three:

For purposes of subsection (2) of this section, the term “viable relationship” means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during the time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.

Section Four:

Any petition for visitation rights under subsection (2) of this section shall be filed in the county where an order of custody as to the child has previously been entered. If no custody order has been entered, then the grandparents’ petition shall be filed in the county where the child resides or may be found. The court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney’s fees to the parent or parents in advance and prior to any hearing, except in cases in which the court finds that no financial hardship will be imposed upon the parents. The court may also direct the grandparents to pay reasonable attorney’s fees to the parent or parents of the child and court costs regardless of the outcome of the petition.

WOW…..talk about a mouthful of undecipherable legislative jargon. I want to cut through said jargon and simply point out a few key points that are applicable to the majority of those who are reading this article. No one cares to read legalise, sometimes not even the writer of this piece who, many moons ago, was not a lawyer. Let’s start by looking at the bones (basic structure) of the statute’s most commonly invoked provision.

The viability of the relationship is paramount to obtaining rights to see your grandkids. Other than the extreme scenarios mentioned in section one (1), which include death of a parent or the termination of their rights as a parent, viability is the cornerstone of the majority of grandparent litigation. As you can clearly see in section 2, the language is not entirely clear until we break down the fundamentals of the English language. The gist of it is that grandparents who have done the following are clearly entitled visitation rights:

1. Given 6 months of financial support to the child/children

2. Had a year of frequent visitation with some overnight visits as well

3. Cared for the child for a large amount of time because parents are not available due to military service or incarceration

The unusual thing that muddies the clarity of this section is that the word “or” only appears between prong 2 and prong 3…..which begs the question “do prongs one and two need to both be met? Or do they function separately?”. Even though less than clear, it appears that the legislature intended the latter…..they simply could have placed an “or” between all three prongs. Welcome to legislative lingual murkiness at its best. If you meet any one of the three prongs, you have demonstrated a viable relationship and your foot is in the door, so to speak. From there, you can begin the process of obtaining one of the most important familial rights available….time with the grandkids.

If you need help with a grandparent related legal issue, I have 16 years of experience dealing with some of the most complex related cases. Telephone consultation is always free of charge.

Matthew Poole is a 2001 Millsaps Second Century Scholar and 2003 Finalist at the University of Mississippi School of Law annual Steen, Reynolds, and Dalehite Trial Competition. He will speak to members of the bar for the National Business Institute on July 18 at the Pearl, MS Marriott.

A THREE PART SERIES ON GRANDPARENT’S VISITATION

June 7th, 2019

By: Michael Louvier

INTRODUCTION

More and more often, the calls and emails to the Matthew S. Poole law office are originating from concerned Grandparents seeking visitation rights with their grandchildren. This topic was briefly touched upon in December of 2018 (“Happy Holidays to Everyone…Especially Grandparents” posted December 29, 2018); however, I believe this subject matter deserves a much more thorough examination and explanation. To that end, in the following weeks I will submit three (3) separated blog entries dedicated to the issues related to and surrounding GRANDPARENTS VISITATION.

In the initial entry, I will discuss the specific language of Sec. 96-16-3 (Miss. Code Ann. 1972), which is the controlling statute of this matter of law. This installment may, indeed, be somewhat repetitive of the December 29, 2018 entry mentioned above; nevertheless, it is certainly worthwhile to re-examine the elements of the statute as included by the State legislature.

The second installment will explore in more depth the individual elements of the statute. Within that article, I will seek to explain what a “viable relationship” means as it relates to Grandparents and Grandchildren. I will also discuss within the second installment the importance of financial support, both before and after the birth of the child.

The final article in this series will include a discussion of certain and very specific cases recently decided in Mississippi courts. The sudden military deployment, or incarceration, or even the death of a parent can give rise to a grandparent seeking assistance to ensure that their precious grandchildren can/will visit.

There can be no debate that Grandparents visitation rights have become a more commonplace cause of action in Chancery Court. I hope to shed some light on this ever-changing subject while dispelling some myths and misconceptions. I hope that you will visit this site in the upcoming weeks to read this series.

Michael Louvier is a regular contributor to the Matthew S. Poole Website blog. Michael is a graduate of Brother Martin High School, New Orleans, LA (1983), University of New Orleans (B.A. Political Science/English 1988), Mississippi College School of Law (Juris Doctorate 1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20). Michael and his family have lived in the Jackson, Mississippi area since 1991.

Ever-Relevant…The World Wide Web

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

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

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

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.

A Day Late and Dollar Short: The Huge Custody Hurdle

April 24th, 2019

We spend much of our time talking about all of the factors that impact court custody decisions and there are certainly plenty. The Albright factors dominate much of the information we provide to prospective clients, as they should. They permeate every aspect of custody outcomes. If you look at the search bar on our site and place the word “custody” within it, it will become clear how permeating these factors are in custody law, and that they are the cornerstone of domestic litigation involving children. Is there one factor that rises above the terrain in terms of its power of influencing outcomes? My answer is…..yes.

The most important factor (aside from some extremely horrible parenting which rises to the level of abuse/neglect) is continuity of care. As an example, I have multiple times encountered a prospective client that may very well be a better parent than the alternative parent. We just received a call from a gentleman that appeared to deeply care for his 6 year old daughter and also to be a loving, concerned dad. He is responsible, has a great job and stable home. According to him, mom was not as good a parent as he. That may well be the truth. However, he waited, and waited, and waited……..6 YEARS to call an attorney and attempt taking custody from her. Big mistake. His window of opportunity has shrunk to the point of being nearly non-existent.

I must say bluntly that if you are truly the better parent, then you must act quickly and decisively. The most difficult argument for any attorney, which is entirely nonsensical (even somewhat comical) on its face, is to say to a judge, “Your Honor, my client will be demonstrated to be the better parent, although he/she left the children with the worse parent for half a decade”. Good luck selling that to any court in Mississippi. Keep in mind that the old saying “The law aids the vigilant” could not be more applicable than in child custody cases. There is a natural proclivity for any judge not to disrupt the usual routine unless an exceptional danger to the child exists.

Some may ask, “But what if I can prove that I am more capable as a parent, that I have a better home, school district, morals, etc.?”, and that is a fair question. It is a very good question and rightfully in play. If I may respond, my retort would be that the child needs stability also…….changing custody can and usually will be traumatic for them. Although a parent may well be “better”, they are unlikely to overcome the huge obstacle of not having been sufficiently “present”. Be careful about sitting on the sideline, being a day late and a buck short will be one tough hill to climb. Better parents frequently lose custody cases for this simple reason. It is most often a loss that could have been easily avoided.

In short, my simple advice is that if you are the better parent, demonstrate that fact by not leaving your child with the lesser parent. Actions truly speak louder than words, especially in Mississippi Chancery Courts.

Matthew Poole is a 2018 Top 10 rated Mississippi family attorney by the National Association of Family Lawyers, 2004 Finalist of the Steen, Reynolds, and Dalehite Trial Competition at the University of Mississippi, and 2001 Millsaps Second Century Scholar. He will speak to members of the Mississippi Bar on behalf of The National Business Institute on July 18, 2019 on divorce practice and procedure. The seminar is certified for 6 hours of legal continuing education credit.

The Truth About Costly Kids

April 22nd, 2019

I absolutely love helping parents who love their kids and to fight for what is best for them….it is the most fulfilling part of a difficult job. I can easily relate to their plights simply because I am one of the crowd. I have fought through child custody cases since 2004. When I became a father with sole custody of my son in 2009, I particularly realized that children are an incredible blessing and also an expensive addition to our lives, even for those fortunate to have better than average incomes. I began to directly relate to so many of my clients, the ones who desperately wanted to raise their children as the primary custodian. Also noted is that the raw financial data regarding child-rearing is not particularly encouraging for most folks and presents a harsh fiscal reality for most.

Are you truly prepared to be a parent? With the risk of appearing heartless, I must say many of the people who contact my office are not even able to afford a pet, and quite far from affording a child. Let alone, they often struggle to even afford themselves. According to the U.S. Department of Agriculture, the cost of raising a child until age 18 is $233,610. Mind you, this does not include college or related expenses. The monthly expense far exceeds $1,200. As much as my heart hurts for the single mom of 2, 3, or 4 kids, I also see a society in meltdown because of the failure to acknowledge the basic expenses of our children. We simply cannot sustain a broken moral system where the government must fill the gap caused by poor decision-making of moms and dads alike.

Why do I point these matters out to my readers? I do not simply expect my advice will be heeded by most people after all. I hope that the truth will resonate for a few of you. Please consider another path or plain old abstinence before expecting a lawyer to fix your terrible financial plight due to the children you cannot afford. It is not only unfair to you, but to the innocent lives you brought to our world.

The last time I looked at the data, Department of Human Services in our state was chasing over a quarter-million (yes, over 250,000, almost ten percent of our entire state’s population) deadbeat parents for past-due child support. We are in terrible shape in this state if things do change. The government is simply overburdened and unable to fight for every innocent child effectively.

Now we should pivot slightly and look to college expenses and things get really scary. Obviously college costs have risen dramatically as of late and continue to do so. More than 19.9 million students are projected to attend colleges this fall. Fact: In 2019, the average annual cost of college education (room and board, tuition, fees) is approximately $21,000 at public schools and $47,000 annually at their private counterparts. That is some serious lifting for any parent, even with six-figure income.

Everyone can hopefully one day enjoy the experience of parenthood, but only if able to do so. Never forget that 14 percent of your child’s other parent’s (talking to you dad) adjusted income (usually around 10 percent of take-home pay) is not sufficient to raise a single child. The laws must be changed to hold those who create children sufficiently responsible for their outcomes. The choices we make ourselves must also be strongly considered.

In summation, Mississippi chancery courts exercise broad authority in determining all custody and support matters that come before them. Chancellors have broad discretion and will exercise them to the benefit of fairness for all, particularly your kids, but never forget that the law prefers those who help themselves first.

Matthew Poole is a Jackson, Mississippi domestic lawyer who specializes in domestic conflict management. He is a single father and passionate about the best interests of children. He will be speaking at the National Business Institute on July 18, 2019 at the Pearl, MS. Marriott.

Facebook: The Great Divorce Equalizer

April 14th, 2019

Most of you who are reading this post remember simpler days, those pre-ancient times even prior to “Myspace”, and possibly from the era where cellular phones were reserved for the elite upper classes and the size of a half-loaf of bread. Gone are the days of simple social interaction. Once upon a time in the 1990’s, when I was a teenager, my peers and I had to actually call a young woman at her home if we wanted to see her outside of school. On an actual “landline”. Usually we expected to be fully screened by her mom or dad before speaking to her. It was all in due course and expected. Then in the late 1990’s came the internet. Communication with potential mates became plentiful, if not burdensome. God help marriage. Times have certainly changed.

Although most have realized some benefit of the wide-open communication brought by Facebook and Instagram in connecting with old friends, the perils are laid bare in the context of our most sacred social institution…..marriage. In 2005, I opened a practice focused on domestic litigation, and not necessarily by pure choice. Many of my closest friends had difficulties early in marriage and kids in tow as well. They saw no easy out and no way to salvage their sanity and their childrens’ well-being. Complex problems require complex solutions and plain will to fight for what is fair.

When social media became entrenched within our everyday lives, our cultural landscape became forever altered. When people are more easily accessed, spoken to, and available for picking their brains or for plain run-of-the mill conversation, we open a new paradigm…..some good, some dangerous. I have to dig deep to recall a single divorce case in the past decade that did not require subpoena to a social media provider. At this point, the legal teams at Facebook and Instagram have me on speed dial. The results of the subpoena power demonstrate that so many married people essentially live a double life. It is all too easy to hide behind a keyboard and away from the reality of normal married life.

My posts often lack advice (sadly it is not easy to come by, nor do I possess the ability to solve complex relationship issues), some are purely observation. I hope that anyone can derive at least a few helpful words from each of my posts. I truly appreciate my readers. So many of you inspire me to maintain my desire to speak about the unspeakable.

My sole tidbit of information that may well be beneficial when faced with divorce is that 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. It is all fair game in the process of legal discovery, and although some attorneys are too inept (or lazy) to do so, make sure that you recognize the possible reality…..facing hard, cold facts that impact your divorce.

Social media is a proverbial gold mine for domestic attorneys like myself, and the best of us know that a small investment in a subpoena for document production can and often does pay huge dividends for our clients. Issuing a well-placed subpoena “duces tecum” (for document production) can be a major asset for a client, especially in today’s age of hyper-social interaction. Do not assume that you are operating in a private realm if online. That assumption is not only dangerous in the context of divorce and child custody, it is just plain dumb.

Matthew Poole is a Jackson, Mississippi Custody and Divorce Attorney. He will be speaking at the National Business Institute on July 18, 2019 at the Marriott, Pearl MS on divorce procedure and practice. Multiple continuing education credits will be granted for both government and private institutions. Access further information at their website.

Can I do this by Myself?

April 1st, 2019

At the law office of Matthew S. Poole, we field a myriad of questions from callers and emailers about the vast subject of Family Law. Some questions are well-versed, imaginative and even thought provoking. Others are laced with raw emotions and these may take us some time to determine the real nature of the call. And then there are those calls that seem to take our collective breath away. Some silly, some sublime and far too often the inquiry is, even for us simply unbelievable. One such inquiry that seems to recur about twice a month now involves a party to a newly filed Divorce proceeding who wants us to direct him to the forms that he can use to represent himself through the legal battlefield. Read that again. Takes your breath away, right? I’ll let you in an a very poorly kept secret: There are no forms that you can use to prepare you for this legal matter.

Let me paint the picture for you, as follows:

You and your wife (or husband, but I will be gender specific just to represent the male in this article) have decided that this is “it” – the marriage is over and a divorce is eminent. And so you decide together that you will agree to save money and only hire one attorney. No worries, right? After all, we have agreed to a divorce….what could go wrong? In a word: Everything.

Be advised that an attorney can only represent ONE party in any adversarial proceeding. And I can hear you whispering under your breathe that this divorce is agreed to and is not “adversarial”. Wake up and understand this: all divorce proceedings are adversarial by definition. That is not to say that everyone must be opposed to the other person involved about every issue; however, a divorce is “you versus me”. Otherwise, why are you getting a divorce?

Now I hear you whispering that you are smarter than that “pencil neck” that your wife hired….And you might be correct , but unless you are an attorney, then you are outmatched. You may be thinking “There is no way can that hired gun can understand everything about my case and my family as well as I do. No way can I be outsmarted in my world by someone not in my world”. Makes sense to me. After all, everyone wants to play fair, right? Don’t kid yourself. That lawyer, pencil neck or not, does this for a living and he is NOT on your side. He cannot be on your side, as this is specifically prohibited by the Rules of Ethics. That’s right – the Rules dictate that he must represent his client against you with zeal. (Please refer to blog article of December 5, 2018 “Are you smarter than…”).

Perhaps there is absolutely nothing that you are prepared to fight about. The marriage is over, the kids are grown and gone and there is no value to anything that you have accumulated during the course of the marriage. She can have the furniture and the new blender and you get the lawnmower and the poodle pup. This situation, while not very common, does occur. Even in this instance, an attorney should be utilized to make sure the pleadings are correctly drafted and appropriately filed with the Court and, most importantly, that the Final Judgment of Divorce is presented to the Chancellor and entered. Can you imagine if you sought to save a few dollars and ended up doing it all wrong, only to find out years removed from the filing that your Divorce was never finalized? We have dealt with this exact occurrence and the conversation with the new fiancee’ explaining why the upcoming nuptials must be postponed was more than a little uncomfortable.

More often; however, there are minor children involved, assets and liabilities that must be divided and satisfied. The subject matter is a maze: a legal minefield chock-full of traps and pitfalls. The pleadings can be confusing and the Property Settlement Agreement is usually more than 20 pages in length. There are several ways that you can be confused, or misled, or worse – lied to. Can you spot all of the angles and complexities? Probably not.

A friend of mine who was going through a divorce in a neighboring State commented to me that he couldn’t afford to hire a divorce lawyer. He had 3 children all under the age of 11, a house with a hefty mortgage, some savings and other assets as well as some debts incurred by both he and his estranged wife. He said that they were going to work it all out and he was going to represent himself. Sound familiar? I gave him this same advice that I now give to you, my reader: You can’t afford NOT to hire a lawyer.

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 the lead Law Clerk to attorney Matthew S. Poole. He is married 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).