Prenups Made Easy

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?

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

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.

Facebook + Difficult Marriage = Divorce

February 14th, 2020

Ok, I already know what you are thinking.  How can social media alone lead to the downfall of a marriage?  Afterall, there are indeed many people who use Facebook solely to keep in contact with old friends and family.  But let us be totally honest.  Most single  and some married users of Facebook are simply making an attempt to broaden their pool of potential mates (guys, I am especially talking about you). 

There is no question that Facebook does add some positive attributes to one’s social life, but is the unrestricted communication interrupting the sanctity of marriage?  Is it too easy to vent problems with your spouse to any listening ear when we need one the most?  Are the people we “friend” truly able to give us objective and moral advice about a crumbling marriage?  Do they have your best interests at heart, or their own?  Let’s break this into pieces and explore some of what may be obvious but needs to be emphasized.  Emotion without logic never leads anyone to a good life result.

For those of us who grew up as teenagers without cell phones, we remember the simplicity of communicating with the people we held dear.  It was not as easy as it is today…we had to actually call a landline, and for me, I had to make nice with mom or dad before getting on the phone with the young lady I had a crush on.  It seems in some ways that this is the way it should be.  Is it?  Well, to say it succinctly the internet, for all of the benefits, may be more dangerous than valuable. 

It is clear that some of the benefits of wide-open communication are also impediments to the sanctity of personal relationships…marriage in particular.  Not only do we open ourselves to voices that should be distant from our most intimate experiences, we allow more easily anyone to chime in via social media.  I will attempt to break down the reality of social media’s impact on marriage in two ways.

First, it is understandable that when we are dissatisfied with our partner to vent, and what is easier than doing so online?  Gone are the days of landlines and some degree of separation between our marriages and those people who, possibly with good intent, want to tell us how best to decide our paths forward.  Fetching quick advice from a friend online is tempting for everyone, but tread lightly because they are only hearing one side of the story. 

Secondly, that attractive member of the opposite sex does not necessarily have your best interests at heart.  They likely have an agenda…to wedge themself between you and the person you hold dear.  Again, if you sense that they are not supportive of your marriage, they are not supportive of you.  Your spouse is one with you and the law also recognizes that your interests are sacrosanct…they are one in the same.  

Facebook and social media in general have dramatically changed the landscape of divorce.  Even though accounts may be designated as “private”, the bulk of information contained in them is a simple subpoena away for an adept lawyer…that may change quite soon.  Mark Zuckerberg, Facebook C.E.O., recently announced a plan to encrypt all messages sent via their messenger feature.  This basically means they will be nonexistent once they are read.  Talk about a way to cheat in private with no one being able to know a paramour exists.  My suspicion is that most cheaters are looking forward to this feature rolling out in the near future.

As a final thought, divorce rates are down in sheer volume, but have spiked in relation to percentages with the onset of social media.  Divorce trials are inundated with Facebook posts as evidence of adultery.  The personal and intimate nature of romance seems more and more elusive when we are open to unfettered communication.  While it may be a well-meaning friend or a new love interest that interferes in marriage, there does not seem to be any improvement in sight short of people ditching social media outright.  That is a scenario no one can fathom and simply will not happen.

Winning at Work, Losing in Custody? The Sad Truth

February 9th, 2020

So many men (sometimes career women, too) lose a custody fight because of their career obligations.  I want to share a few typical scenarios in which a very good parent, maybe even the better option to be the primary caregiver in most respects, is going to lose regardless of the grand scheme of things.  First though I want to reference a previous post that was written in October, 2019 entitled “Mom Has The Advantage With The Young Ones”, (it can be found in our archive) wherein I concluded the following:

“Is there truth that dad doesn’t have a chance?  Not necessarily, but he usually has a taller hill to climb to obtain custody of a young child than mom does, and that’s not written law, it is likely cultural more than anything else.  The Albright analysis does afford some advantage to mom, particularly because of the continuity of care when dad is at work.”

It is well settled that men (or working moms with stay at home dad husbands) are technically supposed to start on an even playing field with one another in a custody dispute…courts are mandated to be “gender-blind” in deciding who gets primary custody of a child.  Let’s look at two different, common scenarios where the hard worker has almost no chance of winning in a custody fight because of their job responsibilities.  

Scenario #1.  Husband and wife have two young children.  Mom isn’t happy in the marriage and hires a divorce attorney to initiate a divorce.  She hasn’t worked since the birth of her first-born which was several years ago.  Dad has always been the income provider, the breadwinner so to speak.  He wants to be the primary caregiver and that wife have visitation.  He believes that, since he has family close-by, that they can stand in his shoes while he works long hours.  Dad is incorrect and will almost certainly lose.  He is upset, feeling punished for being a great provider.  The reason he will almost certainly lose?  Because unless mom is unfit or has a work schedule more taxing than his, the capacity to provide child care is vested in natural parents first…not the relatives who live nearby.  Is he being punished?  The argument can be made, but the logistics of caring for kids takes precedence over how dad feels. 

Scenario #2.  Mom and dad have been divorced for a few years (or broken up).  A court order is in place giving mom primary custody, but dad gets a generous dose of visitation, more than standard every-other weekend visits.  Dad lives in the same town as mom, or even the next town over.  Dad gets offered a significant pay raise, but the job is in Texas.  He believes full well that he is the better parent.  He is placed in a scenario wherein he must choose to leave Mississippi and risk the difficulties of traveling…a LOT, in order to see the kids as much as he does now.  But, he wants to be a great provider, because he loves them.  Can a happy ending follow?  Unfortunately, probably not.  He either has to suck it up and follow the existing order and live out of his vehicle or petition the court for a restructuring of visitation.   Most likely, and 99.9% of the time, this fact alone will not tender him a foot in the door to seek custody…even if he has proof that the Texas schools are superior.  Is he being punished?  I’ll let you decide, but clearly our lives are full of tough choices.

My final thoughts are twofold.  First, it does seem that we often get the short end of the stick when doing the right thing.  Secondly, no matter how much better-off you may be financially than the other parent, how much nicer a home you have and so-forth are of no concern to the courts.  That is what child-support is for…to simply equal the playing field.

What Kids Need…The Court’s Role

January 30th, 2020

Why is it that so many of us have difficulty getting along with our exes?  Is there a way to move beyond the struggles we face in attempting to co-parent?  It seems clear that many of us let emotion get in the way of what is best for our kids.  Oftentimes we forget that children do not understand adult problems.  All that they see is two parents who fight and fuss at the drop of a hat.  So, what are the remedies to this corrosive behavior that impacts the little ones so negatively?  There is no magical panacea, but after managing close to 1,500 domestic custody matters in the past two decades, I have a few ideas that hopefully will help.

I want to state up-front that the vast majority of the people reading this are concerned for what is best for their child or children.  Thank you for that, they will reap the rewards of your care and concern.  It is all too easy to get caught up in the fray with an ex, to fight and fuss over even the petty things.  How many times have you lost your cool and it affected your child?  It happens…even to good people.  Is there some way to bury the negativity you harbor toward the ex?  Let me start by saying that our focus has to be on the little ones…they did not ask to be brought into a tumultuous situation.  They have zero grasp of adult relationships…and they deserve peace and innocence in childhood.  When they become adults, all of the beauty of innocence disappears.

When attempting to co-parent with an ex, even if you have primary custody, make sure that you value their role in your child’s upbringing.  You do not have to put them on a throne, but realize that your exes’ sense of self-worth is reflected upon the child.  Remember that severe parental alienation is ground for a change in custody of a child (Mississippi began this practice as early as 2013 and it has been upheld by the appellate courts).  No matter your feelings toward the ex, make sure you are a beacon of hope, positivity, and happiness for your child.  No kid wants to believe that one of their halves is worthless.  It reflects on their own sense of self-worth. 

Here is my short list of ways to de-escalate the tension that will ultimately hurt your child.

  1. When the conversation between you and the ex turns into something unrelated to the kids, remind them that your concern is child-centric…not about past events that you both recall.

  2. If voices are raised, remain calm.  Do not fight fire with fire.  It is better fought with water.

  3. Keep in touch with your ex about the child’s grades, behavior, and school programs.  It may seem like a minor thing to you, but these acts show respect for the child’s co-creator and benefits both.

  4. Remember that your child loves without the judgment of an adult and that their other parent needs to be a source of positivity…you can make that happen with a firm deliverance of assuring that you value their role in your child’s life.

  5. Always keep your child aware that they can call their dad/mom at any time if they want an ear to lean upon.  They will ultimately benefit from the unfettered communication.  We all need it at some place and time.

In short, the court will be glad to see a source of positivity in the sea of hate that they swim through on a daily basis.  It isn’t difficult to be a shining light in the dark of custody litigation.  Simply keeping priorities in order and demonstrated are not complex tasks.  Any chancery judge in Mississippi will be happy to see that not all litigants are angry, even vindictive.  That mindset goes a long way and is the path to getting a great result from your local child custody judge.  Don’t ever forget that your child is more than your flesh and blood.  You are their mentor, teacher, and best friend.  It may take a village to raise one, but it takes a strong parent to create a strong future leader.

“A Stitch in Time Saves Nine” (Avoidable Custody Mistakes)

January 24th, 2020

Ok, I am sure you are thinking of the saying quoted above.  Sounds like something uttered from grandma and irrelevant to child custody litigation, right?  It is not only relevant, but the key to stopping the bleeding early on.  It can help anyone in a custody dispute from an all-out hemorrhage, saving not only money but lost sleep and stress that accompanies those who procrastinate dealing with their custody matters.  I have said it and will repeat myself again…hire a lawyer before your case spirals out of control.  It is easier to do it right the first time.  Cleaning up the mess of procrastination is not so easy. 

When I was a young attorney (no grey hair) in the early part of the millennium, I wanted desperately to believe that simple solutions existed for those parents who are victimized by an abusive or controlling ex.  It has taken me close to 2 decades to realize that the more difficult the relationship is/was, the tougher it will be to attain clarity and peace of mind moving forward.  So will it be for our kids.

I also know this to be true not solely from representing clients in sticky places, but because I have lived it myself.  Going through my own custody battle gave me a perspective I could have never imagined.  Thankfully, I have full custody, legal and physical, of my ten year old son and have for over 9 years.  I can relate to the stress you are going through more than you may know.

So, back to the topic, based on the title of this article.  What is a stitch in time?  Saving nine?  Well, the obvious is that when we address custody issues early on they are seen on a level playing field by the court.  If you are seeking say, joint custody, for instance, and have waited until your child is kindergarten aged, you likely missed the boat.  See our multiple articles regarding the extraordinary importance of continuity of care.  Also, as an example, if you claim to be the better parent and are seeking full physical custody yet sat still for years, your argument is now diluted.  It is weaker than the proverbial glass of water. 

So, here is my advice…take it or leave it.  I can only offer.  If you let a custody case spiral out of control because you are in denial, you, as well may deny that you are coming down with the flu, pneumonia, or worse.  Getting control early is key to a reasonable resolution. 

  1. Do NOT believe that your good luck will keep you safe from the pain and expense of litigating over a child/children.

  2. Do NOT wait until the last moment to hire an attorney…the worst attorney in town will get the better of you with relative ease.  Trust me, I have had to embarrass many people who let their ego lead them into self-representation.  It is part sad and part comical.

  3. DO consult with a duly qualified lawyer, preferably one who specializes in family law, as so soon as friction is noticeable with your ex.

  4. Do NOT believe that your case is easy and that the evidence presents itself.  The way to introduce evidence is highly technical, even the most seasoned attorneys can mess it up and often do.

  5. DO seek advice from at least 3 lawyers prior to hiring one…and trust your gut instinct.  The cheapest is likely not going to put the time in that is required to succeed.

  6. DO a basic calculation of the financial ramifications over the life of your child, college too.  It truly is amazing how expensive they are, and the burden should be borne by two, not just you.

So, let us recap.  Procrastination is bad.  A mediocre lawyer beats a smart non-lawyer…every single time.  A total catastrophe can be avoided, but only for those who are able to stare reality in the face.  If you are able to relate to this article, call me or any other qualified domestic lawyer.  I am sure that, at the end of the day, you will be glad you did.  After all, that one stitch is your best shot at avoiding it all unraveling before your very eyes.

Reading Your Custody Lawyer’s Mind

January 17th, 2020

When people call custody lawyers (divorce-related or not), they are usually in for a big surprise.  These cases are most often fueled by animosity toward the other parent.  As we all know, when people are highly emotional, we tend to make mistakes.  The pain of divorce is absolutely terrible for those involved.  What seem to be simple custody cases are also full of hurt and negativity.

I want to make two simple points in this article.  The first applies only to those who were married and divorced or those who are now divorcing.  The second only to those who were never married to the opposing parent.  Here is what we are thinking each and every time.  So, here it goes, my first (and best) article of 2020.  

1. Married and divorced parents go through various emotional phases when they contact divorce lawyers.  Only when they have accepted that no easy solution exists and the emotion is under control can a reasonable and cost effective solution be had.  That’s a tough pill to swallow for most.  Never forget the well-known lawyer quote, “criminal lawyers see bad people at their best, and domestic lawyers see good people at their worst”.  That couldn’t be more true.  Some people wait years to come to an agreement.  And some never go to the courts at all because these are complex and fact-driven matters.  No form exists to get you what you want.  Neither does it for your ex.  Many callers believe that firmly.  Call the chancery court and find out for yourself.

2. If you are expecting a child and unmarried, it is crucial to understand that establishing fair parameters is best accomplished before the child is born…especially paternity.  Men are disadvantaged when step one, paternity, is not agreed upon, so to you guys, be forewarned.  For the women, collecting his tax returns and pay stubs early on is a necessity.  Although there is some debate about whether evidence of pre-birth intentions of the parents has much weight, it is certainly a good place to start.  Don’t forget that expenses will steadily rack up after the pregnancy…a huge source of frustration for both involved…and of the emotion you should be avoiding…negativity.  If you believe that the State of Mississippi will help you in obtaining custody or visitation, you are incorrect.  Child custody battles are not only emotionally taxing, they break the bank for most.  Exceeding 20-25k is not entirely unusual…per side.  Scary thought, right?

Seeing the big picture in your custody battle, married or not, requires a massive degree of restraint.  As I have often said, if everyone were reasonable, I wouldn’t have a job (at least not as a domestic attorney).  Cooler heads should, and usually do prevail.  Being prepared for what lies ahead is front and center.  After all of the dust clears, seeing the mess you are in can and will be cleaned-up, but if you let anger and sadness make your decisions, be prepared for a life-long battle that only hurts the kids.  

Custody Cliff Notes…And How to Win

December 23rd, 2019

It is obviously unfortunate that so many people fight over their children…and who is more fit to raise them.  Statistics only tell a small part of the story.  For most of us, reality and day to day life dictate outcomes.  When parents do not live close to each other, the reality is that one parent will receive the lion’s share of physical custody.  It is plain unworkable to say the least.

Chancery judges are well-aware that a child cannot be equally split, unless you live a short jog from your ex.  Children need and deserve a primary custodian and anything short of neighboring your ex will preclude an award of joint physical custody.  Is there an easy answer short of getting back together?  Probably not, but the continuity of care of the child(ren) is always paramount.  Employment obligations also play a huge role in an award of physical custody.  Let’s explore the topic and attempt to find some clarity.

Although many people believe that equally split custody of a child is workable, the truth is that it is almost impossible in the real world.  For starters, the odds of you perpetually living in the same school district as your ex are not good…and that will always preclude true joint physical custody.  Never forget that courts are inclined to finalize your custody case and to never hear from you again…they have long lines and limited time.

What is my best advice as to winning custody of your child?  It may be more basic than you realize.  So, here are my 5 tips for obtaining custody…the “cliff notes”, if you will. 


1. Do not disparage or speak any ill of your ex…it is not good for your child and will reflect poorly upon you as a parent. See our many articles on parental alienation at mspoole.com. They are available on our website, see the search bar at the top.

2. Have basic facts and witnesses that support your claim that you are the primary custodian of your child…remember that joint custody is a rarity and the more involved caregiver has an enormous upperhand.

3. Ensure that your child is given every opportunity to thrive academically and that you are helpful with their schoolwork, that you are highly involved in their lives.

4. Make absolute that your child is not around people with a history of domestic violence, drug use, or excessive alcohol consumption.  The court will not look kindly upon putting innocent kids in a crime-ridden scene.

5. Recognize that some degree of involvement of the “other” parent is paramount to your child’s happiness. They will not easily thrive without feeling love from both who created them. Cooler heads usually prevail, and anger is not helpful in any courtroom.

At the end of the day, the better parent has the upperhand…and should.  Being the better parent is not as easy as it seems for many of us.  If we can take the time to consider and trust our most basic judgments about what is best for our little ones, we have increased the odds of winning full custody of our kids.  Remember, in the end, that it takes two to create them, and although no one “wins” a custody battle, one of you will get the short end of the stick.

Sink or Swim? Childcare Costs Rising

December 10th, 2019

Having a child brings about major financial stress: The cost of raising a child in 2018 was $233,610 – (excluding the cost of college)– for a mid-income family, according to the U.S. Department of Agriculture.  This figure only considers costs prior to your child turning 18…not 21.  (Mississippi recognizes 21 as the age of automatic emancipation unless a minor is married or joins the military full-time).  Expect that figure to rise by a few thousand bucks each year. 

The financial stakes are sufficiently higher for new parents than in previous generations.  This trend is primarily due to a combination of both changing demographics and economic pressures faced by those having children in the modern world.  The new reality is that the vast majority of our population cannot afford to have children at all, as harsh as it may seem.   

In the context of practicing domestic law, my peers and I receive a large number of calls regarding child support obligations.  Often, they consist of a dad calling in an attempt to avoid paying support.  I would like to give a rough sketch of the math behind my opinion that these calls are not only irritating, but nonsensical…at best. 

Average per capita income in the state of Mississippi is around 32k (thousand).  After taxes, average take-home pay is roughly 2k per month.  When our state’s child support laws come down to calculating support, 14% of the take home (plus or minus, depending on a few other factors, but this number is a solid baseline) will be paid to the child’s custodian.  So, in our example, average income dad will owe about $280 per month, or $3,360 per year.  Until the age of 18, he will owe $60,480.  Sounds like a big burden, right?  Not so fast.

Consider this; given that the average cost of raising a child is about FOUR TIMES that amount until age 18, it seems pretty clear that dad is shouldering only a quarter of the burden (and yes, single dads do exist…I happen to be one so if you are also take no offence in my example).  Is state law failing to keep up with the exponentially rising costs of child rearing?  From my perspective, the answer is more than clear.

There are never simple solutions to complex problems, and never will be.  As frustrating as it is, the only cure to the financial struggles faced by single parents starts with making sound choices about whether kids are affordable for them in the first place.  Based on current law, dad gets off pretty easy.  Based upon common sense, 14% of income as child support is terrible public policy.  Even if the baseline support guidelines were raised to 20%, mom would still have close to two-thirds of the burden.  Take a moment to digest how archaic our support laws really are.

So, now we need to look at all of this in the context of custody factors (Albright factors…who gets the child and an award of support).  The third factor in Albright is “The parenting skills and willingness and capacity to provide primary care for the child”.  So to all of you dads out there, be forewarned:  working those long hours will work to your disadvantage if you are seeking custody.  Get ready to pay child support absent extraordinary circumstances.

In sum, my observations are fairly basic in the scheme of things.  As I have stated, non-custodial parents, as much as they may feel cheated, get off easy financially.  Shouldering on average a quarter of the costs of child-rearing should be a relief, so non-custodial parents are lucky in that regard.  Our legislature needs to pass an increase in child support reflective of the actual costs today…not based on decades old data. 

I recommend that anyone reading this write your local representative and voice this concern.  Regardless of the sacrifices we must make, our children should never go without.