Archive for the ‘Uncategorized’ Category

Parental Alienation…a Syndrome, or Plain Old Contempt?

Monday, July 1st, 2019

This question and conversation comes up quite frequently in domestic cases where parents simply cannot agree…on much of anything. Spending excessive legal fees and lost sleep simply may not be worth it if you plan on “firing the first shot”. The battle that ensues often exacerbates the problem, not curing it or the underlying issues…the “root cause”, as it were. Animosity, and expense (even the cheap lawyers are not cheap by most folk’s standards), grows the more DISagreeable you two are willing to be. In the end, some level of compromise is needed…by both …unless you are realllllllly wealthy, even if so I always prefer some level of agreeability, even if on some minor issues.

I would like to point out that there is a strong and decidedly clear legal distinction between what can and cannot be construed as a “syndrome”, and the advice I have may surprise you. Much relates to the simple mistake of overstating your case. Often the softer approach yields stronger benefits …in the long run at least. After 1,300 domestic cases I have learned that this matters from my own prior overzealousness, a mistake many rookie lawyers learn from, quickly.

The term syndrome has been intertwined with alienation of a parent, but there is likely a better way to advance your case without using medical and psychiatric terminology……that being reducing costs by playing the hand you are dealt in a more clever, less physiologically complex format. Syndromes are well defined and often hard to pinpoint (and prove)…..we will get to that later. What is easy to show is mom or dad disparaging the other to the little ones…regardless of the court ordered language (the judgment), it is always intrinsically terrible in the eyes of a Mississippi Chancery Judge without very good reason. Emphasis on VERY.

So here we are, on the life battlefield, somewhat even because of our own decision making flaws. The kids matter so much, we have to see that we are their only guide to a wonderful life, education, and happiness. It can be accomplished. With that said, let’s outline the next blog on this subject, which is slated for 3 weeks away, just after we finish our series on grandparent rights.

The long and short of it is simple …we will explore 2 courses of action and attempt to decipher which fits a particular pattern of facts best. One course requires a ton of medical testimony, the other most likely will not. We will examine what can be done preemptively to avoid the most expensive and stressful path. Stay tuned and we appreciate you very much.

I hope you will check back soon if these issues pertain to your difficult situation…..I can shed a little light, hopefully more. I will start by charting a relatively simple path toward resolution that will not break the bank. A little information is never a bad place to begin any challenge, and God bless our children.

Matthew is a 16 year practitioner of domestic law. He is a single father and is passionate about the role parents play in their children’s outcomes. He speaks at National Business Institute on July 18.

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

Sunday, 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.

The Jurisdiction Determination in Child Custody Cases

Monday, June 18th, 2018

“Where are you from” is a fairly simple question, especially if you live and have lived in a certain state your whole life. If you have moved around, though, the answer may actually seem pretty complicated. In casual conversation, people commonly resort to phrases such as “I grew up in…” or “I’m originally from…” in order to distinguish their “home state” from a recent or current residence. When it comes to legal jurisdiction, however, a much more meticulous approach is required. Where you are truly “from” will determine which court has the authority to hear your case and ultimately control your future.

It should not be a surprise that child custody disputes exaggerate any confusion surrounding this question, particularly when a child moves with one parent to a different state from the other parent. Although there may be multiple states with the authority to rule on child custody matters, only one state will take jurisdiction. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs jurisdiction determinations for all child custody and modification of custody cases and prevents courts from issuing conflicting orders. This law has been adopted by 49 out of 50 states (including the District of Columbia, the US Virgin Islands, and Guam) and reconciles discrepancies between the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act, which previously attempted to provide these jurisdictional guidelines.

§ 93-27-201, Subsection (1) of the UCCJEA establishes the “exclusive jurisdictional basis for making a child custody determination,” which does not require physical presence of, or personal jurisdiction over, any party involved. Actually, these factors are not even sufficient to establish child custody jurisdiction according to part (c). A state only has jurisdiction over an initial child custody proceeding in the four situations summarized as follows:

It is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months and the child is now absent from this state but a parent or someone acting as a parent still lives in the state

A court of another state does not have jurisdiction through situation (1) or a court of the home state has declined to exercise jurisdiction on the ground that this state is a more appropriate forum and

The child and at least one parent or someone acting as a parent have a significant connection with this state other than mere physical presence and

There is substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships

All courts having jurisdiction under the situations described above have declined to exercise jurisdiction on the ground that this state is a more appropriate forum

No court of any other state would have jurisdiction under the situations listed above

Since the UCCJEA designates the home state as the best forum, that state will always have priority in custody matters. § 202 says that this exclusive jurisdiction will continue as long as the state maintains a significant connection with the parties and the substantial evidence is still in the state or until all of the parties have moved out of the state. If an emergency situation occurs (i.e. a child is being abused or was abandoned) then the state where the child is physically located may take temporary jurisdiction to secure his or her safety under § 204. The case will then be given to the home state, transferred to another state that has grounds for continuing jurisdiction, or possibly even kept by this state if the first two options are not available.

However, except as provided by §204 for emergency situations, no court can modify a child custody order made in another state “unless a court of this state has jurisdiction to make an initial determination” under § 201 (a) or (b) and (1) the other state decides it no longer has exclusive continuing jurisdiction or that a court of this state would be more convenient forum or (2) it has been determined that the parties do not presently reside in the other state.

This synopsis certainly does not include every detail of the UCCJEA, but Attorney Matthew S. Poole has handled a countless number of these complex cases. If you have any questions or would like to set up an appointment, please don’t hesitate to call us. We would be happy to explain how the UCCJEA applies to your unique situation.

Written by Jessica Jasper, J.D. Candidate, Class of 2020, Mississippi College School of Law

Importance of a Father in the Home

Saturday, May 12th, 2018

Maintaining the family unit should be the number one goal of any mother and father. Even when going through a divorce, it is essential that both parents are just as involved in their child’s life as they possible can be. However, with divorce ever on the rise in the United States, an all too common consequence of parent’s separating can be an absence of the father in the home. This can mean a great deal of adversity for the children later on in life. Be it an increased risk of poverty or a higher chance of incarceration, living without a father puts a child’s life squarely at risk for all manner of difficulty.

Since 1960, the percentage of children living in two-parent homes has decreased dramatically from 88% down to 66%. This drop has been caused by many factors, but the most prevalent one is the rise in divorce. Across the nation, married couples are calling it quits and their children are stuck in the middle. Unfortunately, this increase in divorce has made some dads pack up permanently, leaving their ex-wife with the kids, and their kids without a father-figure. This can have an indescribable effect on the life of a child.

According to the Census Bureau, there are 24 million children in the United States, and one out of three of them live without their biological father in the home. Compared to children who live with both parents, these children are four times more likely to live in poverty, and two times more likely to drop out of high school. Combine these statistics with the poverty income level in the U.S. only being $12,140.00 a year, a child living in a single parent, fatherless home has to escape becoming another statistic just to overcome the odds already stacked against them.

Risks of poverty and lack of education aside, there is a darker and more horrifying concern of growing up without a father. One of the more striking statistics provided by the Census Bureau shows that 63% of youth suicides in the United States are performed by children of single-parent homes. This is an astonishing number. To put this data a different way, one of the only single identifying metrics that connects two thirds of all children from around the country that commit suicide is the fact that they are raised in a single-parent home. This alone shows the importance of why maintaining a two-parent household is integral in a child’s life.

Going through a divorce can be the toughest thing someone has to go through. Although most everyone would rather not split up their own family, it is often not that simple. When mom and dad cannot work it out, or even refuse to work it out, the child suffers. Custody battles can be the same way. When one parent refuses to let mom or dad be a part of their kid’s lives, it hurts the child most of all. If you want to be a part of their child’s life, but are struggling because of divorce, custody, or your spouse is refusing your rights as a parent, please do not hesitate to call us. The Law Office of Matthew S. Poole is well-seasoned to handle these types of situations and we would be happy to help.

Written by J. Tyler Cox, J.D., Class of 2018

Finances In A Divorce

Monday, May 7th, 2018

A person’s financial situation has more influence over day-to-day life than almost any other aspect. Finances influence our ability to enjoy certain luxuries that life brings. Money is also a very private subject. Almost universally, it is considered rude to inquire about someone’s finances in a social setting, and also viewed as arrogant to brag about money. Therefore, when a prospective client comes to our office seeking to initiate or defend a domestic lawsuit, they are often surprised at the level of financial disclosure that comes with that proceeding.

Finances indicate more than personal wealth. They are a good indicator of a person’s ability to hold down a job, ably manage their finances, and to provide security for their families. Directing your finances in a sensible way shows the court a certain level of maturity. Money is hard to earn, and easy to spend. In domestic litigation, especially when children are involved, courts take into consideration how the litigants have been able to soundly oversee their earnings.

A parent’s finances are a factor in child custody cases, and the financial situation of the parents is even included among the Albright factors that chancellors use in making a child custody determination. You can view an earlier post on our website about that factor as well as the other Albright factors through our website’s blog search function. This does not mean that chancellors will simply look at which parent makes the most money and award custody to that parent. It is but one factor to show that the person seeking custody is able to provide for the child as they need and deserve.

Income also plays a large part in the awarding of alimony or separate maintenance. If one spouse in a divorce makes much more money and the other party needs some financial assistance, courts will take that into consideration when deciding whether or not to avoid alimony.

One of the most important documents in domestic litigation is the 8.05 Financial Declaration, named for the Uniform Chancery Rule that requires certain financial disclosures to be made. This document lists a person’s income, assets, and liabilities. Having an ex-spouse be able to see that information can make clients uncomfortable, but they are important declarations to make in these cases. Chancery courts, which handle domestic matters, are courts of equity. This means that chancery courts attempt to resolve disputes in a way that is fair to both litigants and that avoids unjustly enriching one party over the other. These rules regarding financial disclosures can be a friend to those who follow them, and a foe to those who don’t.

Our office understands the uneasiness that comes with giving out financial information, but we also have the experience to know that following these rules can only help the court look favorably upon a party. For a person involved in domestic litigation, being able to show the capability to control their finances will go a long way in achieving whatever goal that person wishes to reach. If you or someone you know has a question about the financial reporting involved in a lawsuit, call the Law Office of Matthew S. Poole. We will be happy to lend our knowledge to give you a response that is the truth, and to help you navigate any domestic legal issue you may have.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

Are Attorney’s Fees in Child Custody Cases Negotiable?

Wednesday, November 1st, 2017

Clients have more ability to negotiate attorney’s fees in child custody matters than they often realize. It is obvious to anyone who has had the burden of hiring a qualified attorney in a child custody matter, whether a first proceeding (a.k.a. initial adjudication) or a modification of custody/visitation that cost is always a serious obstacle-even insurmountable to the person living paycheck to paycheck. Depending on a variety of factors, it is typical that custody cases in Mississippi Chancery Courts can take anywhere between 25 and 150 hours of attorney time, and often even more if an appeal is necessary. Experienced custody attorneys usually charge between $200 and $300 per hour, so doing the math can be a scary thought, to put it gently.

It is important that you consider several factors in hiring a domestic lawyer, particularly when obtaining custody of children is the paramount goal. For one, do not hire an attorney who has practiced for a short duration of time (i.e., less than 6-8 years). Also, exercise extreme caution when considering an attorney who practices in multiple areas. Lawyers that litigate injury cases, criminal matters, contractual issues, and custody/domestic law are jacks of all trades, and masters of none. I have rarely observed an attorney that can wear multiple hats effectively. The best family lawyers are focused exclusively in that area, and I battle with the best domestic lawyers in Mississippi on a regular basis. The volume of statutes and case law within even one area of legal practice is difficult to ever have a firm grip upon…..the more areas of practice, the more irons on the fire, and the fire will extinguish itself. Buyer beware.

So what is the best advice, the lessons I can help the legal consumer to benefit themselves and, in kind, their children? The following is a list of basic precepts that will ensure you do not overpay for your domestic attorney, in no particular order;

Don’t attempt to negotiate the retainer AND the hourly rate, pick one and run with it. Since most domestic litigation exceeds the retainer, I would suggest you offer your prospective attorney 20% less than their advertised hourly rate. Even if you can only achieve a 15% reduction you will save a significant amount and make your retainer stretch further than it would have otherwise.

If a significant amount of travel will be needed to prosecute/defend your case, offer the lawyer only one-half of the hourly rate for litigating, my quarter says they will most often accept.

Offer to pay a small expense stipend/retainer ($350-$400) in exchange for a reduced retainer/hourly rate…this will cut much of the hassle lawyers face with seeking expense reimbursement. Time is money for attorneys, and time saved is money earned.

You have nothing to lose, except, well….hard-earned money. Don’t be afraid to ask. The worst you can expect is a resounding “No.” Most lawyers are realists, and we know that there are too dang many of us. You have more leverage in negotiating fees than you may expect.

Always take time to scrutinize your fee-statement. Lawyers are (believe it or not) usually fairly decent and ethical people. However, if something stands out as unusual or if there are an excessive amount of phone calls on your bill, don’t be afraid to question the veracity of those charges. It is not unusual for domestic cases to be 30-35% phone calls, but anything more is highly questionable at the least unless you require extraordinary client attention.

Hiring a domestic attorney can be a nerve-racking experience, and one that should not be taken lightly. Mississippians work hard for their money, and they deserve to feel that those concerns are being heard when hiring an attorney of any kind. Our office believes that when this issue is properly addressed, the lawyer-client relationship experiences growth in trust and understanding, making the unpleasant process of a domestic case a little easier on everyone involved.

Hindsight is 20/20: Lessons From an Attorney Divorcee’

Monday, July 3rd, 2017

I am currently an attorney in the state of Alabama and have known Matthew Poole since 2003 during our time with the Mississippi Attorney General’s Office. Following is a first hand experience that is significant when confronted with divorce.

The old saying “hindsight is 20/20” is certainly an overused cliché, but could not be more fitting to describe my experience with divorce.  I learned some difficult lessons over the course of what I describe as my “4 year divorce” and my goal is to provide you with a map to avoid the same mistakes I made. You may hear that no divorce is the same, but most divorcees face many of the same pitfalls.  If my open and honest discussion helps just one other dad avoid four years of trials and tribulations, then this blog will be a success. If one child benefits from the message about the importance of co-parenting, this is a pure success.

To paraphrase a wise saying, “you can’t know where you are going until you know where you have been.”  Four years of journaling my divorce provided me the unique opportunity to reflect on where I was emotionally at each step of my divorce.  My journal is a snapshot of my thought process at the very moments I made each mistake in my divorce and would certainly be the “knowing where I was” and having the opportunity to see it in hindsight gives me the clarity I need to “know where I am going.”

Wrong turns in divorce don’t start at the moment the divorce is finalized; not even close.  Vital decisions are made in the pre-divorce period that will carry long-lasting implications and results in newly divorced fathers facing nearly insurmountable odds of being the best dad they can be.  There comes a point in the pre-divorce process that the inevitability of divorce sets in.  For me, this crucial point came after months, or more realistically years, of efforts to keep my family together.  I was physically exhausted, emotionally drained, and filled with anxiety about the unknown.  That is when I made not just the first wrong turn, but THE wrong turn that set me on a path that took me fours years to begin to correct.  I have a name for it. I call it my moment of “white flag surrender.”

Waiving the proverbial white flag was my way of doing what I thought was best for my children.  Remember, if you are in unfamiliar territory and you are exhausted and desperate, you will not make the best decisions for your family.  I agreed to give my ex-wife everything and I mean everything.  My wife got the kids, house, condo, cars, bank accounts, and even family heirlooms.  I walked away with my clothes. I made the mistake of representing myself, and that is something even the finest lawyer should avoid.

My first wrong pre-divorce decision directly resulted in my starting my new life as a single dad unable to support my kids in the way they needed. If you have yet to hear your attorney or judge use the phrase “best interest of the child,” you soon will.  Every decision made during the entire pre-divorce and divorce processes should be made through the lens of what is in the best interest of your child.  That is to say, while contemplating decisions you face, you must ask first “what is in the best interest of the child?” Having two emotionally and financially secure parents is always in the best interest of your children, and by doing what I thought best. I wrecked myself financially and then emotionally, thus, leaving my children with less than 2 reliable parents.  

Navigating the divorce process was stressful, but by putting myself in a position of weakness (i.e. impatience) during my pre-divorce surrender, I fared much worse in the final divorce decree (more on that in later blog entries).  Every hasty decision (there were many!) I made was in the interests of receiving finality instead of with the realization that the court’s order would be in place barring monumental litigation.

Divorcee Life-lesson One:

Pre-divorce is not the time to throw in the towel to all of your ex’s desires and demands, even if you think this might be what is best for the kids.  Remember, two financially strong and emotionally stable parents are what is ultimately in the best interest of the kids. Pre-divorce is tough. The whole process is foreign to you.  You will be scared.  You will be emotionally drained.  You just want the pain and discomfort for everyone to end.  Believe me, I know.  But you will only make matters much worse for your kids, your ex and yourself if you do not position yourself to exit your marriage as financially secure as you can justly make it for yourself. If you resist the urge to surrender (and dang it is a strong urge), you will be a better single father, a better ex-husband, and ultimately, that is all that matter to your children.      

As you set out on your new journey as a single dad, you will need to prepare yourself for the stresses that await you throughout the divorce process. It is pivotal that you fight the urge to waive that white flag before you ever get started. Do not set out on this path alone and don’t be ashamed to ask someone to be a part of your support network. Use every tool you have to remain focused on the best interest of the kids while fighting that urge to throw in the towel. If you will heed this advice you can come out the other side of your divorce much better prepared to take care of your kids while avoiding the four-year journey I took down the wrong path filled with pitfalls disappointment and heartache.

If you are contemplating a divorce, whether it be high-asset based or the primary concern is that of your child’s well-being, The Law Office of Matthew Poole has the experience and expertise to assist you in making one of the most crucial decisions of your life. Don’t attempt going it alone, even if you are an attorney.

And There Were Still Twelve – Domestic Violence and Divorce Grounds in Mississippi

Sunday, March 5th, 2017

Recently, the Mississippi Legislature again voted against a bill that would make domestic violence the thirteenth ground for divorce in Mississippi. As to be expected, there has been large public backlash around the state regarding this decision. Much of this criticism seems to be directed at the legislature’s seeming insensitivity to the seriousness of domestic violence. While our office condemns domestic violence in every form, it is important for Mississippians to know the effects of this decision on a divorce case in the state.

There are twelve grounds for divorce in Mississippi, which are listed elsewhere on our website for your viewing. Our concern today is the ground of habitual cruel and inhuman treatment, which is the ground most likely to be at the front of a divorce where domestic violence is occurring. While domestic violence is still not explicitly a part of Mississippi divorce grounds, cruel and inhuman treatment allows abuse to be addressed by courts in the state. The phrase is vague, and has been examined through many different lenses throughout the years.

Marriage is, for lack of a better word, hard. Arguments and unpleasantness are simply parts of both marriage and life. Therefore, habitual cruel and inhuman treatment must extend beyond rudeness, unkindness, or mere incompatibility. Although the word “habitual” indicates that this behavior must be continuous or systematic, Mississippi courts have held that a single instance can provide grounds for a divorce. Kumar v. Kumar, 976 So.2d 957, 961 (Miss. Ct. App. 2008). Physical violence or even a threat of it isn’t required to show proof of cruel and inhuman treatment. Cruel and inhuman treatment can also take the form of emotional abuse, which can later lead to actual violence.

The case of Harmon v. Harmon, 141 So. 3d 37 (Miss. Ct. App. 2014) showcases less severe grounds enabling a divorce in Mississippi. In that case, a wife testified that her husband of five years regularly accused her of adultery, called her derogatory names, followed her on breaks from work, and appeared often at her place of work. Her daughter and co-workers testified to her agitated manner following his actions, and that she was experiencing suicidal thoughts as well as murderous thoughts about her husband. The husband was also a compulsive gambler. The court of appeals affirmed the grant of divorce based on habitual cruelty. This case shows that grounds much less severe than physical domestic violence can effectuate a divorce in Mississippi, and that habitual cruel and inhuman treatment is an effective ground for divorce under even minimally violent or abusive circumstances.

While the Legislature’s decision is disappointing, the twelve current grounds for divorce in Mississippi sufficiently allow for a divorce to be granted. The Legislature declining to add domestic violence as a thirteenth ground does not mean that occurrences of domestic violence cannot provide a ground for a divorce. The current statutes provide grounds for divorce in abusive scenarios, albeit under a different label. It is also important to also note that Constructive Desertion can be recognized as ground for divorce when the conduct of one spouse is subjectively ruining the ability to maintain a normal, healthy marriage.

If you or someone you know is experiencing domestic violence, our office encourages you to seek help, and to feel confident in pursuing a divorce because of that violence. Despite the number of grounds staying at twelve, Mississippians should feel confident in the professionals of the legal system, and their ability to realize when domestic violence entitles a person to a divorce.

By Kenneth Davis, J.D. Candidate 2017.  Law Clerk to Matthew Poole. 

 

 

 

 

 

 

 

 

 

 

 

 

Five Divorce Misconceptions

Wednesday, December 14th, 2016

In our office, we see a variety of mistakes made by clients, many of which have an impact on the outcome of their divorce in terms of the division of assets, awards of alimony and/or attorney’s fees, and even in the determination of custody of the minor children. Keep in mind that much of the financial responsibility is the responsibility of the non-custodial parent. Do not ruin your own finances. Do not allow the potential future cost of your children’s college education to be forgotten in your divorce – your spouse owes his or her fair share. After all, the minor children did not ask to be brought into this world; both of you created them, and BOTH of you are responsible for giving them a fair shot in life.

1. When things get rough at home I should move somewhere else. False (with some caveats). The most common mistake we see is the belief that one can simply leave the marital home when things go sour. Our advice to any client is that leaving the home prior to a court order being issued is a mistake, unless of course there is a legitimate fear for you own safety or for the safety of the minor children. Many Chancery Courts in Mississippi routinely rule that the party who has left the marital home without proof of provocation forfeits his or her equitable share of the value/equity of the marital domicile. Trust the advice of a trained professional and duly licensed attorney before making a hasty decision to jump ship altogether.

2. It is okay to start dating as long as I am separated from my spouse. False. Mississippi does not recognize legal separation, and if children are involved, you automatically start out “behind” in terms of the factors considered by the court in an award of custody – Albright v. Albright considers moral fitness as well as continuity of care, so tread very lightly and perhaps just try to enjoy being single for a while (until your marriage is officially dissolved). Also, the Chancery Courts in Mississippi will generally give favor to the adult in the room, i.e., the person who valued the sanctity of marriage until the bitter end, regardless of fault.

3. It is acceptable to drain our joint bank accounts. After all, they are in my name also. False (With a few exceptions). There may in fact be circumstances wherein you should attempt to recoup losses or ensure that future bills will be paid, but this is a challenging and complicated issue. We recommend that you consult with your attorney before taking any such measures, and keep in mind that any action you take out of anger or spite will likely be adverse for you when your case is heard by a Mississippi Chancellor.

4. It is okay to utilize social media to vent about my spouse. We have freedom of speech, after all. False. Any disparaging of your spouse is not solely in the context of personal free speech when children are involved. The Chancery Court is the ultimate arbiter (a.k.a. the super-guardian) of all minor children within its jurisdiction. Using Facebook, Twitter, Instagram, Snapchat, or any other social media platform as a forum to vent your frustration is ill-advised. Exercise patience and trust the court to make a fair and consistent judgment, one that will be in the best interests of your children. Divorce, even when relatively amicable, is never easy, and it can be tempting to vent your frustrations or to seek emotional support on social media. However, it’s important to keep in mind that this type of behavior rarely, if ever, earns you favor in a Mississippi Chancery Court.

5. It is my right to choose to minimize my spouse’s contact with the children until the divorce is final. False. (With rare exception). The only legitimate reason to become an obstacle to your spouse’s visitation with your minor children prior to a divorce being finalized is when there are safety concerns which can be shown by proof – if the evidence does not demonstrate that your children are in danger when in the care of your spouse, be careful. The last position you want to be in is to have to explain why you took the reins of child custody without the permission of the court. Remember, the Chancery Court is the legal “super-guardian” of all children within its jurisdiction, and that responsibility is taken incredibly seriously.

If you have a question about this article or about child custody in general (whether in the context of a divorce or otherwise), or if you simply would like to share your input, we would love to hear from you. Please feel free to contact The Law Office of Matthew Poole, via telephone at (601) 573-7429 or email at matthewspoole@gmail.com. We are best equipped to assess your situation and give you some practical advice on steps you can take to receive a favorable result in Mississippi Chancery Court.