Posts Tagged ‘divorce laws’

Divorce Quick Guide…..the “Cliff Notes”

Monday, July 22nd, 2019

Here is a quick guide as to divorce grounds in Mississippi……this list includes all recognized grounds and basic judicial interpretation of those reasons for legal rights to divorcing. Sometimes several are applicable to divorcing spouses.

FAULT-BASED GROUNDS FOR DIVORCE (Miss. Code Ann. 93-5-1)

Natural Impotency……..The Mississippi Supreme Court has held that divorce on this ground was not permitted where a woman’s physical condition made intercourse painful and where she pursued treatment. Sarphie v. Sarphie, 177 So. 358 (Miss. 1937

Adultery………Adultery is “voluntary sexual intercourse on the part of either spouse with a person other than his or her own spouse.” Owen v. Gerity, 422 So. 2d 284 (Miss. 1982). Adultery may be shown by circumstantial proof or a generally adulterous nature, combined with evidence of a reasonable opportunity to satisfy the infatuation of proclivity. McAdory v. McAdory, 608 So.2d 695 (Miss.1992). Direct evidence is not required. No need to have concrete proof!

Being sentenced to a penitentiary………..The statute was, several years ago, amended to read “sentenced to any penitentiary.”

Desertion….willful, continued, obstinate desertion for the marital space or domicile for a period of one year.

Constructive Desertion (as an option where physical desertion is not available)………Mississippi recognizes constructive desertion (where on spouse engages in conduct that forces the other to leave the marital home or renders the continuation of the marriage “unendurable”. (A subjective standard).

Refusal to have sexual relations (as a form of constructive desertion)…… This must be long-standing and without good cause, such as physical pain from intercourse.

Refusal to reconcile (as a form of constructive desertion and/or desertion).

Desertion may occur when on spouse leaves the marital home, then makes a good faith effort at reconciliation and the other spouse rejects the offer. Day v. Day. 501So.2d 353 (Miss. 1987).

Habitual drunkenness……..This one needs little explanation.

Habitual use of opium or “other like drug”….note that the Court of Appeals has broadened the definition of other “like” drugs. Marijuana is now considered a “like” drug by our courts due to the effects of its use.

Habitual cruel and inhuman treatment………The courts state that the cruelty required is not such as merely to render the marriage undesirable or unpleasant. Where both parties file on this ground, the chancellor must determine who is more at fault and grant the divorce to the other party. Hyer v. Hyer, 636 So.2d 381 (Miss. 1994).

Incurable Insanity at the time of the marriage, if the complainant was without knowledge of the insanity.

Marriage to some other person at the time of the purported marriage.

Pregnancy of the wife by another at the time of the marriage, without the husband’s knowledge.

Relation within the prohibited degrees of kindred, (a.k.a. incest).

Defenses to Divorce

Recrimination………Recrimination is the doctrine that if both spouses are guilty of fault, neither is entitled to divorce. Until 1964, this doctrine required that a Chancellor refuse to grant a divorce where both spouses were at fault. Miss. Code Ann 93-5-3 now provides that it is not mandatory that a Chancellor deny a divorce, even though the evidence may establish recrimination.

Insanity……..Insanity may be a defense to divorce based upon adultery, desertion, or cruelty.

Condonation……….Condonation is forgiveness of the marital fault by the wronged spouse, with the understanding that the conduct is not to recur. It is conditional, based upon the “good behavior” of the spouse at fault. If the conduct recurs, the defense is removed. Condonation may result from express forgiveness, or be implied from a resumption of the marital relationship after knowledge of the conduct.

Mere resumption of residence without resumption of sexual relations does not necessarily indicate condonation. Cherry v. Cherry, 593 So.2d 13 (Miss.1991).

Connivance………Connivance is one spouse’s implicit consent to the wrongful conduct of the other. The defense of connivance arises from the fault-based notion of a “wronged” spouse; if the innocent spouse did not object to the conduct, he or she has not been wronged. It typically applies to adultery claims.

Collusion……..Collusion occurs when the parties agree to frustrate the divorce procedure in some way, by creating grounds, or by agreeing not to defend a case, MS Code Ann 93-5-7 requires that for every divorce except those on the ground of irreconcilable differences, the parties must attach an affidavit stating that the action is not the basis of collusion.

Provocation……..This is a bar to divorce where the complainant provoked the conduct to the wrongdoing spouse most likely be used in response to a divorce action based upon desertion. This act allows a stay of proceeding for persons in the military and must be granted unless it can be shown that the applicant’s rights will not be materially affected by the proceeding.

Matthew Poole is a Jackson, MS family lawyer specializing in custody and custody modification matters. He was admitted to the Mississippi Bar in 2004.

Messy Divorces: A Few Tips and One BIG Key

Thursday, February 21st, 2019

Most people seeking divorce are surprised at the complexity and cost associated, particularly when assets and child custody issues are hotly contested. One thing I have learned in 15 years and 1,300-ish domestic cases later is that clients will either be an asset for fair resolution or they will get in their own way to the extent of holding up a fair and final resolution for them and their children. My goal here is to help you the former and avoid being the later……even if the advice isn’t exactly what you wanted to hear.

Let’s start by starting some fairly obvious things you may need to be reminded of. First, never forget that marriage is a partnership, and our state begins any divorce with the notion that what is yours is his and vice versa. It is not to far different than a business partnership for the purposes of our discussion.

Secondly, Chancery Court judges do not value a litigant who comes across as angry, vindictive, or belligerent. To put it lightly, your testimony will be tainted as long as those attitudes persist. Coming across as the nice person you hopefully are will go further than you might think. A courtroom will never be a sparring match where overt aggression is effective, although there is a time and place for heavy-handed techniques. Trust your lawyer and avoid being the bad cop.

Third, do not assume that the court is familiar with every facet of your case. Specific evidence, be it documentation, witness testimony, an object, even your own diary need to be presented in a clean, thorough and articulate manner or expect that they are unknown to the judge. Keep in mind, hundreds of cases are on their docket at any given time.

Now the biggest and best for last. This tip is so important and also the most overlooked, largely because it is so very counter intuitive on its face. This tip is rooted deeply in basic human psychology, difficult to carry out, and may even require a degree of acting on your part.

So here it is after much adieu……..NEVER, EVER let your spouse know how badly you want out. They will expect you to give up more and take less. They will smell blood in the water and become a shark. Avoid this trap and you won’t have to “buy” your way out of an unhappy marriage. This is tough to execute, but trust me, it works.

Matthew Poole General Biography, 2019

Matthew has lived in the Jackson area since 1989 and is an honors graduate of Jackson Preparatory School, Millsaps College Political Science Department as the recipient of the Second Century Scholarship, and the University of Mississippi School of Law. At Ole Miss, he was named Finalist of the Steen, Reynolds, and Dalehite Trial Competition in 2003.

He began his legal career at the Mississippi Attorney General’s Office in 2004 after graduating from Ole Miss Law and served in the executive division as a policy advisor to Jim Hood and assisted in formulating Department of Human Services practices and procedure as well as administrative procedures in the areas of civil and insurance related litigation.

After leaving government service, he spent 2004 and 2005 serving as associate trial counsel at Wilkins, Stephen’s and Tipton and represented Medical Assurance Corporation, G.E. Medical Protective Corporation, Merck Pharmaceuticals, and GlaxoSmithKline Corporation.

Matthew opened his domestic litigation practice in 2005 and has taken over 300 domestic cases through final trial. He has been named a Top Ten Mississippi Domestic Attorney twice since 2014. He has been honored to serve as Justice at the Mississippi College School of Law’s annual Copeland Cook Taylor and Bush Moot Court Competition on several occasions.

Matthew has a nine year old son, Lucas, and is particularly focused on custody matters and modifications as well as contempt issues that are associated with them. He is passionate in advocacy for single parents and children who are the victims of abuse and neglect.

The Crucial Divorce Moment: Talking to Your Spouse

Monday, October 29th, 2018

Divorce is a tough topic of conversation, even with friends and family. It presents even more cumbersome challenges when faced with the prospect of speaking with your spouse about severing the bonds you made in matrimony. Is there any advice that can help someone who is faced with the prospect of divorce? Severing marital bonds is tough, especially when children are in the mix. Innocent lives will be forever changed both during and after a divorce. How can one rise to the challenge and protect those affected by the fallout? No easy answer exists but a path forward to peace and your childrens’ happiness does.

One piece of sage advice for those facing divorce is that patience is in fact very beneficial. It is ironic yet true that often life presents choices that are either difficult, or simple and ill-conceived. Divorce is no exception from that truism. It may be true that no one truly “wins” a divorce, but certainly someone will always get the shorter end of the stick. When considering the depth and breadth of college expenses, alimony, division of a marital estate, and all other support belonging to your children, the numbers and commas grow to the point of causing fear and severe anxiety in most divorce litigants. It simply comes with the territory.

Although this is no new topic to those who regularly read my blog, it is sufficiently crucial that those in failing marriages recognize the bare truth: having communication with your spouse is just as important as it was when you were dating. It is too easy to forget that a simple civil discussion can save not only thousands of dollars in attorney fees but the stress that accompanies prolonged litigation. Extensive litigation can be avoided in most cases if one is willing to swallow their pride and put animosity to the side. It is fully possible to be your own best advocate and to advance your cause without the involvement of attorneys.

The average cost of raising a child is now approximately a quarter of a million dollars according to Time Magazine. This figure excludes post high school education and related expenses and also does not include gifts and vehicle/transportation expenses. It always shocks me that non-custodial parents feel strongly adverse to forfeiting 14% of their take home pay for a single child’s support, 20% for two children, and 22% for three. It seems to be a drop in the bucket when considering the larger financial picture. I struggle to believe that custodial parents have it any easier.

Where does one begin the tough topic of divorce with their spouse? My best advice is to keep it simple and to avoid the emotional topics, at least initially. Make a solid attempt at agreeing to child support, health and life insurance, and visitation. If you are unable to get past those three crucial pillars of divorce, you may have no option but to fight for what is fair and just. However, be aware that Mississippi Chancellors are primarily concerned with the best interests of children. Seldom does a judge blatantly view only one side of the complex equation which is divorce.

If you are neck-deep in the divorce process and would like to attempt a no-fault resolution, let us know and we will gladly attempt to point you in the right direction. If you have already explored your options to the fullest and seek the intervention of the court, we are fully able to accomplish reasonable goals on behalf of our clients. It is up to you to take the first step.

Matthew Poole is a Jackson, Mississippi family attorney specializing in domestic conflict resolution. He was selected as a 2018 top 10 family lawyer by the National Association of Family Attorneys.

Are Demands for Joint Child Custody Legitimate? Less Often Than You May Think

Saturday, October 6th, 2018

First, I would like to suggest that anyone reading this go back to the prior post that relates quite directly to this topic. In short, that post essentially is an exploration as to the risks and rewards of children sharing near-equal time with both parents. There has been significant debate on the question of whether our court mandated restrictions on joint physical child custody is helpful or hurtful to innocent lives.

It is more than remotely possible that we will soon see legislation which attempts to level the playing field for non-custodial parents. As such, there is an entirely different lens by which to consider requests for joint custody; ask yourself, is it often being used as a tool to avoid child support obligations? My answer is an unequivocal YES.

At my office, a common topic of conversation revolves around what it means to be an ideal client. We receive possibly in excess of 10 calls per month that start the same way. “Mr. Poole, I want joint custody of my child”. I always make sure to attempt quickly ascertaining whether the caller, by and large the father, truly can and does have the motivation to seek joint physical custody. More often than not, these callers are delinquent in child support and will do just about anything to lessen their loads. These are not ideal clients for a single father like myself….not even close.

We love nothing more than fighting for the ideal parent, whose sole motivation is derived from love for their kids. Often, fathers are properly motivated and well-intentioned, but unfortunately this is not always the case. An ideal client is first an ideal parent. Seems simple enough, right? Never forget that, as noted in our previous article a parent will almost never be granted true equal custody. Standard visitation is the law of the land with a few notable exceptions, most often being agreement or preclusion based on employment obligations.

What can we learn here? A few couple of things stand out to me. First, non-custodial parents are often not motivated by the right things. Secondly, there would not be such a huge amount of domestic litigation if everyone were reasonable. Kids are expensive, and mom and dad need to partner for the sake of their little ones. Avoiding payment of support is the oldest trick in the book, but a fair result is always possible. Unfortunately for a parent who is ill-motivated, they can and will be easily exposed.

Matthew Poole is a Jackson, MS family lawyer focused on results in challenging custody and divorce matters. He is a 2001 Millsaps Second Century Scholar and Finalist of Steen Reynolds, and Dalehite Trial Competition.