Posts Tagged ‘Divorce’

ALIMONY IN MISSISSIPPI – AN OVERVIEW

Monday, November 18th, 2019

By Michael Louvier

The subject of Alimony has been often discussed on this site; however, it is always appropriate to review such an important topic.  With that in mind, please allow a few paragraphs to set forth the general guidelines of Alimony.

                The Mississippi Supreme Court set forth the guidelines for an award of alimony in Mississippi divorce cases in the case of Armstrong v. Armstrong, 618 So.2d 1278 (1993).  They are:

  1. The income and expenses of the parties;
  2. The health and earning capacities of the parties;
  3. The financial needs of each party;
  4. The obligations and income of each party;
  5. The length of the marriage;
  6. The presence (or absence) of minor children in the home, which may require that one or both of the parties either pay or personally provide child care;
  7. The age of the parties;
  8. The standard of living of the parties, both during the marriage and at the time of the support determination;
  9. The tax consequences of the spousal support order;
  10. Fault or misconduct of either party;
  11. Any wasteful dissipation of assets by either party, or;
  12. Any other factor deemed by the Court to be “just and equitable” in connection with the setting of spousal support.

This list of criteria, of course, can be found on a myriad of web sites and searches.  That said, I believe it is still useful to spell them out – to have them in plain writing before going forward with any analysis of the “Armstrong factors”.  As always, this medium does not lend itself to an “end all – be all” examination of this or any subject.  Rather, this is meant for you, the reader, to become a bit more educated on the subject matter while allowing me, the writer, to delve topic by topic into some of the real nuts and bolts of domestic relations practice.

I am personally very intrigued by a specific few of the above listed items, more so than the others and they are:  numbers 8, 10 and (almost “of course”) 12.  The use of the word “OR” between 11 and 12 instead of the word “AND” is also very interesting to me.  Let us explore.

I’ll start with number 12.  This provision is commonly referred to as a “catch all” by attorneys.  Whenever the Court uses the phrase “any other factors…”, this is an open invitation for the Chancellor to interpose his or her own beliefs about the case into the decision.  This is not necessarily a bad thing, as there may be something that is revealed in the case that screams for the award of, or the denial of alimony that does not quite fit into the other 11 specific factors.  And the Chancellor’s discretion should always be allowed, to some extent.  After all, the Chancellor is the finder of fact in the case – the Judge and the jury.  Some would argue; however, that this unilateral type of discretion inherently lends itself to grounds for appeal – whichever way the Chancellor decides.  As Voltaire so eloquently said:  “power corrupts, absolute power corrupts absolutely”. 

A Chancellor should never use this last provision as the deciding factor, lest we believe that the possibility of corruption in this important decision be present, or even possible.  Far be it from me to suggest that a Chancellor would favor one side over the other for 11 factors and then choose to employ the catch-all to rule against that party…in fact my cursory research tells me that such a situation has not been reported in Mississippi Courts.  Good.  As it should be. 

Factor number 10 is interesting to me for the simple fact that marital misconduct can give rise to grounds for the divorce itself, without which there can be no claim for alimony in any form.  Therefore, a party found to be responsible for marital misconduct (drug abuse, an adulterous affair, habitual cruel treatment toward the spouse, etc) can be penalized twice: once in the granting of the divorce and again in the award for alimony.   

Factor number 8 is intriguing because we are all aware that financial difficulties leads to many, if not most divorces.  Therefore, if the standard of living that a spouse has become used to during the marriage is the main reason for the breakdown of the marriage; that is, a couple is living well beyond the means of the main bread winner and that causes or contributes to the demise of the marriage, should the bread winner be Ordered to continue to provide that lifestyle for the ex?           

                Finally, the use of the word or at the completion of the list of factors indicates that the Court can Order alimony based on only a few, or perhaps even only one, factor being present.  This is unlike a case where child custody is the issue and the Albright factors are used as a kind of “score card” for the Chancellor to make a decision.  As discussed above, the Chancellor can employ only one factor or maybe a few, to determine whether or not a divorce should be granted and whether or not an award for alimony is appropriate. 

Michael Louvier received a Bachelor of Arts (Political Science) from the University of New Orleans, 1988 and a Juris Doctorate from Mississippi College School of Law, 1994.  He has been married to Tammy Luquette Louvier for 29 years and they have 2 children:  Amy, 25 and Nicholas, 21.

Married and Mourning? Consider This First

Monday, November 11th, 2019

Sociologist Linda J. Waite and several contributing authors wrote a peer-reviewed study looking at several assumptions about happiness before and after dissolution of marriages that were deemed to be unhappy by the study participants…both women and men. It is 44 pages long and exhaustively looks at a variety of issues anyone contemplating divorce should consider. It is published by the American Institute of Family Values and can be downloaded from their site as a pdf. file. The article title is “Does Divorce Make People Happy?”. Googling the title and author will be worth your time if you are considering a divorce. It is the best in terms of both randomization and completion that I have seen to date for a variety of reasons.

One narrative that has been often floated in modern society and media is that women tend to be happier than men after divorce and tend to be more likely to remarry. There is some related information published by authors of smaller case studies than the Linda Waite study I reviewed over the weekend. The case in point looks at over 10,000 divorces…by far the most I have seen examined and followed up upon yet. Many of the other surveys utilized much smaller statistical samples, some even less than 800 couples.

I am no statistical genius, but I do know that larger randomized samples are more reliable. Of course, the manner in which the questions are asked also creates some interesting disparity and issues regarding the quality of random samples. For instance, if we pulled a sample from only New York City, the study is flawed and so are the conclusions. That is not a representation of all marriage…the geography imparts social values that are unique by law and culture. Statisticians consider this need for actual randomization crucial to the Z Factor and other measures of the strength of a correlation.

I suppose many would argue that imparting a person’s gender into this conversation is irrelevant, but I disagree. I firmly believe that men and women most often bring very different mindsets into the divorce process. Their results often vary based upon child-rearing and income as well. Although no two cases are exactly alike, the theory that women are happier and that their ex-husbands are more likely to be miserable seems a bit suspect. Both tend to suffer at a nearly equal rate after divorce in my experience.

After looking at Ms. Waite’s extensive work in detail, it is more clear to me that two conclusions can be drawn.

Conclusion 1

Very few people of either sex are extremely happy with their decision to divorce. Most often there is some degree of second-guessing that occurs and the level of doubt truly runs the gamut. Happiness is not easily attained by divorce alone. Constrained finances, increase in cost of living, and, as a truism, two really can live cheaper than one are in play. Also, sharing the kids and the associated expense is not exactly an easy task.

Conclusion 2

There is little difference, if any, related to gender. In other words, the narrative that women move on more easily is not well-substantiated by this enormous study.

I wish I had a clear answer as to why the differences in the data are often so glaring. It seems to me that some of the studies which are not reviewed by peers are questionable. Some even seem to encourage divorce for women. I have yet to find any similar studies finding that men move on more easily. It is truly puzzling. Although I am not sure that the studies indicating women happiness after marriage are what Trump would call “fake news”, there are certainly some yellow (maybe even red) flags to recognize.

In the end, it seems to me that divorce is far too personal and complex to allow people who do not know you intimately give their opinions without scrutiny. If an article/study seems to have an agenda, be cautious. If an attorney appears willing to push you in the direction of divorce, trust your instincts first. It is always easy to seek support and comfort in this difficult time, but do not forget that you are still most likely vulnerable and open to suggestion more than you are in a calm state of mind.

Encouraging or glorifying divorce is almost never the right way forward. Sometimes it is simply a last resort to protect the happiness of both you and your children. The best, most reliable social science has only one agenda…not having an agenda at all.

How Chancery Judges Decide Your Fate

Friday, November 8th, 2019

Reflecting on 16 years of practice in Mississippi Chancery Courts has led me to an understanding of what it takes to win a close case.  Chancery judges are not always an easy read, but there are certainly some common themes that play out when seeking a positive result.  Child custody and divorce are not simple matters and require a great deal of preparation in order to walk out of the courthouse with a victory.  It always amazes me that some believe there is a simple solution to a very complex problem.  Simply put, there are a lot of moving parts and angles to approach.  So, what are the common denominators?  Some may not be exactly what you would expect.

Years ago, I had a particular judge in the northern part of our state that I could not seem to get to see my point of view…ever.  It was a frustrating experience.  Although most litigation is on a razor’s edge (a close call, or it would have been settled), even the calls that seemed to be clear I would get the shorter end of the stick. 

Toward the latter point in litigating a custody fight in front of this frustrating judge, a good friend gave me some advice that I will not ever forget.  Essentially, he said, “Matt, next time you go in front of this judge, act as if you think they are the best judge on the planet…that you have incredible respect for them and their decision-making ability.  It sounds silly, but it works”.  And it did work.  Suddenly I was winning the close calls.  My frustration was working against me the whole time, unbeknownst to me.  Law is more art than science.

It is so true that in many ways litigation is a replication of general, simple life principles.  Chancery judges are very quick to spot dishonesty and a vindictive persona.  It is important to remember that having a client that is hell-bent on destroying their spouse/ex is not an easy endeavor.  I cannot stress enough the importance of attitude.  If your client is calm, collected, even sad, those things resonate with the court.  When they walk in pounding on the table and angry, the lawyer had a much more challenging task.  People often forget that the judge has heard more fussing in a month than they have in their entire life.  Make them want to listen to you by being the cooler head in the room…it works.

As a final thought, it is absolutely imperative to ensure that you bring credible witnesses with you.  I cannot count the times that an opponent brought a convicted felon to testify for them, or even someone with several misdemeanors.  People who have lost custody of their kids do not exactly make great witnesses either.  It is amazing that some attorneys do not properly vet the witnesses they call to the stand.  I would even argue that bringing the wrong person to testify has not a neutral but a negative effect because it reflects poor judgment on the client…and the attorney who called the less than magnetic witness. 

There is an old saying…”Those who can see have the world in common”.  When you get to court, never forget that the judge is more reliant on common sense and intuition than law.  Although to some it may seem unfair, they are going to find a law to justify their decision, one way or another.  Don’t be a victim of your own emotion and you will come out with a fair result every time.  After all, law is more art than science.

Matthew Poole is a Jackson, Mississippi Domestic Attorney and single father.  He has managed over 1,300 family law matters since 2004.

Battered Woman Syndrome…All Too Common

Thursday, October 31st, 2019

Battered woman syndrome (BWS) is a psychological condition and describes a pattern of dysfunctional behavior that develops in victims of domestic violence as a result of serious, extended abuse. BWS is dangerous in part because it can lead to what some psychologists often state is a “learned helplessness” — or psychological paralysis — wherein the victim becomes so very depressed, defeated, and also so passive that she believes that she is not capable of leaving the relationship without her own destruction.  While there is no question that claims of abuse are often manufactured, many women are legitimately abused at the hands of a bigger and stronger male companion, husband or otherwise.  What a shame.  As Voltaire once said, “Power corrupts, and absolute power corrupts absolutely”.

What is a “syndrome”?  Is the term often used incorrectly?  How does it apply to an abused wife?  Let’s take a look at Merriam Webster’s definition and try to shed some light. 

Definition of syndrome

1: a group of signs and symptoms that occur together and characterize a particular abnormality or condition

2: a set of concurrent things (such as emotions or actions) that usually form an identifiable pattern

The more I have dealt with abused women, it reminds me of the similarities between BWS and Stockholm Syndrome.  The human psyche is immersing and deep.  If you have ever read about people who are kidnapped, held against their will, you may be familiar with Stockholm Syndrome.  It is essentially a psychological defense mechanism that allows an abused, subjected person to cope with their present challenge.  Although it does appear sickening to an outsider, this defense mechanism is often the best route for the subjected, unfortunately. 

Stockholm syndrome is a condition which causes hostages to develop a psychological alliance with their captors during captivity.  These alliances result from a bond formed between captor and captives during intimate time together, but they are generally considered irrational in light of the danger or risk endured by the victims. The FBI’s Hostage Barricade Database System and Law Enforcement Bulletin indicate that approximately 8% of kidnapped victims show evidence of Stockholm syndrome.  It is not much different from the signs shown by a battered wife.

This term was first used in the media in 1973 when four hostages were taken during a bank robbery in Stockholm, Sweden. These hostages defended their captors after being released and would not agree to testify in court against the suspects. Stockholm syndrome is quite paradoxical because the sympathetic feelings that captives feel towards their captors are the opposite of the disdain which an onlooker will feel towards the captors.  Again, the similarities with BWS are extraordinary.

One key point that always stands out to me about the psychological makeup of battered women is that the men they are with are always lacking core confidence.  Instead of loving and caring about their wives, they have no other medium than abuse, control, and bringing down the one they married or have an intimate relationship with.  There is simply no workable path in marriage that allows for abuse and control.  Confident men are a breed apart.  They will not resort to anything that harms the one that they married.

My advice to a battered woman is simple.  If in fact you are being abused, remember that victims act like they are abused.  Multiple occurrences of abuse that are swept under the proverbial rug are going to appear less than credible.  Even though the mindset of a true victim is difficult to fully comprehend to an onlooker, you must be aware that perception from the outside is very powerful.  The perception a chancery judge has regarding your credibility is even more so.  If you are being abused, find the strength to confide in those who care about you.  Find the will to get away, because there are always people who care…if you have the desire to look around you.

Battery of women is commonplace.  When you find the will to get far away from an abuser, know that you are better off without them, even if you stay single for the rest of your life.  Understand that a chancery judge will question the merits of your claims, and with some degree of skepticism.  For those who have never been true victims, it is difficult to understand why you stayed.

Divorce Dilemma: Stay or Leave

Friday, October 25th, 2019

There is little question that many divorcing couples are faced with a tough choice…whether to leave the marital home.  Oftentimes in domestic violence scenarios, one has little choice.  What impact does this have on the outcome in a divorce?  Does the spouse who leaves forfeit marital equity as a matter of fact?  We will also consider not only domestic violence, but other related issues that commonly prompt one spouse to head for the door…adultery. 

One very common mistake we see is a spouse who alleges physical abuse but stays in the home anyway.  Usually this scenario occurs when someone has a small child and no real options on the table other than maintaining the status quo.  Verbal abuse and emotional damage that ensues are also commonly alleged.  They must be extreme and continuing or they are not legally actionable.  So, let’s take a look at two hypothetical scenarios regarding 1. Physical abuse, and 2. Verbal abuse.

Physical Abuse

Although men can certainly be victims of physical abuse, I am going to present the more common scenario in this hypothetical wherein a woman is the victim.  Too often, women are harmed by their spouse in moments of anger.  Although the #metoo movement certainly has some valid detractors, it also demonstrates that abuse, be it sexual or violent, is far too common.  There is also no question that some women will cry wolf in order to leave their husband for other reasons (found another lover for instance). 

As a society, the popularization of abuse claims is both a blessing and a curse.  As has been said, if it’s not paradoxical, it isn’t true.  Any woman who is being abused needs to have documented every instance, and that usually means doing the simple things first…calling the police.  When she fails to do so and then walks into chancery court and claims she was abused but stayed anyway, she has a tough hill to climb.  Photographic evidence is always helpful, but in the cases where she has close friends nearby, family who live close, the likelihood of her being impeached and found not credible increase significantly.  If she had no option but taking the young ones to the nearest Motel 6, she is on much stronger ground.  

In short, wives must always consider the totality of circumstances when alleging habitual cruelty when they remain silent.  If she was physically harmed multiple times in the marriage and failed to contact the police, she can often deflect any attempt to impeach by arguing that she suffers from Battered Wife Syndrome.  It is the only method that will have an effect on the court for the women that remained silent for too long and failed to leave their abusive spouse. 

Verbal Abuse

Accusations of verbal abuse occur in almost every divorce we have ever handled.  While yelling, screaming, and cursing can be a ground for divorce for habitual cruel and inhuman treatment (not inhumane, which is a slightly different term in the context).  Let’s look briefly at what would and would not constitute cruel and inhuman treatment.  It must also be noted that the word habitual is particularly important in divorce claims that allege solely verbal assaults. 

First, make no mistake that the verbal abuse must be extreme.  Getting into a couple of shouting matches will not suffice as a ground for divorce.  The tongue lashings must have persisted for a period of time that convinces the court you have been treated in a way that is inhuman.  In other words, you must have been treated with so little respect that no reasonable person could possibly endure the abuse.  This is what lawyers refer to as a subjective, rather than objective standard. 

It boils down to having to show the court that no reasonable person would be able to perform their marital duties under the circumstances.  If you can demonstrate that the hail of your spouse’s verbal bullets were both extreme AND pervasive, you have likely earned your way out of an unhappy marriage.  If you are seeing someone else (romantically of course) and simply want out, got into a few screaming contests, be forewarned:  you will not get a good result in court.

For anyone seeking a divorce, always remember that courts of equity are judging your every action and inaction of marital duties.  Even though only God can judge you in the end, make no mistake that you will be judged by a Chancellor in this lifetime.  At the end of the day, never forget that the person who is granted the divorce (and gets a better result) is the one who is less at fault. 

Although it is true that there is almost always blame to share, if you were decent and kind in marriage, the court will reward you.  The little things you were taught as a child can make a world of difference.  After all, what you really need to know most in life, and in divorce, you probably learned in kindergarten.

Do Chancery Judges Have a Sixth Sense?

Thursday, September 19th, 2019

Before getting into the nitty-gritty details of my experiences with Mississippi Chancellors, I must say that we have a unique system to determine divorce and custody matters in our state.  Only 5 states in the U.S. have chancery court systems. They are based on English common-law and principles of equity (fairness). Without a doubt, the big difference between chancery and other courts is that a chancellor is not only the final interpreter of law on point, but also the ultimate fact-finder.  This requires playing somewhat of a “dual role” in making determinations that affect not only a divorcing couple, but their children and extended families. So, after 1,300+ domestic cases, do I believe that chancellors have a heightened ability to sense what is not directly in front of them? Yes, and it is largely because they have significant experience in detecting the motivations of those who appear in their courtrooms.  

When in court, attorneys are commonly making points based upon evidence that can be seen and heard.  Most of the proof that we present on a daily basis consists of not only the testimony of witnesses, but video, photographs, documents, and audio recording.  While these are what I would call “empirical” evidence, they are not the only consideration for a fact finder. For instance, let us take a brief look at criminal jury trials.  They are a contrast to chancery proceedings in many ways. The judge has a singular role: interpreter of law. The jury has one role as well: find the facts. That fact-finding is not exactly an exact science.  It is highly nuanced…subjective as all get-out. Reasonable minds can disagree and often do. After hearing testimony and seeing all of the evidence, we can and will come to different, often ant-opposite of conclusions.  That is simple human nature.

Chancellors are the equivalent of both the judge and jury.  Not only do they interpret law, they are the sole fact-finder in divorce and custody actions.  They have to rely on their God-given instincts in close cases. Having seen the inner-workings of the chancery system in Mississippi, I can without question say that chancery judges tend to have a heightened intuition.  It is necessary when determining who is truthful and who is not. That gut instinct decides the outcome of so many close cases. Most of them are close, or they tend to settle prior to trial. Think of all the times you likely disagreed with a jury.  Without pointing to any specific cases, you can surely name a few of your own.

Most divorces and child custody matters are close calls.  Many lack any concrete proof at all. There are almost never any smoking guns or red hands to be caught.  The proof is almost always what I would call luke-warm…even circumstantial. The best approach in any chancery court is to build credibility by telling the truth.  Consistency goes a long way, as it should. Chancellors are pretty good human lie detectors.  

My advice to anyone going through a difficult custody case, divorce, or visitation issue is to be cool-headed and calm.  Be consistent and voice your concern for your children. Do not worry about shaming your spouse, your ex. It will not build credibility with the judge.  Your testimony will be weaker than it could have been when the focus is taken off of your kids. It is always better not to voice the raw emotion that a breakup causes.  The children are what matters now, and the judge could care less how much you may dislike your ex. They hear all too much of it on a daily basis. It gets tiresome, and quickly.

If you end up in court over a disagreement about your kids, your finances, do yourself a favor and relax.  Chancery judges love nothing more than a reasonable, calm litigant who is able to have a laser focus on what matters and ignore what does not.  Kids need structure and stability to thrive. They need a routine that is predictable and not jolted by emotion. If you are able to tap into this thinking, you just increased your odds of obtaining a positive outcome in a tough life moment.

Matthew Poole is a Single Father and Jackson Mississippi Family Lawyer, Recipient of the National Family Lawyer Association Top 10 Award in 2015 and 2018 and Finalist of the Steen Reynolds and Dalehite Trial Competition.  He was admitted to the Mississippi Bar in 2004.

Who is Edgar Egbert, the Madison County Shooter?

Tuesday, September 10th, 2019

Last week, Deputy Brad Sullivan of the Madison County Sheriff’s Department was shot through the head with an AR-15 style rifle after police deployed stop sticks to prevent a speeding Jeep from injuring the public on Highway 16 near Canton.  It all stemmed from a domestic situation that resulted in a kidnapping, according to officials with Madison County. While the details have yet to fully emerge, we are all praying for his recovery while in the line of duty. He is a true hero for protecting the public.  God bless him. So many questions linger, but the primary suspect, Edgar James Egbert, is not saying anything, or at least hasn’t in his court appearances while being denied bond. He is probably wise to remain silent.

I know Edgar.  I was his divorce attorney in 2017-2018.  While I am not his biggest fan, he deserves a fair hearing despite his alleged actions.  Edgar is the father of five precious kids. He is now remarried. His new wife was incredibly excited when he popped the question.  That was barely a year ago. His life has been complex, especially after a divorce that had no easy end in sight. They rarely do.   

One of my first experiences with Edgar occurred shortly before Christmas 2017 at the Madison Chancery Court.  Judge Cynthia Brewer held a temporary hearing (which I often refer to as a “stop-gap” measure) and nothing particularly unusual transpired.  Visitation was addressed, some custody and child support was ordered as well. Edgar’s eldest child was about 13 at that time. He had moved to Georgia with his mom and four siblings a few months prior.  My initial read on Edgar was actually quite positive. I felt strongly that he had a soft heart.

After the hearing, Edgar went to his black Jeep, the one involved in the chase last week, and retrieved several presents for his kids.  He approached his son, who is a tall, handsome, quiet young man, and, smiling, handed him several gifts for he and his four sisters. Edgar was calm.  He seemed very caring, and I nearly teared up because I could feel the pain he was in at that moment. He had not seen his kids in months. I appreciated his gesture.  His eldest son said nothing. It was not clear to me whether this was an alienated child or one rightfully bitter at his dad. What I witnessed later made me form a fairly clear opinion.  

At trial several months later, details began to emerge.  I represented Edgar because I truly did, and do still believe that he missed and loved his babies.  My heart went out to him. The tragic events of September, 2019 seem to have appeared out of nowhere.  Although I could see his frustrations were mounting as a displaced dad, I did not see a cop-shooter in the making.  He did, and still does love those children. I am sure of it. Even though, if found guilty, there is no excuse on earth for his behavior, I wonder to myself if it all could have been prevented.  There are no easy answers.

I recently saw that, since my representation of Edgar, he has fallen far behind on child support payments.  His ex-wife, dejected and appearing beaten down during trial, does not work. She home schools the children.  She is reliant upon the good-will of others and her church to survive. So are the kids. Edgar was ordered to pay about $1,100. per month in support.  That’s about $220 per child. Any of you reading this can do the math. Fifty bucks a week doesn’t get a child far. And that amount was not being paid. Attorney’s fees have since mounted for he and his ex-wife.  This event has altered too many innocent lives. He was likely facing incarceration for the contempt that was imminent. There was really no path short of winning the lottery to solve his money problems, they grew exponentially and no end was in sight.  It is hard to ignore the financial roots that grew into this nightmare.  

This is a tragedy for too many reasons.  I know Brad Sullivan, if only vaguely. We must never forget that he likely will never be quite the same, but we can pray and hope for he and his family.  A headshot from any firearm (.223 Remington is more powerful than almost all handgun rounds) is incredibly horrific. It is amazing he is alive. He is one tough cop.   

Edgar’s wife and kids are also victims.  They will likely never have the present love of dad again.  He may very well still love them, but it is tough to see that love being easily reciprocated.  Edgar may also be a victim of his own missteps. While I want it clear that he deserves the presumption of innocence, the benefit of the doubt, the facts do not bear well for him at this point in my estimation.

While I cannot share every detail, I will say that the testimony regarding Edgar’s violent tendencies and drug abuse, marijuana in particular, has left me on one side of the legalization debate.  I also have formed a better understanding of the emotional turmoil a divorce can cause. A parent moving far, far away to escape an unhappy marriage is equivalent to a domestic nuclear explosion. The emotions are difficult to handle.  The pain is palpable, even to the attorneys.  

In the end, I can only ask that you pray not only for Brad, but for the children and family of Edgar Egbert and even Edgar himself.  It is a shame that this has happened and we cannot turn back time. Hopefully we can all learn something about the value of our personal relationships. When all the dust clears, hopefully we will love the ones we are with, even if just a little bit more.

Matthew Poole is a Jackson, Mississippi Family Attorney.  He was admitted in 2004 to the Mississippi Bar.

Modification Mayhem; How to Steer Clear

Thursday, September 5th, 2019

Child custody modification cases are always challenging for a variety of reasons.  First, it is important to recognize that Chancellors are inclined not to “rock the boat” by making drastic decisions about child placement without very good reasons.  They, as they should, need a parent seeking modification to present overwhelming reasons for a sudden change that affects every aspect of a child’s life.  Haphazard, swift decisions regarding children are frowned upon and avoided at all costs. 

I want to focus on a common scenario which occurs and attempt to illustrate the divergent paths it presents.  Quite often, a child turns 12 and is able to voice a preference to the court about where they want to live.  Although they do not get to “choose” (a common misconception), their voice plays a critical role in triggering and potentially effectuating a child-custody claim.  Although the maturity level of the child is not a technical factor in the weight of their preference, it will always play a critical role in the outcome of the modification claim.

I want to share with you a custody horror story, at least from the perspective of a former client.  Often the best lessons are had by failure, not success.  Many years ago, I was hired to prosecute a child custody claim in Rankin County, Mississippi on behalf of a mom whose son had recently turned 12.  We all met at my office and the child was quite clear about the strength of his desire to live with his mom.  I did not question his sincerity for a moment. 

Fast forward several months and we finally have our day in court at a final hearing (trial).  I called the young man to the stand and he performed as I expected.  When my opposing counsel had his shot at making his case, the child fell apart.  It went something like this:  “Young man, why is it that you want to live with your mom all of the sudden?”.  A fair question, right?  The boy then said, more or less, “My dad makes me go to bed at 10 o’clock and eat grilled chicken and vegetables.  I hate vegetables.  When I am with my mom she lets me do pretty much whatever I want.  I can have as much pizza as I want and I can play video games while she’s busy doing other stuff.  My dad is just too strict.”  Whew.  I heard the sound of my case deflate right in front of me.  The odds of winning were nil.  My client was upset and so was I, but he was just a kid after all.

I have seen first-hand how children will attempt to please both parents.  I have had clients hire me on modifications of custody only to realize later that their child was telling their ex that they wanted to stay with them.  Kids have a natural defense mechanism to make both parents happy.  They will tell both that they want to be with them.  It borders on dishonesty, but for the love of God, they are only kids and do not understand adult problems.  This is the way that they cope.  It is frustrating and can cost a client several wasted dollars, but nonetheless I understand the plight of the children torn between two parents that they dearly love.  We must, as the adults in the room, understand how to avoid this mayhem in the first place.  Our children deserve it. 

My advice is simple.  The mature children are going to be far more likely to stay with the parent they prefer.  I doubt many of them are 12.  Once a child has consistently voiced a mature, rational desire to stay with you, consider speaking to a lawyer about a change of custody.  Chancellors are privy to the fact that children are not always able to decide what is best for them.  You can avoid wasting thousands on a failed modification claim by allowing your child to come to their own conclusion. Be patient and kind.  Remember that they are feeling pressure from every direction.  And in the end, respect them and their innocence.  One day they will face adult problems.  It is your job, as a parent, to make it later than sooner.

Matthew Poole is a single father and Jackson, Mississippi Custody and Divorce Attorney with 16 years of experience.  He has managed over 1,300 domestic cases.

DIVORCE RATES DIVING?

Saturday, August 31st, 2019

I know what you are thinking, and I can already say that this trend occurs likely not for the reasons you may imagine. Unless you are a sociologist or simply very in-tune with social trends, it may surprise you that the real reasons, or at least the primary drivers of this trend, are not so obvious until we look at ourselves, our friends, and our families.

So many of the younger generation suffered through their parents’ divorces. They witnessed first-hand the turmoil and confusion that impacts everyone involved. They were often more victimized by their parents’ tit-for-tat than the parents themselves. Divorce is significantly stressful for kids. They become front and center in the turmoil. It should come as no surprise that they are more apt to wait before tying the knot. We certainly cannot blame them.

There is also a second driver of divorce rates diving. Millenials are not as financially well-off as their parents were at the same age. Although incomes may be similar (adjusted for inflation), costs of living are much higher. They are purchasing homes much later, have less money in the bank, and upward trending daily expenses. When you hear about inflation in our country hovering between 2 and 3 percent, ask yourself if things you buy on a daily basis (consumer goods) do not seem to have skyrocketed in price in the past decade. It sure feels that way to me.

Another factor lesser discussed has driven the divorce rate down. Here it is: People simply aren’t getting married at the rate they did in the past. I ran a simple Google search of “marriage and divorce rates U.S.”, and the results were surprisingly dramatic. If you click on “images” at the top results bar, you can visualize the strong trend in several telling graphs and charts. It seems to me that after World War II, young men returning home in droves altered our societal landscape. They were eager to start lives and have families. Their children were generally born in the mid 1950’s until the early 1970’s. Those former children are now in their fifties and even late sixties. Time sure does fly. Many (most) of you reading this are their kids. Theirs was a great generation in a very different time.

I also see the impact of social media, a term unknown to our dad, mom, aunts and uncles. They did not know that it would ever dominate our society the way it does today. Facebook, Instagram, Twitter, and so many others consume our daily lives. I believe they are great tools when used for the right reasons, but our communication with others we hardly know can also interfere with our most personal relationships.

We, as a country, have pushed the limits of change in so many ways. Time spent with family is too easily frittered away. Bank accounts are stretched to their limits. Daily pressures are at an all time high, and memories of being a child trapped in the eye of a stormy divorce still linger.

In the end, the best ways to avoid a divorce are more obvious than you realize. Sometimes we simply need to be reminded of what we already know.

Matthew Poole is a single father and Jackson, Mississippi Family Attorney. He was admitted to practice in 2004.

Avoiding Disaster: Divorce and Mortgages

Saturday, August 24th, 2019

Are you preparing for a divorce and have a mortgage on a home or other property?  Valuing these assets is fundamental in order to ensure that you receive a fair shake in severing your marriage.  What common issues need to be clear moving forward on a path to becoming single again? There are several, but the mortgage holder is almost always the key to knowing who should stay in the home and who goes.  Unless you want to be roommates with your ex for the foreseeable future, follow this advice.  

A retired Chancellor from Rankin County, Honorable John Grant, used to say repeatedly that “Two can live cheaper than one”. The reason that credit bureaus will ding your score for a divorce is quite clear:  unless your income increases substantially, a divorce will always negatively impact your overall financial health. When two people own a home in a community property state such as Mississippi, they have essentially formed a joint business venture.  When the home is mortgaged in both parties’ names, both incomes are considered by the bank in determining whether or not to grant the loan application and provide credit. They are not particularly keen on allowing an otherwise responsible obligor (or “customer” in bankspeak) off of the hook.  Why should they be? They have a responsibility to their shareholders to ensure investment in mortgage assets are repaid at as high a rate as possible.

Very many divorced people ask me after the fact why it is that they cannot repurchase another home.  Unfortunately they have almost always suffered from poor lawyering and improper preplanning for severing marital ties.  The gist of their now major disaster is that their attorney did not make adequate provision in the dissolution agreement for the marital home.  They simply stated that one party, we will just say the wife for example, keeps use and possession of the home. Frequently a wife with children will stay in the home if she can afford it.  So the story usually goes as follows…Husband is on the mortgage. Husband assumes that he is off the hook for liability with the bank. Husband applies for a loan, only to be rejected due to a poor-debt to income ratio.  This all could have been very easily avoided.

A simple provision that stated, for instance, “Wife agrees to obtain separate financing for the marital home within 60 days or to list the home for sale at or below current appraisal value” would have done the trick.  Sale price and who decides upon that price can also, and should be laid out clearly prior to divorce. It still amazes me that some lesser experienced lawyers get their clients stuck in a hellish quagmire such as this.  It can and should be avoided with some degree of foresight. Fixing this issue can cost far more than doing it correctly the first time around. I have seen people that have unfortunately spent fifty of more hours in attorney time to clean up this type of mess.  

In the end, be sure that your attorney has discussed with you the best path to rectify any outstanding financial obligations, especially your mortgage.  Ensure that no assumptions are made moving forward. Ask your lawyer every question related to protecting your future and that of your kids. And after the emotional haze of divorce clears, never forget that two really can live cheaper than one.


Matthew Poole is a Jackson, Ms custody and divorce lawyer and a 2015 and 2018 N.F.L.A. top ten domestic lawyer, 2019 Birdeye top family attorney, and 2003 finalist of the Steen Reynolds trial competition at the University of Mississippi School of Law.  He was a Second-Century Scholar at Millsaps College in 2001.