Posts Tagged ‘Divorce’

Prenups Made Easy

Monday, March 16th, 2020

For starters, let me be clear that no one (hopefully) gets married with an exit plan…it’s just plain pessimistic, right?  Maybe so, but it is also important to have clarity going into marriage no differently than going into a business arrangement.  I have put together a very straightforward antenuptial agreement (more commonly called a prenup) for your perusal.  It is for informational purposes only and may not suit your situation, always consult with an attorney.  Notice that custody issues are not present.  The reason for that is that the court will not honor these…they only follow existing law and any contract regarding custody and visitation is not valid.  So, take a look.  I hope it is helpful. 

THIS AGREEMENT AND CONTRACT made on this the ____ day of ___________ 20____, by and between                         (hereinafter from time to time referred to as Husband), and               (hereinafter from time to time referred to as Wife), 

W I T N E S S E T H: 

WHEREAS, the parties hereto contemplate legal marriage in the State of ___________________, and residence in the State of Mississippi; and, 

WHEREAS, it is their mutual desire to enter into this agreement and contract whereby they will regulate their relationships toward each other with respect to certain property owned by the parties and in which they have an interest; and, 

NOW, THEREFORE, for and in consideration of their marriage and the premises herein, it is agreed as follows: 

Wife, now owns in her own right certain property and owes certain debt described and valued in that attachment hereto, Exhibit  A,  consisting of 1 page.  

It is mutually agreed and contracted between the parties hereto that the property and debt  described in Exhibit A shall be and does constitute a separate estate and obligation belonging solely to Wife, and Husband shall have no right, claim, interest, or obligation whatsoever in, to, or for any portion of said property and debt. In consideration of said marriage, Husband waives and relinquishes any and all claims to homestead, widowers allowance, right of inheritance, right to renounce surviving spouses will, equitable distribution in case of divorce, (including, but not limited to the marital home doctrine), and any other right in and to the aforesaid property or any additions to or appreciation in said property or any portion thereof and any income generated therefrom, which might have vested in him by virtue of their marriage, in absence of this agreement. 

II 

It is further agreed and understood by and between the parties hereto that in the event Wife, should sell, transfer, swap, trade, or exchange any of the property described in Exhibit A, then the consideration received therefor by Wife, whether cash, personalty, realty, or otherwise, shall be substituted in the place and stead of the property described above, and Husband shall have no right, claim, or interest in and to the substituted property or its income. 

III 

Husband, now owns in his own right certain property and owes certain debt described and valued in that attachment hereto, Exhibit  B,  consisting of 1 page. 

It is mutually agreed and contracted between the parties hereto that the property and debt  described in Exhibit B shall be and does constitute a separate estate and obligation belonging solely to Husband, and Wife shall have no right, claim, interest, or obligation whatsoever in, to, or for any portion of said property and debt. In consideration of said marriage, Wife waives and relinquishes any right in and to the aforesaid property or any additions to or appreciation in said property or any portion thereof and any income generated therefrom, which might have vested in her by virtue of their marriage, in absence of this agreement. 

IV 

           It is further agreed and understood by and between the parties hereto that in the event Husband, should sell, transfer, swap, trade, or exchange any of the property described in Exhibit B, then the consideration received therefor by Husband, whether cash, personalty, realty, or otherwise, shall be substituted in the place and stead of the property described above, and Wife shall have no right, claim, or interest in and to the substituted property or its income. 

The parties hereto mutually agree that any and all property hereafter owned or acquired after their marriage (with the specific exceptions of the property owned by Wife and Husband and listed in those attachments hereto plus any additions to or appreciation [including active and passive appreciation] in said property and any income generated therefrom) shall constitute the parties marital estate, and shall pass outside this contract and agreement.  As concerns such property acquired by the parties after their marriage, each party shall retain such rights as vested in them by virtue of such marriage, including but not limited to all homestead and inheritance rights. 

VI 

Each party hereto acknowledges that the other shall have the full right and authority, in all respects the same as he or she would have if unmarried, to use, enjoy, manage, convey, mortgage, and dispose of all of his or her present and future property and estate and its income as described in Exhibit A and B hereto, of every kind and character, including the right and power to dispose of same by last will and testament. 

VII 

In case of a divorce, whether agreed to by the parties or pursuant to order of a court of competent jurisdiction, Husband agrees to provide the Wife the sum of $20,000 within 6 months to the wife as lump sum alimony if the parties have one child in their custody, and an additional $10,000 for each child thereafter.  Child support is separately by statute provided under MS Code Annotated (1972, as amended). 

In addition, in case of a divorce, whether agreed to by the parties or pursuant to order of a court of competent jurisdiction Husband agrees to provide Periodic Alimony to the wife for the period of one year in the amount of %15 of gross adjusted income as defined by applicable statute after issuance of a final decree of divorce so long as she remains unemployed full-time, defined as 32 hours minimum per week.    

VIII 

In case of divorce, Husband agrees that he will not be entitled to any of the property or any additions to or appreciation therein or income therefrom as set forth in Wife’s financial statement attached as Exhibit A and that said property, or the worth thereof shall not be considered in determining the amount of relief to which he may be entitled, and he reiterates that he is foregoing, relinquishing, and waiving any and all claims for alimony, either lump sum or periodic, and separate maintenance or other support from Wife. 

In case of divorce, Wife agrees that she will not be entitled to any of the property or any additions to or appreciation therein or income therefrom as set forth in Husband s financial statement attached as Exhibit B, and that said property, or the worth thereof shall not be considered in determining the amount of relief to which she may be entitled, and she reiterates that she is foregoing, relinquishing, and waiving any and all claims for alimony, either lump sum or periodic, and separate maintenance or other support from Husband. 

IX 

Notwithstanding the provisions of this agreement, either party shall have the right to transfer or convey to the other any property or interest therein which may be lawfully conveyed or transferred during his or her lifetime, or by will, or otherwise upon death, and neither party intends by this agreement to limit or restrict in anyway the right and power to receive any such transfer or conveyance from the other. 

           This agreement is entered into by each party with the full knowledge that the other, has a separate estate, and no claim or demand can be predicated upon the fact that there has been any misrepresentation or concealment as to the amount and condition of said separate estate. It is expressly acknowledged by each party that he and she consider the amount fixed herein to be the sufficient participation in the estate of the other. It is expressly stated that each party hereto has sufficient general knowledge of the condition of the estate of the other. It is expressly stated that each party hereto has confidence in his and her own ability to hereafter acquire property in his or her own right to which he or she may look for support and inheritance to justify making and entering into this agreement. 

XI 

           This agreement is to become effective only upon the date of the marriage of the parties hereto. 

XII 

Each party acknowledges that he or she has had the opportunity to be represented in the preparation of this agreement by counsel or other advisers of his or her own choosing; that he or she has read this agreement; and, is fully aware of the contents and consequences of this agreement.  Husband is represented by Matthew Poole, Esq.  Tax advice is rendered to neither party. 

XIII 

This agreement shall be binding upon the heirs, legatees, devisees, and personal representatives of each of the parties. 

XIV 

The parties agree that should any paragraph or section of this agreement be held invalid by any court, such holding shall not affect the validity or enforcement of the remaining sections or paragraphs. 

XV 

This agreement and contract consisting of 8 pages plus exhibits thereto, constitutes the sole and entire agreement of the parties hereto, and all representations or agreements prior to or contemporaneous herewith are hereby merged herein. Further, this agreement and contract can only be changed or modified by a writing executed with the same formalities as the instant agreement and contract. 

WITNESS OUR SIGNATURES on this the _____ day of _____________, 20_____. 

    ____________________________________ 

                                                                 Husband  

____________________________________ 

                                                                 Wife 

STATE OF MISSISSIPPI 

COUNTY OF _________________ 

This day personally appeared before me, the undersigned notary public in and for the state and county aforesaid, the within named_____________________, who acknowledged before me that he signed, executed, and delivered the above and foregoing Antenuptial Agreement on the day and date therein mentioned for the purposes therein stated, as his own voluntary act and deed. 

Given under my hand and official seal on this the ______ day of _____________, 20_____. 

_______________________________________ 

NOTARY PUBLIC 

My Commission Expires: 

STATE OF MISSISSIPPI 

COUNTY OF ______________ 

This day personally appeared before me, the undersigned notary public in and for the state and county aforesaid, the within named ____________________, who acknowledged before me that she signed, executed, and delivered the above and foregoing Antenuptial Agreement on the day and date therein mentioned for the purposes therein stated, as her own voluntary act and deed. 

Given under my hand and official seal on this the ______ day of _____________, 20_____. 

_______________________________________ 

NOTARY PUBLIC 

My Commission Expires: 

Jailing the Cheating Spouse AND Their Lover?

Monday, March 9th, 2020

Is it possible to have your cheating spouse and their paramour thrown in jail for fornicating with someone other than you?  It seems like an antiquated concept, right?  This relatively recent state law has some strong similarity to the punishments enacted on cheating women in days of old (like in the famous novel “The Scarlet Letter”).  So, let’s dive in and take a hard look at the criminal component of adultery by examining the language of this relatively new state statute (remember, the MS Code has been around for about a century now).

MS Code § 97-29-1 (2013)

“If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.”

Many of you are probably thinking the same thing…here is my chance to punish that cheating low-life and that loser they are cheating with.  Is this statute ever even enforced?  It is very tempting to exercise this potential weapon which allows the possibility of prosecution for bad behavior..after all, no one likes a cheater.  Who would have thought to press charges for adultery after all…it is certainly a novel concept and one that is rarely, if ever utilized.

I spent a bit of time looking for relevant Mississippi cases where someone has been prosecuted for a violation of this code section (statute) and found exactly zero of them (sidenote:  the databases only reflect appeals so there may have been a small handful where the person chose not to take an appeal, but not likely).  Years ago there was in fact a statute that has subsequently been overturned that made extensive communication, even without fornication or other sexual acts with a married person a crime and was dubbed as “criminal conversation”.  That law has since been overturned by the Supreme Court of Mississippi.  Wow, how times have changed.  In the modern era of internet communication, we may all have been found guilty at some point in time.

While we have certainly taken a step back in terms of the magnitude of the codification of crimes as they relate to state statute, not seeing a single prosecution of crimes regarding adulterous or potentially adulterous behavior is somewhat surprising.  Even now, the standard is lighter in terms of what one must prove to show that a crime has been or is being committed…but the outcome is still that zero people have ever sat in a jail cell for adultery is the new reality.  Many will ask why this is the case, and for good reason. 

My final thoughts are pretty simple–and somewhat obvious to those who follow the criminal justice system.  First, there are simply not enough jails to house all of the cheaters out there.  Prosecutors have bigger fish to fry (rape, murder, assault)… everyday.  Although the legislature has made clear their position as to the seriousness of adulterous acts, enforcement is not quite so easy.  If we prosecute every cheater, as a society we will likely be too busy to pay attention to the violent crimes that run so rampant.  There is only so much space in the county lockup.

On a positive note for those of you dealing with a cheating spouse, you can take advantage of the public policy against your cheating partner by pointing to the chancery court that an actual crime is being committed.  It may not land the cheater, or their lover in jail, but at least it will magnify the gravity of your situation and potentially reap a better civil outcome.  After all, do not forget that public policy is on your side, at least this time.

Top 3 Questions That Family Lawyers Hear…Daily

Tuesday, March 3rd, 2020

In the course of practicing family law, divorce, and custody for close to 2 decades, I have come to realize that the same questions tend to reappear in most domestic cases…and few of them have simple answers.  It often seems that callers and potential clients believe that domestic fights are solvable like math equations…that a clear answer exists if the numbers are plugged in correctly.  That belief is not accurate and is likely the result of our human desire to have clarity in life–an understandable goal.  As someone facing a custody battle, a divorce, or other difficult domestic case, I would like to help in preparing you for what your lawyer of choice wants you to know.  I have been through a personal custody battle and won, but it was stressful and taxing in more ways than one.  Here and the most common questions we receive, and some of them are not what you might expect.

Q-1:  Would it help to speak to my ex/husband or wife about what terms they would agree to?

A:  Absolutely…the cost of separating and children being involved will depend on how many issues you cannot agree on, the conversation is mandatory to save costs.  MAKE SURE that insurance (health and life insurance on the payor of support) and college costs are a part of the conversation, and these expenses would be in addition to state mandated child support.  This matters are seldom agreeable between people who are already financially squeezed (98% of the population at least).

Q-2:  My spouse and I agree to a divorce but do not agree on who keeps the house/pays the debts/gets the kids/amount of child support (this list can literally go on forever).  Can we not just agree to a divorce and make it simple?

A:  It likely won’t save you any money or time to simply agree to a divorce, although you can resume single life and join the dating world again if that is the path you prefer.  The court could and will grant a no-fault divorce under most circumstances but you still have a long row to hoe if there are financial and custody issues on the line.  It seems like the divorce would simplify those matters, but it will not in most cases.

Q-3:  Why is it fair that he/she is a terrible parent but I have to spend my money to prove that to the court?  Is there a way I can just show the judge my evidence and make this all go away?

A:  Unfortunately no.  This one reminds me of the old saying, “The best and worst thing about the judicial system is that everyone can have their day in court”.  The rules for presenting evidence are very strict and formal, and there would not be so many lawyers if in fact we could casually show the court one side and get a result.  You would not be happy if your ex did this and the shoe was on the other foot.  The bottom line is that the court should and will start with no assumptions about you or your significant other.  They serve one role…neutrally deciding matters brought  before them.

What are my big picture takeaways from these three common questions?   A few things, but most importantly is that people in a state of denial about the complexity of child custody, the financial ramifications, and the difficulty of severing a marriage will continue to languish and may very well stay married for a long time.  It is crucial to get past the fiction of looking for a simple answer. 

Realizing that you have a complex problem is always the first step in addressing it–head on.  And, without any exception, lawyers like myself realize that without putting some pressure on the opposition (the more the merrier), you will have no option but agreeing to whatever they offer.  In the end, trying to agree to fair terms is always best…but not everyone is entirely reasonable, particularly when they are in a highly stressful and emotionally draining situation.

Facebook + Difficult Marriage = Divorce

Friday, February 14th, 2020

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

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

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

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

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

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

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

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

What Kids Need…The Court’s Role

Thursday, January 30th, 2020

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

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

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

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

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

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

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

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

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

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

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

Friday, January 24th, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Reading Your Custody Lawyer’s Mind

Friday, January 17th, 2020

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

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

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

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

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

Sink or Swim? Childcare Costs Rising

Tuesday, December 10th, 2019

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

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

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

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

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

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

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

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

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

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.