Posts Tagged ‘Divorce’

Questions for Your Attorney? Ask Them!

Thursday, December 21st, 2017

A lawsuit can be a confusing process for someone who has never been involved in one. They involve a language totally different than the everyday vocabulary of most people. Attorneys usually expect questions from clients because of the large amounts of questions they themselves had at the outset of their career. Divorce lawsuits are especially stressful, as they delve deep into some of the most well-guarded areas of a person’s life. Knowing what questions to ask your attorney can help very much in cutting that stress down, and to help you make sure your case is in good hands. Here are some examples of questions you should be discussing with your attorney.

Question #1: Have you issued discovery, and what did that discovery request?

Discovery is the part of the lawsuit where attorneys send requests for information to the opposing side to be answered. This often involves interrogatories, which are questions about the case to be answered, and requests for production of documents that may be used as evidence at trial. Discovery is an extremely important part of a lawsuit, as it gives a party the time to possibly object to some requests and to carefully build their case. Asking about the issuance and substance of discovery is a way for you to make sure that the attorney you hired is taking the right steps to build your case.

Question #2: What was included in the pleading?

Pleadings are how you ask the court for the relief you want, and therefore should be done with care and should include every remedy possible. For example, there are twelve grounds for divorce in Mississippi. Asking questions about those grounds can help your attorney know what grounds you may have, which will therefore help in crafting the best pleading possible for your case. It’s your story, so help your attorney tell it.

Question #3: What witnesses should I call to help my case?

The answer to this question from an attorney will most likely be “it depends.” Witnesses may testify to things they have personally seen or heard as well as things told to them. You know better than anyone the people in your life who may be able to help present your case, and your attorney’s past experience may help in discovering other potential witnesses as well. One witness’s testimony can be a huge difference-maker in a domestic case.

Question #4: What documentary evidence should I produce?

One question our office receives from clients almost without exception is “What do you need from me?” This often depends on what the other side asks you to produce. In domestic litigation, common documents requested involve finances and contact between a party and their spouse or child. Your attorney should know what document requests you can object to and which ones you will most likely need to produce to the opposing side. These documents will be the foundation of your case, and you should ask your attorney their plan for building that foundation.

Question #5: What things specific to my case can we ask the court to order?

Every situation in domestic litigation is different, as the experiences, wants and needs of different families intersect in each case. You should be asking your attorney what you could possibly ask the court to order that helps you in your situation. The attorney’s role in this is twofold: the attorney should have a basic idea of what the court will or won’t order while also offering a less emotional presence making the request. When a decision affects your family, you want to make sure it is the right one.

Your attorney’s role in your lawsuit is to help you navigate the rules and procedures of a lawsuit, and asking questions can help you give your attorney all the help they need in building your case, as well as making sure your attorney is properly representing you. Lawyers expect those questions, so ask them! Many lawyers will either know the answer, or admit that they don’t and will find you the answer. In lawsuits, the right questions can be the difference between a good result or a bad one. If you have questions about your domestic case, call the Law Office of Matthew S. Poole. We will be glad to help you in any way possible.

The New Tax Bill: What Does It Mean?

Tuesday, December 12th, 2017

The Republican Party’s new tax bill that is currently in the works will have an effect on Americans and the amount of money they take home.Taxes are a necessary evil that Americans are all too familiar with. Taxes pay for roads, schools and medical expenses for many people. They are also a constant reminder of having a smaller paycheck. The Republican Party’s new tax bill that is currently in the works will have an effect on Americans and the amount of money they take home. The size of this effect is to be determined, but this tax plan is something that married couples who are considering divorce should be aware of.

As is being heavily reported in today’s news, the House and Senate Republicans have both passed a version of this tax bill, and will confer in the coming days to agree on a final version. And while the impact on corporations is likely to receive more news coverage, the bill is being touted by the GOP as a plan to allow the average working-class American to bring home more money after taxes. Many Mississippians fall into this category, so the tax bill will have a significant effect on residents of our state.

Of course, a tax bill as majorly different as the one that is currently being voted on could have major implications on married couples, and therefore on divorced couples. There is talk of some deductions increasing, namely the standard deduction and child tax credit. This could impact familial decisions regarding custody of the children more than taxes have before, so that is something for parties to keep in mind when discussing child custody.

Although none of the proposed tax provisions are set in stone, whatever version of the plan that is introduced is sure to have an effect on the finances of Mississippians, and therefore an impact on their decision making. The most important thing about receiving help is asking. Taxes are not something that the everyday person (or many attorneys) knows a great deal about, and therefore there is nothing wrong with seeking advice regarding how this new tax plan may impact your family. Knowledge is one of the most powerful weapons you can possess, especially when it involves your family’s finances. If you have a question about tax implications in your divorce, call the Law Office of Matthew S. Poole, and we will be glad to give any advice we can about this impact.

How Long Does a Mississippi Divorce Really Take?

Friday, December 1st, 2017

One of the more common questions about divorce in Mississippi is a totally understandable one: how long does it take? Clients are often surprised at how long their cases last, especially when in their minds it is clear that divorce will only benefit everyone involved. The answer to the question of length of a divorce case in this state is often the classic lawyer reply of “it depends.” This is an honest answer, as the length of a divorce can be fast or slow depending on many different things, and a major part of the process is the client’s proper understanding of the fickle nature of time in a divorce case.

As we have talked about elsewhere on our website, there are two ways to get a divorce in the Magnolia State. One is an irreconcilable differences divorce, sometimes referred to as a “no-fault” or “agreed to” divorce. In an irreconcilable differences divorce, much of the timetable for the process is the 60-day waiting period required after the filing of the complaint. After that period, assuming that the parties still agree with the terms of the split, the final judgment need only be signed by a chancellor of competent jurisdiction to be final.

The other way to get divorced in Mississippi is through a lawsuit, which has a much more volatile timeline than an irreconcilable differences divorce. Lawsuits involve filing pleadings, serving process on parties, and getting discovery requests out, and that’s just to get started! After the suit is initiated, it is likely that several court appearances will be needed to properly address the claims. These hearings take place for a number of reasons such as obtaining temporary relief, compelling documents that were properly requested but not produced, or asking for a continuance. Once you combine these hearings with crowded court dockets, the timetable for a divorce can be a total mystery, even to experienced legal professionals.

The process of a lawsuit is unfamiliar territory for many clients. Ideally, every stage of a divorce would occur without incident and on time, and divorces would be faster and easier to obtain than they are. However, much like life and marriage, divorce is a complicated issue with many variables at play. Combining two parties, the lawyers, the court system, the schedules of everyone involved, and possible mishaps during the lawsuit makes a natural cocktail for a wait that seems like forever. In a time where people desire concrete answers to questions, there simply is not one with the amount of time a divorce lawsuit takes.

Almost without exception, divorces are expensive, stressful, and, above all, time-consuming. When you add the client’s desire to get a divorce and be done with the experience, the process becomes even more of these things. Our office believes that clients should know the dedication and time that a divorce may require, so that they do not feel like they are in the middle of the ocean without land in sight. This is of course not the answer that many seek, but we firmly believe that in situations like divorce that honesty is truly the best policy. If you are in need of help through a divorce, please call the Law Office of Matthew S. Poole to schedule a consultation.

Are Attorney’s Fees in Child Custody Cases Negotiable?

Wednesday, November 1st, 2017

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

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

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

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

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

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

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

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

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

In Loco Parentis: A Mile In Their Shoes

Wednesday, September 27th, 2017

Many of us have figures in our lives that mirror the role our parents play. Someone you trust, respect, and love. In some adult-child relationships, those people can step into the role of a biological parent. The doctrine of in loco parentis, which roughly translates to “in the place of a parent” addresses these relationships, and attempts to protect the best interests of both the child and the adult. Because of the delicate nature of these situations, Mississippians should know their rights when they believe that a child belongs with them instead of the natural parents.

When a person stands in loco parentis, they have assumed the status and obligations of a parent. Farve v. Medders, 241 Miss. 75, 81, 128 So.2d 877, 879 (Miss. 1961). This means that person provides parental supervision, support and education as if the child were their own. W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571, 575 (Miss. 1969). In loco parentis status carries the same rights and liabilities that belong to a natural parent, including a right to custody of the child against third parties. Farve, 128 So.2d at 879.

Although in loco parentis grants these rights, the rights of the natural parents are still superior. Mississippi law recognizes the natural parent presumption, which presumes that the biological parents of a child are the best guardians for that child. A third party’s in loco parentis status, standing alone, cannot by itself rebut that natural parent presumption. Smith v. Smith, 97 So.3d 43 (Miss. 2012). For a third party to rebut the natural parent presumption, it must be shown by clear and convincing evidence that 1) the parent has abandoned the child; 2) the parent has deserted the child; 3) the parent’s conduct is so immoral as to be detrimental to the child; or 4) the parent is unfit, mentally or otherwise, to have custody. Smith, 97 So.3d at 46. This is obviously a high burden, especially given that clear and convincing is the highest standard of proof used in civil courts. Once the presumption is rebutted, courts may then decide the custody of a child using the Albright factors.  http://www.mspoole.com/case-results/albright/.

Children deserve to have the best parental figures available to them. Unfortunately, sometimes the best parent is not the biological one. When someone stands in loco parentis to a child, that child depends on them to be there for them, and the law can help that person keep their rights to do so. If you or someone you know has a question about in loco parentis rights, call the Law Office of Matthew S. Poole. Our office has the knowledge, experience, and passion needed to best address your legal situation, and to help you keep your rights to foster a relationship with a child who needs you. To schedule an appointment, call our office at 601-573-7429.

Constructive Desertion: When You Just Know

Monday, September 11th, 2017

This is the way the world ends. Not with a bang but a whimper.” T.S. Eliot’s words from his poem “The Hollow Men” can unfortunately describe the end to many marriages. Mississippi law states that desertion of a marriage may act as grounds for a divorce, but the statutory desertion period is one year. When that time period has not been met but there are signs the marriage is ending, courts look to constructive desertion to entitle a party to a divorce. Constructive desertion has been defined by Mississippi courts as conduct that renders the continuance of the marriage unendurable or dangerous to life, health or safety. Benson v. Benson, 608 So.2d 709 (Miss. 1992).

In Benson, the trial court did not grant the parties a divorce on the grounds of cruel and inhuman treatment. The husband alleged that the wife had committed cruel and inhuman treatment by habitual ill-founded accusations, threats and malicious sarcasm, insults and verbal abuse. The trial court found that the martial problems were mostly based on the incompatibility of the parties, which is not a ground for divorce in Mississippi. The Court of Appeals found that the trial court had correctly denied a divorce on cruel and inhuman treatment, but remanded the case for the ground of constructive desertion.

As you can tell by that standard used by the courts, constructive desertion can take many forms. What makes a marriage “unendurable” is different for different people. Mississippi courts have held that inexcusable, long-continued refusal of sexual relations warrants a divorce on the ground of constructive desertion. Tedford v. Tedford, 856 So.2d 753 (2003). As silly as that may sound to some people, this could signal that two spouses have basically become roommates, and the marriage has therefore been deserted.

This conduct may also stem from monetary support issues. If a husband has the means and ability to support his wife, and negligently or willfully does not, then the wife will be justified in severing the marital relationship and leaving the home. If the husband still refuses to support her, then he will be guilty of constructive desertion even though the wife left the house. Deen v. Deen, 856 So.2d 736 (Miss. Ct. App. 2003).

As dramatic as divorces often are, sometimes their end comes with a whimper and not a bang. Sometimes, you just know a marriage has no chance of lasting. Constructive desertion is a ground that many spouses in Mississippi can use to leave a marriage that has not yet reached the statutory time requirement. If you or someone you know is in a marriage that meets the criteria of being unendurable for a reasonable person, or if the person’s life, health or safety is in danger, call the Law Office of Matthew S. Poole. Our office is experienced in courts throughout Mississippi with our full time and energy dedicated to domestic matters. This allows our office to know the nuances of the law, and to provide you with your best representation. Call the Law Office of Matthew S. Poole today at 601-573-7429.

Grandparents Do Have Visitation Rights!

Wednesday, July 26th, 2017

Are you a grandparent of a child of divorce shut out of your grandchild’s life? In Mississippi, grandparents have a statutory right to visitation with their grandchildren, in limited circumstances. The polestar consideration in matters of child custody and visitation is “what is in the best of interest of the child?” In Mississippi, specific statutes confer upon grandparents certain visitation rights under specific circumstances. Below is the logical flow chart of the specific statutes that apply.

The statutory circumstances that apply to visitation rights are as follows:

Parent of the noncustodial parent;

Parent of the parent with terminated parental rights;

Parent of a deceased parent of the child; OR

Grandparents who do not fit any of the above three categories may still petition the court for visitation rights

Grandparent must prove an established “viable relationship” (defined below) with the child; OR

Grandparent must show the court that the custodial parent unreasonably denied the grandparent visitation rights; AND

Grandparent must convince the court that granting visitation rights to the grandparent are in the best interest of child.

“Viable relationship” as it relates to visitation rights of grandparents means “a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during the time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.”

Your rights to grandparent visitation are worth pursuing if such would be in the best interest of your grandchildren. The above summary of the statutory rights conferred upon grandparents by the legislature is not an exhaustive list of factors the courts consider when making a determination of visitation with a child. Furthermore, the particular facts of your case are determinative of the proper court in which to file your petition for visitation rights. Establishing visitation rights of grandparents can be complicated and should be done with advice and representation by a qualified attorney.

If you are a loved one has questions about grandparent visitation issues, schedule a consultation with the Attorney Matthew S. Poole. Matthew has over a decade of experience representing parties in all matters of visitation, including many grandparents.

Myth: Courts Give Mothers Preferential Treatment for Child Custody When Child is Young

Tuesday, July 11th, 2017

Early American courts favored mothers over fathers for custody of young children. The legal tradition of preferential treatment of mothers eventually led to the adoption of the “tender years” doctrine. However, Mississippi courts no longer give preferential treatment to mothers of young children in child custody cases, with limited exceptions.

The “tender years” doctrine is a 19th century principle rooted in common law and stood for the premise that a mother of children of tender years (generally 4 years or younger) was presumed to be the best parent to care for young children. This was the legal rationale courts used to award mothers custody. Mississippi, as have most states, has trended towards a more balanced examination of both parents in determining which one is the best custodial parent of a child. Rather than completely abolish the “tender years” doctrine, it has been included as an Albright Factor (discussed extensively in other blog entries). Thus preferential treatment, as it relates to the “tender years” doctrine, is still a factor, but weighed against all the other factors courts consider.

There are, however, rare exceptions to the general rule against preferential treatment of mothers. When chancellors (family law judges) apply the Albright Factors to their analysis of the parents in a child custody case they do so with the best interest of the child as the overriding determinant. Courts in Mississippi consider it the best interest of a breastfeeding child of tender years to remain with the mother, thus giving these breastfeeding mothers preferential treatment in cases of child custody. Of course a father may present facts to the court, such as drug use of the breastfeeding mother, which override the interest of a young breastfeeding child remaining with the mother.

Suffice to say that the preference given to mothers in child custody determinations has diminished in weight to an appropriate position as one of a dozen or more Albright Factors. Ultimately, courts are going to consider many factors when making a child custody determination of a child of tender years. If you are a father or mother of children of tender years there are many issues to consider with an attorney. Matthew S. Poole has the experience and expertise to assist you in all your child custody needs. If you or anyone you know has a question about child custody matters, please contact the Law Office of Matthew S. Poole at 601-573-7429.

Social Media

Saturday, June 17th, 2017

Social media is literally everywhere in our world. When used responsibly, it can be a great outlet for news and sports sources, as well as a way to better connect with old friends and family members. However, the negative effects of social media are well documented, and social media’s presence in domestic law is especially prevalent.

People on both sides of a relationship should be wary of social media use and how it may impact their relationships outside of the Internet. On one hand, Instagram likes or Facebook messages can be seen as done with devious intent by the other party in a relationship. This can obviously lead to situations where one party may be unfaithful to the other, or result in a total breakdown of trust between two people. Communication with someone online is often a reference point for why a relationship did not or cannot work. That being said, people should be careful about how these situations are approached. Assuming the worst can often lead to more distrust in relationships, and it may have been much ado about nothing. It is certainly a shame when two people decide to not be together over something that could easily be avoided.

Understandably, questionable online practices may make a spouse feel that they need to speak with a lawyer about how to approach that issue. However, as powerful as that urge may be, our office would caution people who contact a lawyer solely because of social media use. Without much other evidence of another spouse’s bad behavior, that behavior can be difficult to prove, and can lead to clients insisting there is foul play happening, leading a lawyer down a rabbit hole trying to grab at any proof they can. As appealing as speaking to a lawyer about a spouse’s social media use, our office encourages you to use your best judgment, and to be rather sure there is more to that Facebook message than just a friendly catch-up. If you have any problems with a spouse’s online presence and would like to contact our office, please give us a call at 601-573-7429.