Posts Tagged ‘Mississippi divorce law firm’

Age 12: Not A Magic Number

Wednesday, October 11th, 2017

The law is full of misconceptions, and one of the most common ones that our office receives calls about is the role a child plays in a custody case. Many people seem to believe that when the child reaches age 12, they have the choice of which parent to live with. While age 12 does have some significance in custody cases, it does not give the child license to make that decision entirely on their own. It does, however, allow the child to express a preference, and the way the child chooses to do that may largely affect the outcome.

It is often a joke with lawyers that if we allowed children to make their custody decision, the child would pick whichever parent allows them to jump on the bed and have ice cream for breakfast. That is a slight exaggeration, but judges acknowledge that many 12-year-olds do not have the maturity to make the best decision for themselves. Several factors go into the judge’s decision on how much weight to give the child’s preference, such as the child’s age, their reasons for their preference, and the judge’s personal sense of the child’s maturity level.

If the child has good reasons for picking the parent they want to live with, a judge will most certainly consider the child’s preference. Good reasons include the school situation, the home environment, and, to some extent, the child’s community record. Reasons that will most likely not persuade a judge include picking the more lenient parent, being closer to a girlfriend or boyfriend, or, like the old joke goes, the parent who lets the child eat pizza for every meal. Ultimately, the case largely leans on the child’s ability to make a thoughtful, reasonable argument to the judge about what living arrangement is in the child’s best interest. Below are some examples of good and bad arguments by a child for their preference.

What may work: “Your honor, I want to live with this parent because I believe this environment is best for my personal growth and educational opportunities.”

What will probably not work: “Your honor, this parent is stricter than the other, and therefore I do not wish to live with them.”

A child’s living arrangements is an extremely important decision, and courts prefer to have the child involved as much as possible. Allowing a child of 12 years or older to be able to show a preference and giving them the opportunity to speak on their behalf achieves that while still giving the court enough control over the situation to make the decision that is in the child’s best interest. We often hear the misconception that the child has control over their custody arrangement, and while they do play a role, it is not as great as many people believe. If you or someone you know has a custody problem, call the Law Office of Matthew S. Poole. Our office has the experience and knowledge to properly address your case and achieve a fair result. With any questions, call our office at 601-573-7429.

Divorce and Out-of-State Moves: A Look at the Tricky Custody Issues that Exist in This Era of Increased Mobility

Wednesday, December 18th, 2013

Each year, over 6 million people in the U.S. will move to a different state.  Statistics show moving several hours away from one’s home state, a rarity in previous decades, has now become commonplace.  Moves are often spurred by job opportunities, decreased cost of living, a desire to be closer to family, and the need for change.  The decision to move out-of-state is never an easy one, as it means significant expense, stress, and the uprooting of the family.  For divorced couples with children, however, a move to another state becomes a whole different level of complication.

Today, most divorce experts agree that the most contentious and fastest-growing type of custody litigation is relocation cases.  These cases involve a parent who wants to move with their child over the other parent’s objections.  One theorized reason for the uptick in relocation cases has been linked to the increased role of fathers in today’s society.   More and more fathers have taken an active role in the lives of their children even after divorce, and many are now refusing to allow mothers to move their children out-of-state, at least not without a battle.  Another possible reason is simply the increase over the decades in the number of parents who move out-of-state to improve their current situation.

Each state has specific guidelines for parents desiring to move to another state with their children.  Some states require express court permission to move, whereas others allow the custodial parent total control.  Most states express a rebuttable presumption either in favor of or against relocation.  For instance, eleven states require the relocating parent prove the move is in the child’s best interest.  On the opposite end of the spectrum, five states, including Mississippi, place the burden on the opposing parent to show the move constitutes a change in circumstances necessitating a custody modification hearing.

In Mississippi, there is no specific statute that requires a custodial parent to obtain court permission to relocate.  Therefore, the custodial parent is free to move with the children but must notify the court and their former spouse of the change in address.  The non-custodial parent may petition the court for a modification of custody in order to halt the move or alter the custody agreement.  In addition to proving the move constitutes a change in circumstances so as to warrant a modification hearing, a non-custodial parent in Mississippi must also show the best interests of the child require a change in custody.

At a custody modification hearing, the court will consider the impact of the proposed move on the child and both parents.  They will determine whether the reasons for the move are justifiable and whether the non-custodial parent has established a change of custody would be in the best interests of the child.  If the non-custodial parent can meet his or her burden, the parent seeking relocation can lose custody of the child if the move is not abandoned.

Even if relocation occurs, the court can amend the custody arrangement to create an arrangement that works for both parents and the child despite the distance between the parties.  The non-custodial parent may receive more time over the summer, vacations, and weekends, for instance.

Relocation cases are complex and often involve heated emotions.  Both parents no doubt desire to do what is best for their children, but this leads to clashes over important decisions like out-of-state moves.  Matthew S. Poole has years of experience representing parents in relocation cases.  His knowledge of the intricate child custody laws is second to none.  If you are involved in a potential relocation case, call Matthew today at (601) 573-7429 for a free initial consultation.

How Divorce Among the Over-50 Crowd is Unique in Mississippi

Tuesday, August 27th, 2013

In 1990 only one in four divorces occurred among those aged fifty or above. By 2009, that number had increased to one in every four although overall divorce rates remained steady for the population as a whole. The explanation for the increase in divorce among those over fifty is likely related to several issues rather than a single one. Many of the marriages among this age group are second marriages, which are more than twice as likely to end in divorce no matter what the age of the spouses. Increased life expectancy among this group of baby-boomers could also be a factor; once the children are grown and gone, looking forward to another few decades in a loveless marriage can simply seem like too much. Many of these couples remained in their marriage to avoid subjecting their children to a divorce, but once the children are gone, they may be unable to find any compelling reason to remain in the marriage.

Expectations of Marriage Different for This Age Group

According to sociologists, this age group entered marriage with very different marital expectations than those of their parents and grandparents. Those marrying in the seventies and eighties were more likely to be focused on their individual happiness, wants and needs than on traditional marital roles. In other words, baby-boomers who have sent the last child to college may begin thinking of their own mortality as well as the diminishing possibilities for their own self-fulfillment.

Further, nearly two-thirds of the over-fifty divorces are initiated by women—likely due to the surge of women in the workforce and the ability of women to more easily support themselves following a divorce. If you are expecting to hear that there are now scores of older people living unhappy lives in a cramped apartment, you would be wrong; according to an AARP survey the vast majority of divorcees between the ages of 40 and 79 consider themselves to be “very happy.”

The Challenges of an Over-Fifty Divorce

Despite the apparent happiness of those who divorce later in life, there remain certain stumbling blocks along the way. These can include health concerns, being responsible for aging parents, supporting children in college, being closer to retirement and the loss of friends and family. The trend away from spousal maintenance still leaves many women in a precarious financial position. Women in this age group who chose to support their husband’s career path while raising children could find they are woefully unprepared for the workforce. The resume’ gap can make it difficult to return to a prior career and the women in this age group may feel uncomfortable with the idea of returning to college.

Retirement Pension Issues

Retirement planning for both men and women can also take a serious hit when a divorce occurs at this point in the marriage. A separate court order known as a Qualified Domestic Relations Order to properly cover the division of retirement benefits is highly recommended. Both parties will need to know such things as whether distributions can be received without tax penalties, whether a spouse has taken any loans against a 401(k), whether hardship withdrawals are possible and whether there are survivor benefits if the ex-spouse dies after the divorce.

Social Security Benefits

Those who were married longer than ten years, who are 62 years or older, can collect retirement benefits on their former spouse’s Social Security record after the divorce without reducing the spouse’s benefits. Once divorced for at least two years, benefits are available through the former spouse even if that former spouse is eligible but not yet receiving benefits. Should a former spouse die following the divorce, the survivor may be eligible for survivor benefits of 100% of the former spouse’s Social Security benefits, so long as the marriage lasted ten years or more, the survivor is at least 60 years of age and is not entitled to retirement benefits equal or greater than those of the former spouse.

Keeping the Marital Home

In many cases the over-fifty spouse who retains the marital home may receive considerable benefits such as eligibility for real estate property tax exemptions and waivers, eligibility of a reverse mortgage, special treatment for those qualifying for governmental benefits , deductions of mortgage interest and taxes, and access to equity even if the decision is later made to downsize. It is important to discuss these issues with your attorney before you make decisions which could have repercussions for many years to come.

We Believe We Can Help You Through Your Divorce

If you are in the over-fifty age group and have made the decision to divorce, you need advice from a highly experienced divorce attorney who keeps your best interests uppermost in the equation at all times. Matthew S. Poole is such an attorney. Matthew has a sterling reputation and always fights for the rights of his clients. The Law Offices of Matthew Poole have the experience, the resources and the compassion to help those going through a divorce. We understand this is a difficult time and will do everything in our power to make it easier. We offer reasonable rates as well as lower case load, ensuring you will always receive personal attention and your phone calls will be answered. Call (601) 573-7429 to set up an appointment to discuss your individual circumstances.

Alienation of Affection in Mississippi

Tuesday, August 20th, 2013

It’s frustrating when the person you believe ruined your marriage simply walks away with no repercussions whatsoever. But wait, you live in Mississippi—one of the seven states which has stubbornly held on to the tort of alienation of affection. The law stems back to the admittedly scary times when a wife was deemed the possession of her husband allowing a scorned husband to pursue his wife’s lover with the law rather than a gun. The modern-day translation of alienation of affection generally boils down to either money or revenge—or both. Among the states which still recognize alienation of affection (Mississippi, New Mexico, North Carolina, South Dakota, Utah, Illinois and Hawaii) awards topping a million dollars have been handed down to aggrieved spouses. Small consolation, but should your spouse cheat, it could be better for you if he or she cheats with a home-wrecker who is financially well-off.

Mississippi Alienation of Affection Cases

Consider the case of Mississippi’s own Representative Chip Pickering who, after serving for over a decade in Congress, cited the desire to devote more time to his wife and five children as his reason for abstaining from the run for re-election in 2008. As it turns out, Chip possibly should have been spending more time at home prior to this decision; his wife filed an alienation of affection suit against her husband’s alleged girlfriend, a prominent socialite, stating she (the wife) had suffered severe damage to her husband’s affection and consortium as a direct result of the defendant’s reckless and negligent behavior.  

In order to avoid the media publicity frenzy the parties involved agreed to keep the details of the case private, but considering the financial assets of the alleged paramour, speculation is rife. While Pickering may have been the most high-profile case, the most well-known case of alienation of affection in Mississippi involved Johnny Valentine, a Marshall County resident. Valentine received an award of $750,000 after suing the man who impregnated his wife, destroying his marriage in the process.

Alienation of Affection—a Touchy Subject in Mississippi

The matter of alienation of affection in the state of Mississippi is considered a very delicate one, legislatively speaking. While opponents believe such suits result in already-antagonistic divorces becoming even more contentious, proponents in this conservative state believe cheaters should be held accountable. Legislative opposition to the tort surfaces from time to time with the tort surviving two major litigation campaigns for its abolition in 1999 and 2007. Two cases in 2011, however underscore the fact that overall the Mississippi Supreme Court is comfortable with the alienation of affection tort.

One of the 2011 cases involved a husband who filed suit against his wife’s alleged paramour after gaining access to her cell phone which showed hundreds of texts and photos exchanged. Although the defendant lived in Louisiana and argued he was never “physically together” with the wife in Mississippi while she was married, the courts disagreed. Finding the man’s e-mails, phone calls and text messages constituted “sufficient minimum contact” for their purpose, the court upheld the original finding of alienation of affection.

Things to Consider Before Filing an Alienation of Affection Suit

Before you jump on the alienation of affection bandwagon, consider that in order to prevail in such a case you must be able to prove wrongful conduct occurred. You must then be able to definitively tie that wrongful conduct to the dissolution of your marriage due to loss of your spouse’s affection. While Mississippi courts do not require you to prove adultery, that proof would certainly help your case; adultery is a presumption of malice, allowing punitive damages as well as compensatory damages. The statute of limitations for alienation of affection cases is three years—a time which is not subject to the discovery rule.

When Your Marriage is Over, the Law Offices of Matthew Poole Can Help

Whether you believe your marriage was destroyed by another person or there are other reasons you are ending your marriage, attorney Matthew S. Poole can help. With a solid history of providing superior legal representation and fighting zealously for his clients, Matthew Poole understands the myriad of emotions and legal issues facing those whose marriage is broken. By limiting case loads and offering extremely reasonable rates, the Law Offices of Matthew Poole is reaching out to those in need of a compassionate divorce attorney. Call (601) 573-7429 today for a consultation. For more information, check out our website.

Alimony in Mississippi Divorce Cases

Monday, August 20th, 2012

In Mississippi, alimony – also known as spousal support – can come in several forms, such as permanent periodic alimony, lump sum alimony, rehabilitative alimony and reimbursement alimony.   The relevant factors in determining an alimony award in Mississippi include whether it can be modified, how payments are made, whether all at once or over a period of time, and whether it terminates upon certain conditions, such as remarriage or death of either the paying or recipient spouse.

With regard to permanent periodic alimony, this is normally available to the receiving party until he or she either remarries or dies.   Additionally, this type of alimony can also be modified if there is an unforeseeable and substantial change in circumstances.   In the event that you have exposure to this form of alimony, you must try and avoid it no matter what – as you may get stuck paying this for the rest of your life.  If you do end up having to pay this form of alimony, it is tax deductible and also, qualifies as income to your former spouse.

As for lump sum alimony, this is payable to your former spouse as a lump sum payment, as its name suggests.  This type of alimony however, unlike permanent periodic alimony, generally cannot be modified, is not tax deductible, and does not lapse upon the death or remarriage of either the receiving or paying spouse.  This form of alimony is often ideal for a person who may be liable to a spouse, as it has a set end date, whether paid all at once or in installments.

While lump sum alimony can be awarded for a myriad of reasons, rehabilitative alimony is typically awarded to a spouse in order to help them become more self-supportive and also, to prevent insolvency.  Often times, if a spouse wants to go back to school or obtain some other form of vocational training, rehabilitative alimony is usually the best option.   Lastly, reimbursement alimony is a type of alimony that essentially pays a spouse back for allowing the other spouse to advance their own professional objectives.   A prime example of this type of alimony is when a lawyer’s wife decided to take care of the home and kids while her spouse went to law school.

If you are considering getting a divorce in Mississippi, it is best to consult with an attorney experienced in handling the various nuances and complexities associated with these types of cases.  Don’t go about your case alone, which can make you more vulnerable to various liabilities, such as alimony.  Only an attorney can assist you in determining what your legal options are, the nature and extent of your rights and responsibilities, and how to limit your potential liability.  Give us a call now – we look forward to the opportunity of providing you with excellent and sophisticated representation.

Contact Mississippi alimony lawyer Matthew S. Poole for a consultation by calling (601) 573-7429 today.