Posts Tagged ‘Mississippi’

Communication and Consideration: No-Fault Divorce Revisited

Wednesday, August 15th, 2018

Everyone wants a cheap and stress-free divorce when they are ready to move on. Who can blame them when their marital circumstances are beyond repair? No one wants the agony and cost of fighting in a court of law over assets, child custody, or the myriad other factors associated with divorce litigation. Unfortunately, no-fault divorce isn’t easily achieved without some degree of tension in most cases. Again, there aren’t easy answers to complex issues, but the more that can be disputed likely will be, and costs often soar as a result. So what is the best solution?

As in marriage, divorce presents many challenges that lack a simple solution, particularly when children are involved. I cannot speak directly to the exact price other local lawyers charge for irreconcilable differences divorces (or “I.D.” as they are often referred to), but I can say that they will always be far less expensive than fault-based divorce, which often requires multiple open-court hearings and dozens of hours of attorney fees. The stress and turmoil of a legal battle are also not easy to avoid on some level, at least.

Even at a relatively modest rate of, let’s say $225 per hour and an optimistic time for resolution of, for instance 35 hours, the math gets scary quickly (225 x 35 = $7,875). When adding in court costs and other fees such as service of process and investigative fees, it is easy to see why the national average cost of divorce in 2017 was $15,500. We presented the relevant statistics in detail in our April 28, 2018 blog article and reference to a Nolo Legal study evaluating divorce costs. I highly recommend reading that in combination with this posting.

When recognizing that no-fault/irreconcilable difference divorce is usually less than $1,200, it is hard not to see the appeal. However, the appeal and low-cost of I.D. divorce has one danger that is often ignored by clients: If you don’t have 1. Communication, and 2. Consideration for fairness to both parties involved, you are most likely wasting your time and hard-earned money. It’s absolutely paramount that clients understand that Mississippi is not a “true no-fault state” at this time. In other words, you either both must agree to all terms of divorce, such as child custody and visitation, insurance issues, asset division, even alimony in some cases–or you must litigate. And therein lies the rub.

Our neighbor to the west, Louisiana, permits that a no-fault divorce be granted after 365 days of separation whether there is an agreement to divorce or not. While this seems an easy solution to a complex problem, it isn’t quite as appealing when we realize that issues such as child custody and financial matters still will require contested hearings unless the parties agree. Often this means that the cost won’t be any less than in Mississippi.

In 14 years of practicing domestic law, I can say that, despite making very clear to my clients that they may waste their money on attempting I.D. divorce, approximately one-third of them did exactly that because of overly-optimistic enthusiasm. I don’t blame any one of them one iota for trying the cheap route to divorce, but it is not without its downfalls. There are myriad factors that can derail what should be a simple divorce. It’s very easy to throw your money away because of optimism. As a former associate of mine used to say, “Haste makes waste”.

So, what is my advice? First of all, cooler heads usually prevail. The level of emotion and the amount one spends on domestic legal fees are strongly correlated. Therefore, 1. Make a checklist of all issues that require attention before contacting an attorney. 2. Have a calm, frank discussion with your spouse, and 3. Give your spouse appropriate consideration on all of the issues that need to be addressed–remember, you both start with equal marital rights. If you can do these three simple things, you will likely have saved yourself and your children a lot of emotional turmoil and cold, hard cash.

If we can give you assistance in determining the best path toward the dissolution of your marriage, please feel free to give us a call. I have 14 years of focused domestic law experience– we do not practice in any other area– and take great pride in helping find my clients the easiest and least expensive way out of tough spots. Even if a no-fault divorce is not an option, where there is a will, there is always a way.

Matthew Poole is a Jackson, Mississippi family law attorney who specializes in domestic case evaluation and marital conflict resolution.

Corporal Punishment vs. Child Abuse: A Thin Line

Wednesday, August 1st, 2018

Can your child be taken away because of a simple spanking? When I was elementary school at a public institution in Rankin County, Mississippi, I had the misfortune of enduring the school principal’s penchant for enforcing rules by use of a very large paddle, equipped with golf-ball sized holes in order to increase the velocity of each collision. In the early 1990’s, it was standard fare to expect a good old-fashioned whipping from school administration for playground roughhousing or any other number of youthful misdeeds. Boy, how times have changed.

In today’s world of political correctness and fear of legal liability, it seems that those days are long gone, and will likely never return. Parents have often asked our office whether or not a Youth Court or Chancery Court has the authority to take their children from their physical custody wherein there has been significant corporal punishment. Gone are the days of schools bruising the rear-end of a miscreant child (usually boys, alas).

Desoto County, Mississippi recently dealt with an appeal revolving around the question of distinguishing between reasonable discipline versus child abuse, and the line is very thin and broadly within the discretion of the trial court in civil matters. In this particular instance, the appellate court had to consider the sufficiency of evidence utilized by the trial court in removing four children from their father’s custody. At hand was a simple query, at least at first glance.

The appellate court first, and a matter of proper judicial due course, considered the bare language of the applicable Mississippi statute, section 43-21-105(m). In pertinent part, said statute provides that an abused child is one “whose parent….has caused or allowed to be caused, upon the child… emotional abuse, mental injury, non-accidental physical injury or other maltreatment”. Wow, talk about a broad definition, allowing wide discretion for the judge. However, the statute on point also states that “physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section”. Thanks for the semi-clarification, right?

It seems to me that the question of whether or not corporal punish ment of a child is violative of Mississippi law comes down to good old-fashioned common sense. While the criminal statutes regarding abuse of minors are relatively easy to interpret, the civil law remains open to broad interpretation. It is my hunch that any physical punishment that is accompanied by bruising or other visible signature will likely run afoul of the statute on point, but the margin for interpretation is razor-thin. Foremost, always remember that the court will have wide leeway in drawing the line between abuse and reasonable corporal punishment. No two judges are the same and may see the same thing differently. Reasonable minds may, and will often, disagree.

If you are dealing with allegations of abuse or neglect and need guidance and effective legal counsel, we will gladly be of assistance. Always trust your better judgment and recognize that any child punishment of a child must not be done out of anger. In the words of the American author and Unitarian minister Robert Fulgham, “All I Really Need to Know I Learned in Kindergarten”. Well said.

Matthew Poole is a Jackson, Mississippi family lawyer focused on case evaluation and domestic conflict management. He was admitted to the Mississippi Bar in July, 2004.

Expectation vs. Reality: My Lessons in Practicing Domestic Law

Friday, July 27th, 2018

My name is Kenneth Davis, and I have been working for Matthew for close to two years total now. When I first began working in domestic law, I fell victim to much of the overly optimistic enthusiasm that so many young lawyers encounter. Coming from a very close family that has never needed intervention to solve conflicts between us, I was rather naïve to just how petty people can be in litigation over family matters. Family is the most important thing in this world, and sadly that often gets lost in the maze that is a domestic lawsuit. I say this not to downplay people’s emotions or investments in their goals for their family, but rather to be up front with people on the things I see on a day-to-day basis.

Much like professional golf, a lawyer-client relationship is much more of a team than most people think. The client does not only sign a petition and then sit back and let the lawyer do the rest. Clients are their biggest advocate, and they know more about their case than anyone else. The lawyer’s job is to trigger the client’s mind for information they can use to prove their case, and to present that proof to the judge in an effective way. Like a golfer and their caddy, a client and their attorney must be on the same page every step of the way to achieve the best result possible.

When I tell people I practice domestic law, what follows is usually a form of “that must be dramatic.” It certainly is, as family law impacts people’s everyday lives and their relationships with their children. Most of the stories I tell are the really ridiculous ones, such as fighting over the most minor things. I then realized that while many litigants mean well with their lawsuit, sometimes they are mostly fueled by spite. That is most unfortunate, because often the client’s reasonable goals take a back seat to that anger toward the other party. That can add unnecessary baggage and stress to an already volatile situation, and it can put strain on the attorney-client relationship at the expense of the result.

Domestic law can be a challenging and stressful arena in which to practice, although for the most part it is satisfying. It brings me great pride to know that these clients have trusted me with their familial relationships, which are sacrosanct. As with any area of law, proper discipline and teamwork make a world of difference in the outcome of a domestic lawsuit. The most important thing in a domestic case is to never lose sight of what you are wanting to achieve. It can be easy to get lost in the trees and lose sight of the forest. This is truly the best advice I can give to anyone I meet, whether it be a litigant, another attorney, or anyone with a goal they want to achieve.

Military Retirement: Who Gets It in A Divorce?

Monday, July 16th, 2018

Our nation’s troops endure conditions that most of us can only imagine, although sadly they are not immune to the challenges that marriage present. The stress of a career in our nation’s military can have a huge impact on the ability of relationships to last and thrive. When a service member is heading for divorce, a huge question in that process is the distribution of military retirement. This is a valid concern, as the non-military spouse may not be working so as to provide childcare or for any other number of reasons.

When retiring with at least 20 years of active service, a service member receives a retirement pension for the rest of their lives. That means if a person becomes an active military service member right out of high school, they will qualify for that pension around age 40, which is not an uncommon age for someone going through a divorce. The Uniformed Services Former Spouses Protection Act, passed in 1982, states that military pensions are to be treated as marital property when the time of marriage and service overlap. Under the USFSPA, the marriage must have lasted 10 years during which the military spouse performed 10 years of creditable service to be eligible for that retirement pension. This does not mean that the non-military spouse automatically receives half of the pension, rather it gives courts the authority to divide that pension in accordance with that court’s state property division laws. In Mississippi divorce cases, it has long been held that chancery courts have the authority to order a fair division of property acquired through the joint efforts of the parties. As aggravating as this may be for both litigants and advocates alike, chancellors in Mississippi are trained to make these decisions that are fair and equitable to both parties.

As with any divorce case, every military divorce case will be different in its own way, and there is no way to accurately guarantee a specific result. Even the courts say there is no formula! However, a military marriage is a two-way street of effort and sacrifice, and courts acknowledge that non-military spouses are as important to those marriage as our service members are to the military. Unfortunately, the stress of marriage and military life infiltrates military unions as easily as civilian ones. The most important part is finding an advocate that understands the plight at hand, and knows that courts will take steps to protect the service member’s interest in their hard-earned pension while attempting to ensure that the non-military spouse is adequately taken care of. If you or someone you know has a question about the role of a military pension in a divorce, call the Law Office of Matthew S. Poole. Our office holds the military in very high regard, and we will work to give you honest answers to any question you may have.

Great, One More Lawyer: Guardians ad Litem

Monday, July 9th, 2018

It’s an age-old joke that the more lawyers are involved, the more confusing (not to mention expensive) a situation tends to become. Whether well-founded or not, there are many situations that having lawyers involved is simply a foregone conclusion. One of the most prevalent of these examples is a case involving the well-being of a child. In many of those cases, a separate attorney will be added to the case to act as a guardian ad litem (“GAL”, literally guardian at law) to represent the best interests of the child or children involved. While of course many parents have the best interests of the child in mind during litigation over custody, such an emotional type of litigation can make it difficult for the child to remain at the forefront of concern.

A Mississippi court will appoint a GAL when there is a claim of abuse or neglect of the child by one or both parents. This could be physical abuse, mental abuse, sexual abuse, or neglect such as failing to provide the child with proper shelter and food. Other situations where the appointment of a GAL is mandatory in Mississippi include:

If DHS seeks protective services for a vulnerable adult and that person lacks capacity to waive the right to counsel;

In eminent domain and condemnation proceedings for parties who are minors or otherwise incompetent and are without a general guardian;

In a divorce proceeding based upon incurable insanity, if the defendant otherwise has no legal guardian;

If the mother dies while a paternity case is pending;

In a guardianship action where an interested party wishes to establish an estate plan, and it is determined the ward will remain incompetent during their lifetime;

Termination of parental rights;

Contested adoptions; and

If an individual convicted of felony child abuse wants visitation the child.

This is not an exhaustive list, and therefore it is evident that in almost any situation where the possibility of the child playing second fiddle to an issue in a case, Mississippi courts will appoint a GAL. This is an attempt to ensure that the child is treated fairly, and, above all, not taken advantage of or used as a pawn in litigation. Unfortunately, the nefarious use of a child’s presence in a case to get the upper hand is not evident at the outset of the case to either the lawyers, judges, or even the parties themselves.

Mississippi attorneys who serve as guardians ad litem must undergo training in juvenile justice provided or approved by the Mississippi Judicial College, and must renew that certification every year. The appointment of a GAL is an important step in litigation, and parties to suits in Mississippi should feel comforted in knowing that the attorneys serving in that role are required to refresh their memory of how to properly serve as a GAL. It can be intimidating to feel as though a party has one more person to impress or convince during litigation, on top of the judge, their lawyer, their friends and family, and their child or children. However, a GAL is involved in the case to represent the child, and their involvement should be welcomed and their input appropriately considered. Their work truly is selfless.

Child custody cases are some of the most time-consuming, expensive, and stressful cases that come through our office. It is our primary practice area. While many times the events during litigation seem petty and trite, the outcome is one that will shape the course of the relationship with the parties and the child(ren) for years. Therefore, the presence of a well-respected guardian ad litem is a large boost in the confidence that the best result will be reached for the child. While many times it is true that the mere presence of lawyers will breathe life into a conflict, suits impacting children are ones that a better result can be reached by having another attorney join the fray. If you or someone you know has a question about child custody litigation and the role that a guardian ad litem plays in litigation, call the Law Office of Matthew S. Poole. We have the experience and knowledge to answer almost any question you may have about this process, and the benefits that come along with the appointment of a GAL.

To Move or Not to Move; The Million-Dollar Question

Wednesday, July 4th, 2018

Our office frequently receives questions from both clients and curious would-be custody litigants as to whether moving from Mississippi will adversely impact their custody case and the corresponding rights they have to custody of their children. As expected, there is no simple answer to complex problems that life often presents parents and child custodians. However, a brief review of the applicable law does shed much-needed light into the darkness that accompanies ignorance of Mississippi custody law.

One can refer to the phenomenon as “home court advantage” or “home state preference”, but at the end of the day, the label is not what defines impact on parents’ and childrens’ lives. When a parent moves outside of Mississippi, the million-dollar question is always whether that move will trigger a potential modification of custody of the child/children. Our analysis and estimation of legal ramifications of moving must begin with the few things we can know with certainty. I will begin by stating with zero equivocation that I have recently seen a dramatic increase in litigation wherein the custodial parent moves far away from Mississippi.

The well-settled standard for modification of physical custody of a minor child (or multiple children) is relatively straightforward on its face: when custody has been awarded to one parent (by a court of competent jurisdiction) modification will be allowed ONLY upon a showing of:

1. A material change of circumstance—to be distinguished from a mere change which is not evocative of the well being of the children involved.

2. The material change in circumstance must demonstratively adversely affect the welfare of the child/children.

3. That a change in custody must be in the best interests of the child/children. {Polk v. Polk, 589 So.2d 123 (Miss. 1991), Pace v. Owens, 511 So. 2d 489 (Miss 1987)}. In Pace, the Supreme Court mandated that Chancellors make specific findings of fact in support of any decision to modify physical custody of children. All three prongs above must be addressed with specificity in the official court record.

It is notable that the standard for modification of custodial rights is applied in a different manner wherein the parents have joint physical custody and one parent makes a unilateral decision to leave Mississippi’s jurisdiction. The burden of the remaining parent is thereby reduced and there is no longer a requirement that proof demonstrate an adverse affect on the children, thereby prong #2 above would be null and void under these circumstances. McKree v. McKree, 486 So. 2d (Miss Ct. App. 1998).

So the answer to our query is well settled? Not so fast. It appears to myself and my clerk, the Honorable Kenneth Davis, Esq., that Chancellors across our great state have significant leeway and remarkable discretion in making determinations as to whether the “trigger” of modification of custody has been met, thus allowing a parent remaining in our state to initiate a well-founded claim for custody modification. Can the move of a custodial parent meet the threshold burden bestowed upon a non-custodial parent to achieve modification child custody? The best answer is probably, but not certainly. Most important is to recall that the POLESTAR (most important) consideration for any Chancellor is what is best for a child {Albight v. Albright, 437 So. 2d 1003. (Miss. 1983)}. See also Miss Code Ann. §93-5-24 (1972, as amended). The totality of circumstances will dictate the outcome in the vast majority of domestic litigation. It is reasonable and understandable that litigants want clarity and desire certainty. Finality is incredibly valuable. However, would-be litigants that are able to appreciate the big picture and viewpoint of Chancellors (who are the “super-guardian” of all children in their respective jurisdictions) and the subjective elements are most often successful in navigating treacherous child-custody matters.

I have 14 years of experience in domestic litigation and can say without shame that clear answers are often elusive. There is a best path forward in any family issue that you are facing, and my staff and I are dedicated to fight to vindicate your custodial rights. While there may be no simple answer, the path forward is always based in love for your children and a deep desire to impact their well-being in a meaningful and permanent way. It can be done. Where there is a will, THERE IS A WAY.

Matthew Poole is a Jackson, Mississippi domestic relations attorney with 14 years of determined focus in family law and domestic litigation with an emphasis on case evaluation and analysis.

Best Quick Tips in a Contested Divorce

Wednesday, June 27th, 2018

If you are going through a fault-based divorce, you already realize that it can be a cumbersome and frustrating process. In 14 years of practice, it never has ceased to amaze me that potential divorcees so often greatly underestimate the burden, stress level, and emotional turmoil that divorce causes, particularly when child custody is a hotly contested item. Gone are the days of simplicity in domestic separation. In our modern world, husbands are by far more likely to seek custody of children and raise fault grounds against their wives. Also, it is fundamental to understand the importance of shifting family dynamics. Now it is not uncommon to have a stay-at-home husband and a professional wife who has supplanted the traditional husband’s role. I have compiled a short list of simple advice that can save you time, legal fees, and stress that accompanies each and every contested divorce (particularly those that impact the innocent lives involved–your children).

Make sure you keep up with your witness’s phone numbers and addresses. Also, if you are aware of any social media accounts (Twitter, Instagram, Facebook, Google Plus, etc.) or website information pertaining to your spouse, obtain as much information as possible. If you expect your lawyer to locate these for you, be prepared to see additional legal fees.

DO NOT throw away any bank, credit card, tax, investment, or retirement account information. It is easy to hide and can vastly increase the cost and burden of divorce.

If you are in a violent relationship, seek to record any conversations/events that will prove this to the court. Also, make sure you back them up in at least one other device.

Consider hiring a private investigator. Their hourly rates are often cheaper by far than even the least expensive attorney. If you need to access a good one, call me.

Don’t let your emotions get the better of you. Fear, anger, disappointment, and grief are usually present to one extent or another in any divorce.

Don’t assume that you are not entitled to some form of alimony, be it lump-sum, reimbursement, periodic, or rehabilitative. Speak to an experienced attorney as to whether you have a valid claim.

Don’t discuss in any negative way your frustrations with your children; it will most likely bite you. Kids are innocent and have no place involved, no matter how tempting it may be.

Please contact us if you would like to discuss any custody, asset distribution, or alimony-related matter and rest assured we will turn over every stone, leaving none unturned, to your advantage. I have 14 years of experience of focused practice in domestic relations law and can help you determine the best path forward and through these stressful situations.

Matthew Poole is a Jackson, Mississippi domestic relations attorney with 14 years of focused experience in family law with an emphasis on litigation and case assessment.

 

On the Home Front: Military Deployment and Child Custody

Thursday, June 21st, 2018

Army, Navy, Air Force, Marines! According to the Defense Manpower Data Center (under the Office of the Secretary of Defense), the United States currently has approximately 200,000 active-duty troops deployed across 170 countries. It is no secret that many of these soldiers are battling the harshest mental, emotional, and physical conditions of their lives, journeying from their homes to the world’s most dangerous warzones in order to defend our freedom for months (or possibly even years) at a time. Much less frequently discussed, though, are the infinite difficulties faced by the loved ones that they leave behind. As the daughter and granddaughter of veterans, I fully understand how military families “serve with” their soldiers during deployment. However, I can only imagine how much more arduous these absences must be for the children of single-parent households or those whose parents are deployed simultaneously. Who takes care of them, and what happens when the deployment ends?

The Uniform Deployed Parents Custody and Visitation Act (UDPCVA) was designed to resolve child custody and visitation issues that military families may face during a soldier’s deployment, temporary duty, or mobilization. The UDPCVA is divided into five articles, with the first of these defining the foundational terms for the rest. Most importantly, Article 1 states that a parent’s “residence” is not changed during deployment and that deployment cannot be considered in deciding what is in “the best interest of the child.” Article 2 discourages litigation on child custody and visitation issues by outlining procedural protections for simple agreements between parties. This act also assists the UCCJEA* in preventing the issuance of competing orders via Article 3, which covers court procedures and includes the use of electronic testimony and the expedition of hearings. In addition, this article allows for the designation of visitation rights to a nonparent where the court finds that doing so would be in the best interest of the child and Article 4 explains the termination process for these rights following deployment. Finally, Article 5 summarizes the information within each article.

Mississippi Code § 93-5-34 states that “Custody and visitation procedure upon parental temporary duty, deployment, or mobilization” follows the guideline provisions of the UDPCVA on these issues and answers my earlier hypothetical question regarding who would take care of the children similarly to Article 3. It states that “(4) If the parent with visitation rights receives military temporary duty, deployment or mobilization orders that involve moving a substantial distance from the parent’s residence or otherwise have a material effect on the parent’s ability to exercise rights, the court otherwise may delegate the parent’s visitation rights, or a portion thereof, to a family member with a close and substantial relationship to the service member’s minor child for the duration of the parent’s absence, if delegating visitation rights is in the child’s best interest.” Our law also explains that the court will hold expedited hearings or submit electronic testimony when deployment, temporary duty, or mobilization may affect a soldier’s ability to appear in person at a scheduled hearing.

To answer the second question regarding the end of deployment, the same section of Mississippi Code contains a provision like Article 4 of the UDPCVA, stating that “(3) When a parent who has custody, or has joint custody with primary physical custody, receives temporary duty, deployment or mobilization orders from the military that involve moving a substantial distance from the parent’s residence having a material effect on the parent’s ability to exercise custody responsibilities:

(a) Any temporary custody order for the child during the parent’s absence shall end no later than ten (10) days after the parent returns, but shall not impair the discretion of the court to conduct a hearing for emergency custody upon return of the parent and within ten (10) days of the filing of a verified motion for emergency custody alleging an immediate danger of irreparable harm to the child; and

(b) The temporary duty, mobilization or deployment of the service member and the temporary disruption to the child’s schedule shall not be factors in a determination of change of circumstances if a motion is filed to transfer custody from the service member.

(c) Any order entered under this section shall require that:

(i) The non-deployed parent shall make the child or children reasonably available to the deployed parent when the latter parent has leave;

(ii) The non-deployed parent shall facilitate opportunities for telephonic, “webcam,” and electronic mail contact between the deployed parent and the child or children during deployment; and

(iii) The deployed parent shall provide timely information regarding the parent’s leave schedule to the non-deployed parent.”

If you are a member of the United States military and would like to learn more about the UDPCVA then please contact the law office of Matthew S. Poole. We would be more than happy to assist with your child custody or visitation arrangements in lieu of deployment, temporary duty, mobilization, or for any other reason.

Thank you for your service.

*Uniform Child Custody Jurisdiction and Enforcement Act. Information about the UCCJEA and a summary of its application can be found in our previous article “The Jurisdiction Determination in Child Custody Cases.”

Written by Jessica Jasper, J.D. Candidate, Class of 2020, Mississippi College School of Law

The Jurisdiction Determination in Child Custody Cases

Monday, June 18th, 2018

“Where are you from” is a fairly simple question, especially if you live and have lived in a certain state your whole life. If you have moved around, though, the answer may actually seem pretty complicated. In casual conversation, people commonly resort to phrases such as “I grew up in…” or “I’m originally from…” in order to distinguish their “home state” from a recent or current residence. When it comes to legal jurisdiction, however, a much more meticulous approach is required. Where you are truly “from” will determine which court has the authority to hear your case and ultimately control your future.

It should not be a surprise that child custody disputes exaggerate any confusion surrounding this question, particularly when a child moves with one parent to a different state from the other parent. Although there may be multiple states with the authority to rule on child custody matters, only one state will take jurisdiction. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs jurisdiction determinations for all child custody and modification of custody cases and prevents courts from issuing conflicting orders. This law has been adopted by 49 out of 50 states (including the District of Columbia, the US Virgin Islands, and Guam) and reconciles discrepancies between the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act, which previously attempted to provide these jurisdictional guidelines.

§ 93-27-201, Subsection (1) of the UCCJEA establishes the “exclusive jurisdictional basis for making a child custody determination,” which does not require physical presence of, or personal jurisdiction over, any party involved. Actually, these factors are not even sufficient to establish child custody jurisdiction according to part (c). A state only has jurisdiction over an initial child custody proceeding in the four situations summarized as follows:

It is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months and the child is now absent from this state but a parent or someone acting as a parent still lives in the state

A court of another state does not have jurisdiction through situation (1) or a court of the home state has declined to exercise jurisdiction on the ground that this state is a more appropriate forum and

The child and at least one parent or someone acting as a parent have a significant connection with this state other than mere physical presence and

There is substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships

All courts having jurisdiction under the situations described above have declined to exercise jurisdiction on the ground that this state is a more appropriate forum

No court of any other state would have jurisdiction under the situations listed above

Since the UCCJEA designates the home state as the best forum, that state will always have priority in custody matters. § 202 says that this exclusive jurisdiction will continue as long as the state maintains a significant connection with the parties and the substantial evidence is still in the state or until all of the parties have moved out of the state. If an emergency situation occurs (i.e. a child is being abused or was abandoned) then the state where the child is physically located may take temporary jurisdiction to secure his or her safety under § 204. The case will then be given to the home state, transferred to another state that has grounds for continuing jurisdiction, or possibly even kept by this state if the first two options are not available.

However, except as provided by §204 for emergency situations, no court can modify a child custody order made in another state “unless a court of this state has jurisdiction to make an initial determination” under § 201 (a) or (b) and (1) the other state decides it no longer has exclusive continuing jurisdiction or that a court of this state would be more convenient forum or (2) it has been determined that the parties do not presently reside in the other state.

This synopsis certainly does not include every detail of the UCCJEA, but Attorney Matthew S. Poole has handled a countless number of these complex cases. If you have any questions or would like to set up an appointment, please don’t hesitate to call us. We would be happy to explain how the UCCJEA applies to your unique situation.

Written by Jessica Jasper, J.D. Candidate, Class of 2020, Mississippi College School of Law

Why Women No Longer Want to be Wives

Wednesday, June 13th, 2018

Should a husband say: “this is my wife, Jessica” or “this is Jessica, my wife?” The debate over this question has largely become irrelevant, as it is now normal for people to say that they don’t want to get married or that they don’t know whether they do or not. In fact, studies from Pew Research Center show that one in four parents in the United States have kids outside of marriage. Considering the common knowledge that approximately 50% of marriages end in divorce, it is understandable that the thought of getting married would cause someone to fear a complicated and stressful separation in the future. Although the possible reasons are infinite, understanding why women initiate divorce more often than men may help to explain the recent avoidance of marriage in general.

According to a study conducted by Michael J. Rosenfeld, an associate professor of sociology at Stanford University, social scientists have proposed several theories to explain why women initiate divorce at a much higher rate than men. The primary theory is that women may be more attune to relationship difficulties and leave a partner when they believe the issues will require significant action to resolve. However, Rosenfeld argues this explanation is not sufficient according to his research as published by the American Sociological Association. Data taken from the national “How Couples Meet and Stay Together” survey from 2009 to 2015 shows that men and women initiate break-ups equally in non-marital relationships, but women initiate 69% of all divorces. Rosenfeld argues that if the sensitivity theory were true then studies would show women initiating break-ups in non-marital relationships as often as in marital relationships (being equally as dissatisfied), but his data proves this far from the case.

Another suggestion explaining why someone chooses to end a marital relationship is the power-differential theory, which states that the spouse with better prospects beyond the current relationship is more likely to file for divorce. This theory is actually counter-intuitive to the proven statistic that women initiate divorce more than men. Husbands are usually older and have traditionally higher incomes than their wives. Studies also show that single men become more attractive to others as they age, whereas single women decline in attractiveness to others as they age. Therefore, this theory suggests that men typically have the “power” in a marital relationship and better prospects following a divorce. If this theory were accurate, men should initiate the greater amount of divorces as time in a relationship passes. Some social scientists twist this theory to suggest that it is actually the lack of power to voice dissatisfaction with a marital relationship driving women to initiate more divorces. However, prior research on this failed to distinguish divorces initiated by the husband from those initiated by the wife. Although Rosenfeld does not believe the power-differential theory accurately describes why women initiate divorce at a higher rate than men, the lack of power suggestion is actually close to his proposition.

Rosenfeld advocates for the theory that the marital institution has been viewed by society as having incredibly asymmetric gender roles for so long that women now dislike the idea of marriage as a whole. The historic notion that a wife’s only purpose is to cook, clean, and take care of children may lead women to assume that their potential and value in a marital relationship is severely limited. Rosenfeld’s theory aligns with many feminists who suggest that these traditional roles still exist because heterosexual couples are especially likely to marry if the man has high earnings. Also, they call attention to the fact that women still adopt men’s surnames even though laws requiring this came to an end in the 1970’s. Regardless of your position on this controversial subject, it is not difficult to see the connection between women who believe that marriage is an oppressive institution and women who initiate divorce. This theory also helps to explain the general apprehension regarding marital commitments and the increased number of children born to unmarried couples.

These reasons women may initiate divorce much more often than men certainly do not account for every instance, but it definitely presents a challenging consideration regarding the fear of marriage. However, maintaining a healthy dose of caution when entering a marital commitment is probably smart in light of divorce statistics. It is also important to note that signing a “prenup” may help to alleviate some of the anxiety surrounding marriage. Although prenuptial agreements are often perceived to be “dooming” a marriage before it even begins, making this agreement may actually offset divorce fears and prevent stress from ruining your joyous occasion.

The Law Office of Matthew S. Poole is well-seasoned to handle divorce and other family law cases. If you have any questions or are in need of an attorney, please don’t hesitate to call us. We would love to help.

Written by Jessica Jasper, J.D. Candidate, Class of 2020, Mississippi College School of Law