Posts Tagged ‘Mississippi’

“What’s Mine is Yours” (Unless it’s Mine)

Saturday, June 9th, 2018

One of the most common questions received by our office on a daily basis is whether someone will be able to keep real or personal property following a divorce, including assets and increases in valuation. The answer, like so many others regarding the law, is “it depends.” Many people mistakenly believe that having title to an asset automatically means their spouse will not be able to make a claim to ownership of that asset, but this is not a safe assumption in any community property state such as ours. Several states including Mississippi previously had a separate property system where all property was awarded to the titleholder in a divorce, but this system was fundamentally flawed with regard to common jurisprudence and recognition of spousal contribution. Today, division of property is instead governed by an equitable distribution system and both the legislative and judicial branches of government have made accommodations for the disregard of contributions made to property by a non-titleholding spouse. Although “equitable” sounds like “equal” or “50-50,” it actually means “fair.” A chancellor will determine what constitutes a fair distribution of property not by determining the titleholder, but by relying on eight factors that were provided in the case Ferguson v. Ferguson. 639 So. 2d 921, 928 (Miss. 1994). These factors are summarized as follows:

  • (1) Substantial contribution to the accumulation of the property
  • (2) The degree to which each spouse has expended, withdrawn, or otherwise disposed of marital assets
  • (3) The market value and the emotional value of the assets
  • (4) The value of assets not ordinarily subject to distribution
  • (5) Consequences of the distribution (like taxes or legal issues with third parties)
  • (6) The extent to which property division may be used to eliminate future friction between the parties
  • (7) The needs of the parties for financial security with regard to assets, income and earning capacity
  • (8) Any other factor which in equity should be considered

The only type of property that is subject to equitable distribution upon divorce is marital property. According to accepted interpretation as outlined in Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994), all assets earned or acquired during the course of the marriage are presumed to be marital property. The well-known exceptions to this presumption are assets acquired before or outside of the marriage such as gifts or inheritances. Unfortunately, there is one delineating factor: these assets must be brought into the marriage by only one party and kept separate throughout the entire marriage. Co-mingling of assets will defeat this exception to the presumption of community property within the confines of a marriage. Therefore, it is possible for the court to find that property is divisible as marital property if the family has been using it throughout the marriage or if the court cannot trace your separate interest in the property. Rhodes v. Rhodes, 52 So. 3d 430, 437 (Miss. Ct. App. 2011). This process is called “transmutation” and applies to both real and personal property. Interestingly, though, Mississippi is one of the only states that does not presume that property is marital for the purpose of equitable distribution where there is joint title. Pearson v. Pearson, 761 So. 2d 157, 163 (Miss. App. 2000).

Other exceptions to the presumption that property is marital and equitably distributable include personal injury or disability awards, pensions, or property designated as separate by agreement. Pensions and other employment benefits are considered marital property for the purpose of equitable distribution but are not divisible if the funds accumulated before the marriage. Similarly, personal injury awards are usually divisible if they were provided to compensate for a loss belonging to the family rather than just pain and suffering of the individual. Mississippi courts have not directly addressed the classification of workmen’s compensation or awards for disability, but they are likely to be indivisible from the marital estate to the extent those awards are compensable for loss of wages or wage earning capacity.

Another notable exception to the presumption that property is marital is the value of a professional degree. The Supreme Court of Mississippi held in Guy v. Guy, 736 So. 2d 1042 (Miss. 1999) that a professional degree obtained by a student spouse was not property for the purpose of dividing the martial estate. In that case, the court (citing an older case from the Supreme Court of Colorado) found that an educational degree is not “property” at all because it is not inheritable, transferrable, or valuable for sale on the open market. Therefore, intellectual enhancements acquired during a marriage are not considered to be marital property.

Although professional degrees are not distributable upon divorce, a supporting spouse may have the right to compensation (called reimbursement alimony) if he or she contributed to the education obtained during the marriage. This is because it is presumed that a contribution was made with the expectation of achieving a higher standard of living for the family since a higher education typically equates to a higher income. According to the court in Guy v. Guy, a supporting spouse would be “left with nothing more than the knowledge that they aided their now ex-spouse in increasing his or her future earning capacity” without this repayment. 736 So. 2d at 1044. Reimbursement alimony is granted on the actual amount of funds provided towards the education and is most common in the divorces of young couples who typically have few assets and little money.

Matthew S. Poole has 14 years of experience and a successful track record in divorce cases. If you have any questions about property distribution or divorce in general, please don’t hesitate to call our office.

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

Social Media as Evidence: Your Posts Don’t Lie

Monday, June 4th, 2018

Advances in technology have now made the world’s wisdom accessible to pretty much anyone with a smart phone or computer. Arguably even more astounding than the efficiency and productiveness flowing from this kind of access is the level of connection achievable between people from different parts of the country… or different countries… or different continents. From texting and direct messaging to posting statuses, pictures, videos, and locations, social media has revolutionized the way society communicates. Every day more and more people are putting their lives online for everyone they want to share information with and truthfully some they probably don’t.

It is likely that at some point in time you have been told to consider the cost of hitting “send” or “post” on social media before doing it. For example, should that picture from 3 a.m. last Saturday really be available to everyone? What about that status raising cane against your careless uncle Joe for backing into your car? The reason for this instruction is to reiterate the broad accessibility and eternal permanency of sharing information through the Internet. Unfortunately, though, many people still fail to see the laundry list of unintended consequences that may result from even just one poorly thought-out post.

Many employers have openly begun monitoring current employee’s social media accounts or combing through posts of a potential employee before an interview. But even if you don’t “clean” your accounts well enough, the worst that can happen is losing a job… right? No. Actually, your social media accounts could end up being used as evidence against you in court. A survey from the American Academy of Matrimonial Lawyers in 2010 found that 81% of divorce attorneys had seen an increase in evidence taken from wireless devices and 66% cited Facebook as the source of this evidence. Social media can be used as evidence to prove a variety of things like your opinions or thoughts, the time and place of your actions, communications or interactions with others, and even your income or purchases.

According to Washington family attorney McKinley Irvin, one reason social media accounts create relationship problems is because of the amount of time spent on them. A study published in Computers in Human Behavior showed that a 20% increase in Facebook enrollment equated to a 2.18% to 4.32% increase in divorce rates. If you’ve ever looked around a crowded restaurant at lunchtime, this statistic should not come as a shock. The number of people staring at their phones instead of conversing with their present company is staggering. If the quality of conversation in a social setting this low, it is easy to see how the same behavior at home could quickly destroy emotional connections and ultimately derail a marriage.

Attorney Irvin states that social media also creates an easy outlet for jealousy or distrust to flourish in a relationship. In fact, one in five people claim that they question their relationship after finding something suspicious on their partner’s social media account. Unfortunately, sometimes suspicions of infidelity are well warranted. Approximately one in ten people admit to hiding messages or social media posts from their partner and 8% of people even admit to having secret social media accounts. With all of this on the table, it is not surprising that one in three divorces are actually instigated because of online communications or affairs.

It is important to remember that even if your social media accounts are private, you can still legally be required to provide information from them during a lawsuit. Deleting anything will usually violate a court order and is unlikely to be effective anyway. As previously stated, information is never really gone once it is online. If you’re in the middle of a lawsuit, the best advice is to deactivate your social media accounts until the matter is settled.

The Law Office of Matthew S. Poole has the expertise to handle many types of family law cases. If you or someone you know is looking for a divorce or child custody attorney, please don’t hesitate to call us. We would be happy to help you obtain justice as efficiently and inexpensively as possible regardless of whether you or your spouse has committed an online “faux-pas.”

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

Domestic Violence as a Bar to Custody/Visitation Rights – or Not?

Thursday, May 31st, 2018

According to the National Coalition Against Domestic Violence, there are approximately 10 million people physically abused by an intimate partner in the United States every year. Unfortunately, 1 in 15 children are exposed to this violence and 90% of these children personally witness the incidents. It is no secret that the effects of domestic violence extend far beyond physical injury to trigger mental illness, substance abuse, and even suicide. With this in mind, courts typically find that it is not in the best interest of a child to be placed in the physical custody of a parent who has a history of committing domestic violence.

A “history” of domestic violence includes not only a pattern of abusive behavior, but also any isolated incident that caused “serious bodily injury” to a partner or another family member. However, it is not impossible for people with this kind of past to get physical custody of their children. In fact, a court may find that parental custody would be in the best interest of the child even if both parents have a history of domestic violence. According to Mississippi Code § 93-5-24(9)(a)(iii), the court may consider the following factors when determining whether or not physical custody will be awarded to a parent with a history of domestic violence:

(1) Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;

(2) Whether the perpetrator has successfully completed a batterer’s treatment program;

(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;

(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;

(5) If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and

(6) Whether the perpetrator of domestic violence has committed any further acts of domestic violence

If custody is not awarded to the parent with a history of domestic violence then visitation may be allowed instead. Generally, the court can mandate any condition that it deems necessary in order to ensure the safety of a child during visitations. Conditions may include, but are not limited to, supervision of the visitation, parent’s restraint from drug and alcohol use during and for twenty-four hours prior to the visitation, or prohibited overnight visitation with the parent.

Another rather interesting option the court has regarding visitations is to require payment of a bond for the return and safety of the child. In other words, the parent would pay a fee to take the child and then receive the money back once the child was returned without harm… Compared to the alternatives, this option often seems a bit out of place. For example, one may ask whether the safety and welfare of a child is really guaranteed by the leverage of a monetary payment. However controversial this option may seem, it is rarely used and is usually a last-resort measure. We must trust the chancellors of Mississippi to use the highest discretion to apply this option appropriately.

“Ne Exeat” (Latin for “do not leave”) security bonds are used to ensure the safe return of a child by preventing another party from leaving, or removing the child from, the jurisdiction of the court or state. Although Mississippi lacks a statutory provision for these bonds, they could still be required through the use of a chancellor’s broad equitable powers.

Ultimately, parents may still be granted physical custody or visitations with their children despite a history of domestic violence. If you or someone you know has a question about the custody or visitation rights of a parent with a history of domestic violence, please don’t hesitate to call us. The Law Office of Matthew S. Poole is highly experienced in these types of situations and we would be happy to help.

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

Gas Fumes and Perfumes: Modifications of Custody Involving Teenagers

Tuesday, May 22nd, 2018

While in court recently on a child custody modification, a chancellor was remarking on how difficult teenagers can be when they are smelling “both gas fumes and perfumes.” While also an attempt to break the tension in the room and to help the parties relax, the judge’s words evidenced how tough implementing a visitation schedule on a headstrong teenager with a driver’s license can be. In this particular case, the question posed to one of the parties was “what happens when the child doesn’t listen?”

This was an interesting question that different chancellors will approach in their own ways. A judge stated to me once that if a child did not want to attend a visitation with their parents, the judge would take their cell phone. Cell phones are life to many teenagers, and this judge found taking them away to be an extremely effective way to promote obedience of a court order.

What happens when a teenager really does not care about their phone? In the “gas fumes and perfumes” case, the child there was a lover of the outdoors who spent his time with 4-H and fishing, and did not really care if they had a cell phone or not. The judge in that case recognized this and posed the question of “what then?” Do we hogtie him and take him to the visitation? Throw him in jail? Hard labor? These questions become more difficult to answer when dealing with a teenager who is entering an exciting and confusing time of their lives.

Teenagers are notorious for doing the exact opposite of what they are told to do. It is simply in their nature. However, court orders are still court orders. They should be followed by whatever parties bound and should have consequences if not followed. The difficulty with teenagers is finding some way to punish them that will actually work. People of that age often do not have the funds to pay a fine, and if we threw every disobedient teenager into jail, we would have to build a million jails!

The biggest way to help facilitate teenage obedience of court orders regarding visitation seems to be communication. As a parent, the best thing to do is to talk about these visitation times with a teenager. Make them feel like it is something they want to do, rather than must do. Make them feel as though they are going to a second home and not a vacation. Teenagers want to have their concerns fall on ears that are listening. Striking a balance between parent and friend will help facilitate a teenager’s obedience with a court order, and to make sure that they won’t get in the car and drive off every time they want to act counter to that order.

Written by Kenneth B. Davis, Associate Attorney at the Law Office of Matthew S. Poole.

Importance of a Father in the Home

Saturday, May 12th, 2018

Maintaining the family unit should be the number one goal of any mother and father. Even when going through a divorce, it is essential that both parents are just as involved in their child’s life as they possible can be. However, with divorce ever on the rise in the United States, an all too common consequence of parent’s separating can be an absence of the father in the home. This can mean a great deal of adversity for the children later on in life. Be it an increased risk of poverty or a higher chance of incarceration, living without a father puts a child’s life squarely at risk for all manner of difficulty.

Since 1960, the percentage of children living in two-parent homes has decreased dramatically from 88% down to 66%. This drop has been caused by many factors, but the most prevalent one is the rise in divorce. Across the nation, married couples are calling it quits and their children are stuck in the middle. Unfortunately, this increase in divorce has made some dads pack up permanently, leaving their ex-wife with the kids, and their kids without a father-figure. This can have an indescribable effect on the life of a child.

According to the Census Bureau, there are 24 million children in the United States, and one out of three of them live without their biological father in the home. Compared to children who live with both parents, these children are four times more likely to live in poverty, and two times more likely to drop out of high school. Combine these statistics with the poverty income level in the U.S. only being $12,140.00 a year, a child living in a single parent, fatherless home has to escape becoming another statistic just to overcome the odds already stacked against them.

Risks of poverty and lack of education aside, there is a darker and more horrifying concern of growing up without a father. One of the more striking statistics provided by the Census Bureau shows that 63% of youth suicides in the United States are performed by children of single-parent homes. This is an astonishing number. To put this data a different way, one of the only single identifying metrics that connects two thirds of all children from around the country that commit suicide is the fact that they are raised in a single-parent home. This alone shows the importance of why maintaining a two-parent household is integral in a child’s life.

Going through a divorce can be the toughest thing someone has to go through. Although most everyone would rather not split up their own family, it is often not that simple. When mom and dad cannot work it out, or even refuse to work it out, the child suffers. Custody battles can be the same way. When one parent refuses to let mom or dad be a part of their kid’s lives, it hurts the child most of all. If you want to be a part of their child’s life, but are struggling because of divorce, custody, or your spouse is refusing your rights as a parent, please do not hesitate to call us. The Law Office of Matthew S. Poole is well-seasoned to handle these types of situations and we would be happy to help.

Written by J. Tyler Cox, J.D., Class of 2018

Finances In A Divorce

Monday, May 7th, 2018

A person’s financial situation has more influence over day-to-day life than almost any other aspect. Finances influence our ability to enjoy certain luxuries that life brings. Money is also a very private subject. Almost universally, it is considered rude to inquire about someone’s finances in a social setting, and also viewed as arrogant to brag about money. Therefore, when a prospective client comes to our office seeking to initiate or defend a domestic lawsuit, they are often surprised at the level of financial disclosure that comes with that proceeding.

Finances indicate more than personal wealth. They are a good indicator of a person’s ability to hold down a job, ably manage their finances, and to provide security for their families. Directing your finances in a sensible way shows the court a certain level of maturity. Money is hard to earn, and easy to spend. In domestic litigation, especially when children are involved, courts take into consideration how the litigants have been able to soundly oversee their earnings.

A parent’s finances are a factor in child custody cases, and the financial situation of the parents is even included among the Albright factors that chancellors use in making a child custody determination. You can view an earlier post on our website about that factor as well as the other Albright factors through our website’s blog search function. This does not mean that chancellors will simply look at which parent makes the most money and award custody to that parent. It is but one factor to show that the person seeking custody is able to provide for the child as they need and deserve.

Income also plays a large part in the awarding of alimony or separate maintenance. If one spouse in a divorce makes much more money and the other party needs some financial assistance, courts will take that into consideration when deciding whether or not to avoid alimony.

One of the most important documents in domestic litigation is the 8.05 Financial Declaration, named for the Uniform Chancery Rule that requires certain financial disclosures to be made. This document lists a person’s income, assets, and liabilities. Having an ex-spouse be able to see that information can make clients uncomfortable, but they are important declarations to make in these cases. Chancery courts, which handle domestic matters, are courts of equity. This means that chancery courts attempt to resolve disputes in a way that is fair to both litigants and that avoids unjustly enriching one party over the other. These rules regarding financial disclosures can be a friend to those who follow them, and a foe to those who don’t.

Our office understands the uneasiness that comes with giving out financial information, but we also have the experience to know that following these rules can only help the court look favorably upon a party. For a person involved in domestic litigation, being able to show the capability to control their finances will go a long way in achieving whatever goal that person wishes to reach. If you or someone you know has a question about the financial reporting involved in a lawsuit, call the Law Office of Matthew S. Poole. We will be happy to lend our knowledge to give you a response that is the truth, and to help you navigate any domestic legal issue you may have.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

Parental Alienation: Why You Should Act Fast

Thursday, May 3rd, 2018

Pretty regularly at our office, we unfortunately have child custody cases where one parent continually makes derogatory remarks about the other parent in front of their child. This is one of the worst things a parent can do when wanting to obtain custody, especially when the child is not old enough to legally have a preference with which parent he/she would rather live with. What many parents do not realize is that a parent has an inherent duty to foster and facilitate the relationship between their child and that child’s other parent. Disparaging the other parent can not only hurt their case in the eyes of a chancellor, but it can also adversely affect the child. From a chancellor’s perspective, belittling the other parent in an effort to negatively impact the child’s relationship with them is wholly improper and unacceptable.

When the “brainwashing” of a child by one parent gets so bad that it manipulates the child into disliking or not wanting a relationship with the other parent, there is more than likely a case of parental alienation. Parental alienation is a term used by child custody lawyers and child psychologists alike to describe what happens in situations where a parent has made conscious efforts, by negative words or actions, to upset their child’s relationship with the other parent. An example of this would be where a mother has spoken badly about a father, made derogatory remarks about him, or even lied about him to the child, all in order to alter that child’s feelings towards his dad, so that the child would not want to live with him.

Other examples of behaviors that can cause parental alienation include one parent discussing details of the parent’s relationship, scheduling the child’s activities during the other parent’s visitation time, not informing the other parent the times of those activities in order for them not to attend, denying the other parent important school and medical records, and giving the child ultimatums encouraging them to pick one parent over the other. This type of behavior has major consequences, and if not addressed as soon as possible, can permanently destroy a child’s relationship with their parent. A child’s mind is very susceptible, especially to a person that they instinctively trust – as they would a parent. Prolonged exposure to this type of influence deteriorates little by little any chance of a relationship they might have had with one of their mother or father.

In years past, parental alienation issues could only be brought up when there was a non-disparagement clause in the custody order. This prevented parental alienation from being any more than a contempt issue. Now, however, chancellors in Mississippi consider disparagement through the parenting-skills factor under Albright. With disparagement now being a consideration in Albright, it constitutes a material change sufficient for modification of custody.

Isolating a parent from their child is serious, and in the end, it does more damage to the child than it does to the other parent. To put it plainly, parental alienation is a form of child abuse. Chancellors know this, that is why any hard evidence that a mother or father is molding their child’s emotions negatively toward the other is met with extreme prejudice. Absent neglect and endangerment, nothing can kill a parent’s chances of being awarded custody more than harmfully reshaping their child’s relationship with their mom or dad. If you believe that this is happening to you, or someone you may know, please give us a call. We have the expertise to handle parental alienation cases, and any of your child custody needs.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

Don’t Just Ask for a Restraining Order

Sunday, April 22nd, 2018

Have you been physically assaulted by your spouse or the father (or mother) of your child? Have you contacted the local police and other authorities regarding the abuse? Oftentimes children are the primary victim of their own parents’ hatred of one another. If your children have witnessed one or more incidents of physical abuse, they are likely viewed by Mississippi law as victims of abuse and neglect themselves and have multiple avenues of recourse. While courts with criminal jurisdiction such as Justice Court, County Court, and Municipal Courts are able to provide you with a peace bond or other means of restraining your spouse/opposing parent from the harassment and stalking that so often accompanies domestic abuse, they have severe limitations.

Unfortunately, the separation of powers between the various types of courts in Mississippi can present additional challenges to the actual victims of domestic abuse. Mississippi Chancery Courts are of limited jurisdiction of all matters set forth in §159 of the Mississippi Constitution of 1890. The State of Mississippi is comprised of twenty (20) Chancery Court Districts (see §9-5-3, Mississippi Constitution, 1890). There are six (6) specific subject-matter areas in which Chancery Court exercises exclusive, complete, and ongoing jurisdiction, including “All Matters in Equity” and “Minor’s Business”. “Equity” is an often confusing and misinterpreted term. According to Black’s Law Dictionary (Seventh Ed.), equity has a four part definition, the first two of which are particularly telling as to the depth and breadth of Mississippi Chancery Court subject-matter jurisdiction. First, Black’s asserts that equity is “Fairness, impartiality, evenhanded dealing”. Secondly, It is “The body of principles constituting what is fair and right; natural law”. Clearly equity isn’t a lucid concept, rather a notion that is reflective of available recourse as to principles of justice.

Victims of domestic violence are able to obtain relief from Chancery Court per the procedure set forth in Mississippi Code Annotated §93-21-3 as well as those governed by Mississippi Rule of Civil Procedure 65. As codified, the victim of domestic violence, married or unmarried, may go so far as to award the abused parent possession of the home or to require that the perpetrator provide adequate housing including utilities and other related expenses. Also, Chancellors are empowered by statute to encumber jointly held assets and make adequate provision for the care and support of minor children as well as the victim. Custody of the children, child support, and visitation are all within the realm of properly exercised equitable judicial discretion. Equity permits that Chancellors have broad authority in the spirit of protecting those who cannot protect themselves.

In short, Mississippi Chancery Courts are empowered by legislative proclamation to address a variety of issues that adversely affect children, as they too are considered victims of domestic abuse. Often it is assumed that a court other than Chancery Court is able to afford domestic violence victims some level of redress outside of the scope of a restraining order itself. However, as previously stated, the exclusive nature of Chancery Court jurisdiction as to “Minor’s Business” and “All Matters in Equity” precludes other arms of the judiciary from ordering such relief to victims.

The victim of domestic violence not only is afforded relief in various forms both equitable and by statute, but retains significant advantages in the determination of both temporary and physical custody. Mississippi Code Annotated §93-5-24 provides in pertinent part that;

“there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest (i.e. in regards to the commonly cited Albright v. Albright factors) of the child to be placed in the sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered. This presumption may only be rebutted by a preponderance of the evidence.”

It is clear that victims, parents and children alike, are afforded significant protections from those who would harm them. Although the presumption that violence perpetrators are not proper custodians or decision-makers for a child may be overcome it presents a sufficiently robust obstacle to those persons who have been restrained, enjoined, or otherwise found civilly liable for home-trauma. To be clear, the ball is not in the abuser’s court. Our office is fully able to address all of the challenges that domestic violence creates.

If you or someone you care about is a domestic violence victim and is in need of an attorney with experience as to the best path forward, my staff and I are ready to provide you with the resources to obtain justice. Our office exclusively handles domestic litigation and is unlike so many other firms who lack the client base to remain focused on these matters. We have 14 years of experience in this sub-category of Mississippi law and the will, desire, and knowledge to ensure that equity will be done.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

No Law Degree Needed to Know What’s Fair

Wednesday, April 18th, 2018

Many lawyers will tell potential clients that immediate action is needed to protect their rights and that they need to file a lawsuit now. This is often correct, as claims often go stale and witnesses forget what they have seen. However, in domestic relations law, sometimes the best practice can be resisting the urge to file a lawsuit and go to war.

Chancery courts are courts of equity, which means that the chancellors of those courts will seek to rule in a way that is the fairest to both parties. This allows clients who are not familiar with the process of a lawsuit to do a lot of the ground work themselves or through their attorneys. You do not need a law degree to know what is fair. Our office often receives calls from potential clients who have not talked to the other party about the situation, when that actually may be the best course of action.

Of course, sometimes lawyers may be more aggressive about starting a case than they should be. The thought process is that maybe the other side will realize what an inconvenience a lawsuit is and will be open to settling. While this may work sometimes, it seems like an unnecessary step in getting to what’s fair. Those two parties who once shared a bond or perhaps still share a child can only benefit from at least trying to communicate about what is fair to make it easier on everyone involved.

If you believe that a lawyer you meet with seems hell-bent on filing a lawsuit to get you what’s fair, you may want to speak to a different lawyer. When you leave that lawyer’s office, you should not feel as though you must file a lawsuit or they will not help you. Some parties only need the advice from a lawyer to try to talk to the other person, and in most situations it is worth the time and effort to try that. Otherwise, the nasty back-and-forth of a lawsuit will drain the time, resources, and emotions of the parties.

The lawsuit is a great thing that allows Americans to seek redress of the wrongs done to them. However, this process can also be abused. In chancery courts, where equity is king, sometimes the best option is to talk it out. If you visit a lawyer who seems to not consider that an option, a second opinion may be just what you need. If you or someone you know is going through a situation like this, call the Law Office of Matthew S. Poole. We have the experience in these matters and will give you an honest answer as to all of your options.

Frontline Prospective On Child Custody Law

Friday, April 13th, 2018

Working under Matthew Poole, a saying that I hear almost every day in the office is: “if everyone was reasonable, child custody lawyers would be out of a job.” As the main individual who handles calls to our office, I can tell you from first-hand experience that this is true. Working in a family law office can definitely show you the bad side of good people, and the people that call our office are usually in situations where tempers and emotions are high. As the person in our office who handles the majority of these calls, my perspective is that there are things that people can and should do to both save money and to help their situation in the long run.

From the start of my employment here, I noticed some commonalities between the variety of different calls we would receive on a daily basis. The main commonality in every call that we have received is lack of communication between the potential client and the person they are having issues with. If I could give any advice to those in these situations it would be that communication is key. There are so many situations where if the two people could just put differences aside and start a conversation with one another, it would save them so much heartache and money. After an extensive case study on custody matters, our office has found that 25% of people agree to settle their case with the same agreement that was offered to begin with. This shows that if the two people could just communicate without getting attorneys involved, they would not waste thousands of dollars on litigation; giving them more money to spend on the child.

I understand that communicating in situations like divorce and child custody can be tough. But in those circumstances, particularly when children are involved, being able to talk to the other side is vital. For instance, being able to have an open dialogue with the other parent in a child custody case can and will make it easier to deal with them later on down the road. Even though it’s hard, it would be so beneficial for the children if their parents were able to talk and communicate with each other about the children’s needs. It’s not easy for someone going through something like this to shelf their emotions and be the first one to reach out and start a dialogue, but in all honestly it is the best course of action to resolve their issue. To put it simply, every dollar spent on a lawyer could be spent on the kids. Why waste resources on litigation when simple communication could resolve the issue and leave that money available for the child? Doing so would dramatically decrease stress and replace it with tranquility. Just remember, the happier that a parent is, the happier the child will be.

Price is certainly something that most potential clients are sensitive to, and therefore we encourage all of our clients to attempt to talk with the other side as much as possible. Communication can help iron out many of the problems present, and can lower costs greatly for both parties. We understand this can be tough in a situation where there was a falling out of a once caring relationship. Unfortunately, there are times where starting a conversation is next to impossible and getting an attorney involved is the only option. If you believe hiring an attorney is your only avenue of relief, call the Law Office of Matthew S. Poole. We will do our best for you when communication has broken down in your relationship to get you a fair result.

Written by J. Tyler Cox, J.D. Candidate, Mississippi College School of Law, Class of 2018.