Posts Tagged ‘valid’

Annulments: What They Are and What They Aren’t

Monday, April 9th, 2018

An annulment is an interesting way to sever a relationship that may resemble a divorce in some regards, but is actually quite different. Our office receives many calls asking how to get an annulment, when maybe that person only has divorce to look to for relief. While a divorce severs a valid marriage, an annulment states that the marriage in question was never valid for a reason that existed at the time of the marriage. Annulments can be difficult to obtain, as there are only limited circumstances in which a Mississippi court will grant one. Time plays a factor as well, as a suit for an annulment must be brought within 6 months after the ground for annulment is or should be discovered.

Mississippi law states that a marriage is deemed valid if there is solemnization (a ceremony) and a proper license. When two people decide quickly to get married without any input or help from others, these are easy things to gloss over, especially in the rush and excitement of saying “I do.” A “marriage” with only one of these requirements met will not meet Mississippi’s standards, and therefore a marriage was never legally formed.

Of course, certain marriage even with these requirements met may not be considered valid under any circumstances, as in the case of bigamy or incest to a certain degree, and does not have to be brought within 6 months of the formation of the “marriage.” Dissolving a marriage involving either of those grounds simply requires a petition to the proper court by either of the parties along with sufficient proof. The other grounds for annulment in Mississippi are incurable impotency, adjudicated mental illness or incompetence of one or both of the parties, the parties being too young, pregnancy of the wife by another person if the husband did not know of the pregnancy, or where a party’s consent to the marriage was achieved through force or fraud. In other words, informed consent is paramount to any marriage.

As you can see from the limited grounds for annulment in Mississippi, there are many situations where an annulment is not available to the parties, and they will have to pursue a divorce to legally terminate their relationship. A common misconception that we hear is that because a marriage was short, then the parties can get an annulment instead of a divorce. While marriages that may be properly annulled by Mississippi courts are often short, the length of the marriage by itself is not enough for an annulment.

Annulments are an interesting creature of domestic relations law and can be confusing and difficult to pursue. If you believe you may have a ground for an annulment that can help you avoid a long and costly divorce, call the Law Office of Matthew S. Poole. We have experience in making the determination as to whether a marriage can be rendered moot and can be considered to have never existed, whether an annulment is a possible remedy, or whether divorce is the only avenue.

Hindsight is 20/20: Lessons From an Attorney Divorcee’

Monday, July 3rd, 2017

I am currently an attorney in the state of Alabama and have known Matthew Poole since 2003 during our time with the Mississippi Attorney General’s Office. Following is a first hand experience that is significant when confronted with divorce.

The old saying “hindsight is 20/20” is certainly an overused cliché, but could not be more fitting to describe my experience with divorce.  I learned some difficult lessons over the course of what I describe as my “4 year divorce” and my goal is to provide you with a map to avoid the same mistakes I made. You may hear that no divorce is the same, but most divorcees face many of the same pitfalls.  If my open and honest discussion helps just one other dad avoid four years of trials and tribulations, then this blog will be a success. If one child benefits from the message about the importance of co-parenting, this is a pure success.

To paraphrase a wise saying, “you can’t know where you are going until you know where you have been.”  Four years of journaling my divorce provided me the unique opportunity to reflect on where I was emotionally at each step of my divorce.  My journal is a snapshot of my thought process at the very moments I made each mistake in my divorce and would certainly be the “knowing where I was” and having the opportunity to see it in hindsight gives me the clarity I need to “know where I am going.”

Wrong turns in divorce don’t start at the moment the divorce is finalized; not even close.  Vital decisions are made in the pre-divorce period that will carry long-lasting implications and results in newly divorced fathers facing nearly insurmountable odds of being the best dad they can be.  There comes a point in the pre-divorce process that the inevitability of divorce sets in.  For me, this crucial point came after months, or more realistically years, of efforts to keep my family together.  I was physically exhausted, emotionally drained, and filled with anxiety about the unknown.  That is when I made not just the first wrong turn, but THE wrong turn that set me on a path that took me fours years to begin to correct.  I have a name for it. I call it my moment of “white flag surrender.”

Waiving the proverbial white flag was my way of doing what I thought was best for my children.  Remember, if you are in unfamiliar territory and you are exhausted and desperate, you will not make the best decisions for your family.  I agreed to give my ex-wife everything and I mean everything.  My wife got the kids, house, condo, cars, bank accounts, and even family heirlooms.  I walked away with my clothes. I made the mistake of representing myself, and that is something even the finest lawyer should avoid.

My first wrong pre-divorce decision directly resulted in my starting my new life as a single dad unable to support my kids in the way they needed. If you have yet to hear your attorney or judge use the phrase “best interest of the child,” you soon will.  Every decision made during the entire pre-divorce and divorce processes should be made through the lens of what is in the best interest of your child.  That is to say, while contemplating decisions you face, you must ask first “what is in the best interest of the child?” Having two emotionally and financially secure parents is always in the best interest of your children, and by doing what I thought best. I wrecked myself financially and then emotionally, thus, leaving my children with less than 2 reliable parents.  

Navigating the divorce process was stressful, but by putting myself in a position of weakness (i.e. impatience) during my pre-divorce surrender, I fared much worse in the final divorce decree (more on that in later blog entries).  Every hasty decision (there were many!) I made was in the interests of receiving finality instead of with the realization that the court’s order would be in place barring monumental litigation.

Divorcee Life-lesson One:

Pre-divorce is not the time to throw in the towel to all of your ex’s desires and demands, even if you think this might be what is best for the kids.  Remember, two financially strong and emotionally stable parents are what is ultimately in the best interest of the kids. Pre-divorce is tough. The whole process is foreign to you.  You will be scared.  You will be emotionally drained.  You just want the pain and discomfort for everyone to end.  Believe me, I know.  But you will only make matters much worse for your kids, your ex and yourself if you do not position yourself to exit your marriage as financially secure as you can justly make it for yourself. If you resist the urge to surrender (and dang it is a strong urge), you will be a better single father, a better ex-husband, and ultimately, that is all that matter to your children.      

As you set out on your new journey as a single dad, you will need to prepare yourself for the stresses that await you throughout the divorce process. It is pivotal that you fight the urge to waive that white flag before you ever get started. Do not set out on this path alone and don’t be ashamed to ask someone to be a part of your support network. Use every tool you have to remain focused on the best interest of the kids while fighting that urge to throw in the towel. If you will heed this advice you can come out the other side of your divorce much better prepared to take care of your kids while avoiding the four-year journey I took down the wrong path filled with pitfalls disappointment and heartache.

If you are contemplating a divorce, whether it be high-asset based or the primary concern is that of your child’s well-being, The Law Office of Matthew Poole has the experience and expertise to assist you in making one of the most crucial decisions of your life. Don’t attempt going it alone, even if you are an attorney.

Consent Judgments in Child Custody

Monday, May 22nd, 2017

One common misconception about family law in the state of Mississippi is the way that agreements regarding child custody operate. In cases involving child custody, consent judgments may be entered into by parties to best create a custody arrangement for that child.

A consent judgment is a contract of the parties entered upon the records of a court of competent jurisdiction with its sanction and approval. That consent must be present when any order is entered, and the order is considered void if either party withdraws that consent before the judgment is entered. If a party believes that the consent judgment is invalid, they bear the burden of proof in showing that invalidity to the court. Consent judgments allow parents in Mississippi to work out a custody schedule for their child with a lower level of confrontation, stress, and money than in litigation.

We understand that often parties will be tempted to not involve the court system in child custody matters, often to avoid involving the minor child in a lengthy and stressful process. However, as appealing this may seem in the beginning, it is not a good practice to follow. If one party refuses the other party time with the child, there is no court order that a party can seek to have enforced. This is the largest reason that consent judgments should be considered from the outset of a child custody matter. It protects the rights of parents to spend time with their minor children, and it can ease the hardship on the minor child when one parent attempts to have them “pick sides.”

Children are not goods; they cannot be bartered for, and their custody should be taken seriously by all parties involved. Consent judgments in cases involving child custody are often the preferred route for everyone involved, and if done properly they can minimize the stress that these cases have on the parents, the lawyers, and most importantly, the child or children. If you or anyone you know has a question about judgments involving child custody, please contact the Law Office of Matthew S. Poole at 601-573-7429.

 

Prenuptial Agreements are Always Enforceable, Correct?

Wednesday, December 28th, 2016

In Mississippi, as well as every other state, many couples seek the protections and predictability that can often be offered by entering into a contract prior to marriage, commonly referred to as a prenuptial agreement. While prenuptial agreements are generally valid and enforceable, there are exceptions that a client needs to be aware of as to the terms of that agreement prior to entering into such an contract.

The Mississippi Supreme Court has ruled that any prenuptial agreement is enforceable just as any other contract. However, the execution of the agreement must be deemed to be fair. The general consensus is that fairness indicates that the agreement has to be entered into voluntarily and with full disclosure of both the husband and wife’s financial assets. It’s clear that fairness can encompass many different ideals; however, the providing of entire disclosure as to the parties’ finances and/or the knowledge of each other’s financial state is a paramount concern when entering into a prenuptial agreement. Fairness can also be affected by whether or not the parties are represented by counsel, or whether the parties had time to review the agreement prior to its execution. In other words, if either party is under duress in signing the prenuptial agreement, it is possible that the court may invalidate certain terms or conditions contained in the prenuptial agreement. The education of the parties is also a factor in whether or not the agreement was sufficiently explained or so complicated that an explanation as to the terms was necessary. It is important to note that execution of the agreement could be considered fair by a chancery court even in the case that either side is not represented by counsel.

Our general advice to any client who is seeking the protections of a prenuptial agreement is to contact an experienced Mississippi attorney who is able to guide you through the potential landmines that can occur in the prenuptial contracting process. It is also important that clients recognize that prenuptial agreements have to be consistent with public policy and cannot fly directly in the face of clear statute in state of Mississippi. Some examples of a prenuptial agreement being deemed invalid by chancery court would include not only cases where the contract between the husband and wife are directly inconsistent with Mississippi statute, but also when the parties have contracted to a matter which is deemed at odds with public policy. Although public policy exceptions are less likely to occur, it is important to note that a court always has the ultimate say in determining whether or not the terms of the contract are fair and just. A court could also deem certain terms under a prenuptial agreement be deemed unconscionable. All of the laws and regulations related to any contract also apply to prenuptial agreements. Therefore, prenuptial agreements are not given specific immunity from being deemed invalid by a court simply because the parties agreed to the terms.

If you need assistance in drafting a prenuptial agreement, we are equipped to assist you in that process. We are able to help you consider the factors that may not have been considered to this point, and will be able to draft the contract in such a way that it will be deemed most likely valid if it were challenged in the event of a divorce or separation. If you need assistance with any of these matters, call the Law Offices of Matthew Poole, 601-573-7429.
Law Office of Matthew Poole