All posts by BowTieLawyer

Matthew operates the Thompson Law Firm, pllc, a Mississippi based Family Law firm emphasizing; Divorce, Child Custody, Child Support, Modification, Contempt and Appeals, handling family law cases throughout Mississippi. (601) 850-8000 Matthew@bowtielawyer.ms www.BowTieLawyer.ms

Divorce, General Legal

Latin Lessons; Nunc Pro Tunc

04/16/2013 BowTieLawyer 1 Comment

Nunc Pro Tunc means now for then. In general, a “nunc pro tunc” ruling applies retroactively to correct an earlier ruling or to enact a ruling at the time Ordered, as opposed to when the Order was prepared. Nunc Pro Tunc is the legal equivalent of traveling back in time!

Practical applications of Nunc Pro Tunc can be seen in the following examples.

The Court issues a ruling from the bench. The “winning” side’s attorney is instructed to draft the ruling and provide to counsel opposite. However, there are certain things that have to be done on a deadline based on the Court’s ruling date. The clock is ticking. Counsel preparing the Order may well Nunc Pro Tunc it back to the original date it was ordered as opposed to the date it was signed, which could be a week to 10 days later, so the deadlines begin/began when the Court ruled. Otherwise, the party’s and attorneys may argue as to when time limits began to run and when deadlines expire.
Sometimes mistakes happen. It is not uncommon to see the Judge, or have Court, in a different county than where the matter was filed. Judges routinely sit over multiple counties. Orders must be filed in the proper county. On occasion the Order will be signed by the Judge and the attorney does not get the Order filed that day because it requires travel to another county. Sometimes, that Order may not be “filed” until well after the fact. In this situation, a second Order may be prepared which, via Nunc Pro Tunc, retroactively gives effect to the prior unfiled Order. Just be sure to file your second Order!

Nunc pro tunc is a mechanism for legal time travel.

Matthew Thompson is a family law attorney in Mississippi and knows about legal time travel.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.

Divorce, Marriage, Property Division

Don’t Spend Money on Your Girlfriend!

04/12/2013 BowTieLawyer 4 Comments

Another factor considered in Equitable Distribution is the Degree to which each Spouse has Expended, Withdrawn or otherwise Disposed of Marital Assets and any prior distribution of such assets by agreement, decree or otherwise.

(This blog is another in a series of blogs regarding Equitable Distribution in Mississippi. Equitable Distribution is the method employed by the Court’s to determine how marital property is to be divided in a divorce. The basics and factors to be considered can be seen here, Marital Property; How it’s Divided (click)).

Expended, Withdrawn or Otherwise Disposed refers to multiple possibilities. One of the most common is marital waste. Marital waste is the wrongful or improper use of marital assets, though not necessarily illegal. Marital waste is basically when marital monies are used for non-marital purposes. Common examples include; monies spent on a paramour (boyfriend/girlfriend), gambling losses, monies spent on an addiction like alcohol or drugs. Bad investments may or may not be waste, it depends on the facts. Selling a marital asset for significantly less than its value is. So, if you have a Jeep worth $13,000 and sell it to your Uncle for $3,500, don’t assume you are in the clear. The Court can “balance the equities” and you will be ordered to reimburse your spouse for the their value in the asset.

Prior distribution is just when the parties divide assets prior to getting into Court. If the parties agree to a division of some assets the Court may not disturb it, but can certainly consider when dividing the remaining assets of the marital estate.

If you are married, Do Not spend money on your girlfriend/boyfriend.

Matthew Thompson is a family law attorney in Mississippi and advises his clients to not have boyfriends or girlfriends and if they do to not spend money on them.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Divorce, Marriage, Property Division

Mopping It Up in a Divorce

04/11/2013 BowTieLawyer 2 Comments

The first factor considered in Equitable Distribution is Substantial Contribution to the Accumulation of the Property.

(This blog is one in a series of blogs regarding Equitable Distribution in Mississippi. Equitable Distribution is the method employed by the Court’s to determine how marital property is to be divided in a divorce. The basics and factors to be considered can be seen here, Marital Property; How it’s Divided (click)).

Factors to be considered in determining contribution include;

Direct or indirect economic contribution to the acquisition of the property;

Direct contributions include earnings from your job and using that income to pay for the house, cars, investments, retirement contributions and paying down debt. These “direct” contributions are attributable to the bread-winning spouse.

Indirect Contributions include child-rearing and homemaking efforts. In fact, the law considers domestic or household duties equivalent to working outside of the home. So who cooked, cleaned, did the dishes, laundry, yard upkeep, maintenance, and other similar tasks are relevant. Stay-at-home moms work!

Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage

Stability and Harmony of the Marriage concerns the parties’ conduct. Marital fault and even conduct that may not rise to the level of marital fault are considered here. The division of chores and the “roles” that the husband and wife played matter. Also, length of the marriage is considered.

Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.

Contributions to Education and Training is most commonly seen when the “young couple” gets married and one spouse works while the other finishes their advanced degree and/or professional training. Did the wife work and/or be the primary caregiver for the children while the husband finished Medical School and residency? Cliche’, but true. Her efforts working, taking care of the young family allowed him to finish his education and training so he can earn a greater living. The Court considers the value the wife contributed so that the husband’s earning capacity could be greater.

Matthew Thompson is a family law attorney in Mississippi and some of the above factors hit “close to home.”

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Divorce, Marriage, Property Division

Alimony, Palimony & Baloney

04/10/2013 BowTieLawyer 6 Comments

Alimony is one of the least understood aspects of a divorce. Alimony is a payment from one spouse (or ex-spouse) to the other, when a financial need exists. This payment is to maintain the receiving spouse in the “manner in which they had grown accustomed” during the course of the marriage. However, alimony is not a punishment to be awarded by the Court, nor is it an absolute in all situations.

Alimony is governed by the Court and the considerations are outlined in the case of Armstrong. These Armstrong factors are considered and reviewed after the Court conducts Equitable Distribution (click), and only if the Court determines one party would be left with a deficit. Then the Court considers the facts specific to your case and then a determination is made as to whether alimony is to be awarded, how much, and how long it is to be paid. The factors include;

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).

Within Alimony there are 3 basic types;

Permanent (or Periodic)- Forever! Until death or remarraige, usually deductible and modifiable.
Rehabilitative – limited in time and amount. May be subject to taxes and may be modified depending on specific language.
Lump Sum – “Guaranteed” can be in one lump or in installments, non-modifiable and non-taxable.

A brief discussion of each “type” of alimony will be posted in the future and linked back to this article.

So what is Palimony?

Palimony– alimony when the parties lived together, but were not married. Can’t do it in Mississippi.

What about Baloney?

Baloney- A Spouse at fault can’t get Alimony? Not TRUE, it is possible. The Court will conduct an Armstrong Analysis.
A Husband can’t get alimony? Not TRUE, it is possible. It would be unconstitutional to discriminate based on gender.
Must be married for at least 10 years? Nope. The longer the marriage the better, but it’s possible to get some types of alimony even in short marriages.

Matthew Thompson is a family law attorney in Mississippi. Questions about Alimony? Call? Questions about Baloney? Don’t.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000

Divorce, Property Division

Marital Property; How it’s Divided.

04/08/2013 BowTieLawyer 9 Comments

“What’s yours is mine and what’s mine is mine.”

Sometimes splitting property in a divorce feels like this infamous quote!

Mississippi is an Equitable Distribution state, NOT a Community Property state. The main difference is that Mississippi Court’s have discretion from requiring a 50/50 split in every circumstance. In fact, Equitable Distribution means “fair, but not necessarily 50/50.” I have previously touched on division of stuff in Fighting Over Furniture.

To determine what is fair, a number of factors are used called the Ferguson Factors.

“Therefore, this Court directs the chancery courts to evaluate the division of marital assets by the following guidelines and to support their decisions with findings of fact and conclusions of law for purposes of appellate review. Although this listing is not exclusive, this Court suggests the chancery courts consider the following guidelines, where applicable, when attempting to effect an equitable division of marital property:

Substantial contribution to the accumulation of the property (Mopping it Up in a Divorce, click for explanation). Factors to be considered in determining contribution are as follows:
1. - Direct or indirect economic contribution to the acquisition of the property;
  - Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
  - Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
The degree to which each spouse has expended, withdrawn or otherwise disposed of marital asset(Marital Waste; Don’t Spend Money on Your Girlfriend). and any prior distribution of such assets by agreement, decree or otherwise.
The market value and the emotional value of the assets(Sentimental Value can be Valuable) subject to distribution.
The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution (Sentimental Value can be Valuable), such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
Any other factor which in equity should be considered.“

Ferguson v. Ferguson, 639 So.2d 291 (Miss. 1994).

In a series of future blogs a small discussion of each factor will be posted, and linked back to this post. The first step is knowing these factors. How the Court applies the specific facts of your situation to these factors determines who gets what.

Matthew Thompson is a family law attorney in Mississippi and wants you to end up with your Stuff!

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Child Custody, Child Support, Divorce, General Legal, Modifications, Visitation

A Fool for a Client…and Lawyer

04/04/2013 BowTieLawyer 1 Comment

“He who represents himself has a fool for a client.”

– Abraham Lincoln

Oh, I have heard the stories that so-and-so did it and “won,” but that is the exception and not the rule. Family law cases are hard to manage anyway, much more so if you don’t know what you are doing and if your judgment is clouded by high emotions. I have seen many a Pro Se client just do awful.

Pro Se is the term the Courts use. It is Latin, meaning “for oneself.”

Lawyers have specific training and education regarding Court rules, rules of evidence and procedure. Legal matters require things be done in a certain fashion or they are not valid. Lawyers, usually, have experience with that particular area of the law and the Judge handling the matter.

I was involved in a case where the father, representing himself, sued the mother for interfering with his visitation, according to him. He filed the suit, had her served and got a Court date. Oops! He did it wrong. After filing, he should have gotten the Court date, had a summons issued (the correct summons by the way, a Rule 81 Summons in this instance) and then had the mother served. Because he did it wrong it, he could not get the relief he was seeking and had to do it over. In the meantime, mom met with her attorney, who asked the right questions. It turns out dad was well behind on his child support and that the child and the father had a significant altercation which prompted the visits to stop. Now, mom was armed with a lawyer, the law and filed against dad. Ultimately, dad was held in contempt for non-payment of support. He had to pay mom’s attorney fees and once the Judge heard about the altercation between the child and father, he ordered anger management counseling for dad and restricted visitation until dad re-petitioned the Court for visitation, after completing the counseling. I like to think that if I had represented dad it would have been a different outcome or perhaps dad could have tried to resolve things without Court involvement. He should have had an attorney. Click here for blogs on “Do I Need an Attorney?” & “How do I Find an Attorney?”

Representing yourself is about the worst thing you can do in a divorce and custody case!

Matthew Thompson is a family law attorney in Mississippi and thinks it wise to see an attorney before you try to represent yourself, and to not do it even after that.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.

Divorce, General Legal, Irreconcilable differences

Attorney Fee$ in Divorce

04/03/2013 BowTieLawyer 2 Comments

Attorney fees are always a big topic in family law. Nobody wants to pay ’em, but everyone wants to get ’em, including attorneys!

In Mississippi, the standard to recover attorney fees is based upon the client’s ability to pay. If the client has the ability to pay attorney fees they will NOT recover attorney fees in the typical divorce. Upon a showing of inability to pay a client may recover reasonable attorney fees. This holds true even if they are the client “at fault.” What? Yes. It’s about the ability to pay, nothing else, usually.

If a client can demonstrate an inability to pay, the Court conducts an analysis of the “McKee Factors” to determine the reasonableness of the attorney fees. McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982), lists the following factors that the Court considers before an award of attorney fees is made.

Parties’ relative financial ability
Skill and standing of the attorney
Novelty and difficulty of the issues
Degree of responsibility involved in management of the case
Time and labor
Usual and customary charge in the community
Preclusion of other employment as a result of accepting the case

The client and client’s attorney would both testify regarding these factors, the attorney more so. This is one of the few instances where an attorney is allowed to represent a party and be a “witness” in the same matter. After the Court has determined inability to pay, the Court looks as the above factors and the evidence/testimony offered regarding McKee and makes a determination regarding attorney fees. The Court has broad discretion in awarding attorney fees and the award is routinely less than the actual amount paid or owed.

Additionally, the standard is different for contempt, fraud instances and if a party’s actions caused the fees to be higher unreasonably. In contempt the Court may award fees upon a finding of contempt and the Court can sanction a party for misconduct, including an award of attorney fees against the wrongdoer.

So will you recover your attorney fees? You might, but then again you might not and if you do you may not get what you actually paid, or what you actually owe. Also, most attorneys will have already have been paid, so then, how do you show inability to pay? Promissory notes and loans. Document it if you borrowed the monies and have the lender prepared to testify it’s a legitimate loan, even if it’s your parents.

Lastly, just because you have the present inability to pay does not mean you are guaranteed recovery of fees. If the Court awards you enough assets through your case, you may not recover attorney fees because the Court figures you have enough to pay them now.

Matthew Thompson is a family law attorney in Mississippi and is upfront with his clients about attorney fees, expenses and the likelihood of recovering those fees.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.

General Legal, Opinion

Churchill Wisdom; On Guns

04/01/2013 BowTieLawyer 1 Comment

Winston Churchill, who appears not infrequently as a part of this blog, was known to carry a firearm on his person.

The above, a 1896 Broomhandle Mauser, was his military issued firearm.

According to British firearms author and historian Richard Law, knowing Churchill had been targeted by Hitler’s agents for assassination, Churchill always went armed, his bodyguards notwithstanding. He kept a Thompson sub-machine gun, loaded in a rack within easy reach in his official limousine. Discovering that his chief bodyguard carried a little .32 Webley, Churchill ordered a new Colt Government Model .45 for his him. A short time later, Churchill asked the chief bodyguard how he liked the new pistol. The man replied that he was still carrying the .32 because the Colt was too heavy.

“Give it to me, then,” snapped Churchill, as he shoved it into his overcoat. This became the great leader’s personal carry gun until the end of the war.

Prior Churchill Wisdom includes;

Mississippi, beginning in July, will allow open carry and 2 levels of concealed carry are currently available for residents.

Matthew Thompson is a family law attorney in Mississippi. Contact TLF with your family law or firearm law related inquiry.

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.