Category Archives: Child Support

Child Support, Divorce

Financially Ever-After; Assets and Lies

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Financial issues abound in almost every divorce action.  The parties fight over the money, the debt, the house, the business and anything else of value.  The financial consequences of divorce can not be overstated.  It typically results in a change in lifestyle for both parties, and despite the law that contemplates “maintaining the lifestyle of which you have grown accustomed,” divorce frequently results in both parties living a reduced lifestyle. It takes more money to run two households than it does one.

Mississippi Courts use a form for financial disclosures. This form is called an “Eight-oh-Five,” as it is Rule 8.05 (clickable) which requires the completion and use of a financial statement in family law cases.  The 8.05 must list all income, assets, expenses and liabilities.  Whether they be “joint” or solely owned by one party, they have to be disclosed.  The 8.05 also must include a recent pay stub, work history and the most recent tax return.  These are to be completed under oath and are subject to perjury safeguards.

Persons who have submitted materially false 8.05s have been held accountable by the Court, even well after the fact.  In a recent, notable case the husband, who also had a girlfriend, won the lottery about 2 months before the divorce. He did not disclose the winnings and it was an out of state lottery so the wife did not hear about it.  The parties were divorced.  About 4 years later, the now ex-husband’s girlfriend called the ex-wife to let her know that the husband had won the lottery just prior to the divorce. Why?  Well, the girlfriend found out that the fellow was now cheating on her.  The ex-wife filed a petition to re-open the matter due to fraud.  The husband’s failure to disclose was found to be “fraud on the Court” and the case was re-opened. The wife was awarded a portion of the winnings and attorney fees.

Moral of the story; disclose your assets and be honest. The Court requires full disclosure.

Thompson Law Firm, PLLC      (601) 850-8000

Matthew@bowtielawyer.ms

 

Child Custody, Child Support, Divorce

Separation Preparation…

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First of all, there is no such thing as “Legal Separation” in Mississippi. The closest equivalent is a Temporary Order. This Order can either be the result of a temporary hearing or due to an agreement of the parties reduced to writing and approved by the Court. A temporary hearing and resulting Order, or Agreed Order, are usually done when a fault based divorce is on file with the Court.

A Temporary Order deals with short-term financial and custody/visitation issues, pending a final hearing.  This is intended to be a “band-aid” on the situation and to maintain the status quo while  trial preparations are happening.

A “Legal Separation,” while not recognized in MS law, is typically a different animal than a Temp. Order. Parties can separate in Mississippi, though not “officially”.

The thought behind the a Separation is to allow a cooling off period or a trial-run at no longer living as husband and wife and seeing how that works.

The problem with attempting it in MS is that it requires a great deal of trust between the parties as there is no Order, or teeth, if one party reneges on their agreement with regards to finances or custody.  And typically there is not a great deal of trust between separating parties.  However, a separation is a viable option in the tool belt of bringing calm to highly emotional domestic situations and can even lead to reconciliation in some circumstances.

What needs to be considered for separating, be it agreed or Court ordered?

  • The Children.  What is the custody and visitation schedule?  A Court would use the Albright factors to make a determination.  If by agreement, the parties have a lot of leeway in what the arrangement is.
  • Financial Support.  How much child support? How much spousal support?  The Court requires each party to complete a financial statement and exchange it with the other party.  Support awards are based on adjusted gross income and reasonable needs of the parties.
  • The House.  Who stays in the home?  Typically it’s the spouse that has the children, but regardless of who gets the house on a temporary basis, it does not mean that is how it will be at a final hearing.
  • The Bills.  Who pays what?  The house, utilities, school, cars, credit cards, etc… This is always a bone of contention.
  • Conduct During Separation.  In Mississippi you are married until you are divorced.  Even if you and your spouse have an “agreement” your spouse could still get grounds for divorce against you during a separation.
  • How Long is the Separation?  When do you decide to try something else?  This will be based on your specific facts and circumstances.

Matthew Thompson is a Litigation Attorney in Mississippi and can help you separate on temporary and permanent basis.

Follow the blog:#BowTieLawyer 

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Child Custody, Child Support, Modifications

Changing your Court Papers; Custody vs. Visitation

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Modification is the process that is used to change a Court Order.  We previously discussed how NOT to modify your papers here.

Below are the basics for the right way to modify your current Court Order.  Child Custody, Visitation and Child Support are always modifiable. However, each has a separate standard.  Each require that you prove something different…

1.  Child Custody is the most difficult to modify. The non-custodial parent, must demonstrate 1) a material change in circumstances,  2) adverse to the child, 3) in the home of the custodial parent.  In English, dad has to show that there has been a big change, harmful to the child and it was mom’s fault.  It does not matter how much better dad is doing.  It does not matter that he has a new job, making good money, and has remarried Mary Poppins.  The Standard concerns what is going on in mom’s house.

A material change could be bad grades, serious behavior problems, serious problems with mom or serious problem with mom’s new beau. Now, once you show the bad change, harmful to the child, and it’s mom’s fault, dad wins, right? No. That provides the Court the authority to go back through the Albright factors for the Court to determine which parent is in the best interest of the child.

2.  Child Support is modifiable upon a showing of  1) a material change in circumstances, unanticipated at the time of the Order and that either the 2) paying parent’s income has increased (or a non-voluntary decrease) in a meaningful capacity or that the 3) child’s reasonable needs and expenses have increased, or both an increase in income and needs.  It should be noted that Child Support is statutory, as noted here, and the paying parent’s responsibility to pay does not continue to increase, just because his/her income does.

3.   Visitation has the lowest standard to modify.  In order to modify visitation all one needs to do is demonstrate that the current schedule is not working.  This can be shown by showing that a party moved over several hours away making every other weekend unworkable or by showing that due to the child’s schedule, or a parent’s work schedule the visitation plan is not working.  This one is easier to pursue, but the outcome is not always predictable, so have a plan for what schedule will work if you are seeking to change it because of distance or a work schedule issue.

*Certain other aspects of Order’s can/may be modifiable as well; ie; alimony, other child benefits.

Matthew Thompson is a Mississippi Child Custody Attorney and reminds you to follow your papers.

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

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Child Custody, Child Support, Modifications

Modifying Your Divorce Without the Court, Think Again.

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This is an all too common occurrence.  Mom and Dad get divorced, rock along and a few years down the road they decide to change their deal.  They are getting along, at least better than before the divorce, and both are burned from their past experiences with attorneys and attorney fees.  So…they decide we can handle this like mature adults.  Dad wants a custody tweak, Mom needs a support adjustment – bam-shabang– let’s just do it.

Mom and Dad agree that the Order will be “modified.”  They switch to a week-on, week-off custody arrangement.  The kids are older, it works.  Dad starts paying support directly for the benefit of the kids. He pays for the child’s car and insurance, and picks up health insurance which was previously mom’s responsibility. Dad does not pay mom directly. It’s about the same money, probably.  What could go wrong?  A lot of things!

Court Orders may only be modified by other Court Orders.  Once an Order is issued and in place the parties are bound to follow it.  This is so ironclad  that the Court has a mechanism in place to enforce its Orders that can result in the breaching party having to pay fines and/or go to jail. This process is called Contempt.  If you are not following the Order in your case, you are subject to a contempt petition being filed by the other party.

But if we agreed what’s the big deal?  The deal is that Agreement is not worth the paper its written on if it is not approved by the Judge.  At some point in the future, and it never fails, Mom and Dad have a falling out, again.  Mom goes to attorney and tells him that Dad has not paid child support in two years.  Mom sues  Dad for Contempt for all of the “back” support and then “un-agrees” to the custody change and goes back to an every other weekend schedule for visitation.   Dad counter sues for a custody modification seeking custody now due to mom’s change and contempt over the health insurance issue.  The only sure thing now is that each has considerable contempt for the other and the Court is left to sort it out.**

Dad scrambles to get his “proof” that he paid the car and insurance, but that is not what was ordered.  Mom tries to justify her position on the visitation retread because that is what the papers said, as if her hands are tied now and the “papers” know best.  Had they done an Agreed Order and had it approved by the Court, they could have accomplished the same thing and not left the door open for future problems of having the old Order used against them.  Both would have been protected and still had the same “teeth” in enforcing their Agreement it would have just been enforcement of their new Agreement.  Now both have risk and have conducted, at least, actionable non-compliance with the Court order.

If you modify your Order/Agreement do it in writing, signed and approved by the Court. It’s the only way to guaranty that the Agreement is enforceable and for protection from being subject to Contempt for not doing what was in the prior Order.

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Child Custody, Child Support, Opinion

Dads Have Rights Too!

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(I recently spoke to a group of fathers, and a few others, about a Father’s Rights in a custody action. I also had a request, this week, from an online fan about blogging specifically about Father’s Rights. I agreed to do it, but these “Rights” apply to parents regardless of gender.)

Dads Have Rights Too!

One of the most frustrating things in my practice is a father who says he wants rights to his children but is unwilling to put his money where his mouth is, figuratively and literally.  Those dads want the “fun” parts of the job and to spend time with the children, but do not want to do the “work” and do not want to pay child support or think whatever they are paying is enough. So first things first, pay your support, pay it on time and pay it every time. And when the need arises pay for something extra. With the support issue out of the way, in an initial custody determination, be it a divorce situation or a paternity/custody matter, mom and dad are on a level playing field.  Yes, equal.  Equal at least as far as the facts support that statement.

Great Dad

 

In a divorce situation or a paternity/custody matter, mom and dad are on a level playing field.  Yes, equal.  Equal at least as far as the facts support that statement.

 

 

The Court must conduct what is called an Albright Analysis (blogged about earlier, click here).  This analysis looks at a number of factors including, the continuity of care* or who has been doing what for the child up to that point where you find yourself in Court, and what is in the best interest of the child. (*in initial determinations this is the biggest factor, barring extraordinary circumstances).

If you are dad and 1) have been doing the bulk of the child care, 2) are a good, 3) safe, and 4) active parent there is no genuine threat to you in a custody battle because of your gender.  However, if mom has been doing the 1) day to day care, 2) taking to and from school and3)  the doctor and 4) soccer and 5) everything else, and you, as dad, spend time with the children on the weekends when you are not at work – just because mom gets custody does not mean the system was fixed and the mom always wins.

Now the law does recognize a term called the tender years doctrine – which states a very young child should be with the mother, unless there is a compelling reason why the child should not, ie: mom is unfit- meaning a danger to the child.  Sometimes if your child is very young and mom has the controls you just have to bide your time.  The tender years ends between 2-3 years of age, with no definite, exact age.

But dads can and do get custody if the facts are there to support that outcome.

The other big peeve is dads that do not exercise their visitation.  There is common acceptance out there that standard visitation is every other weekend (EOW), Friday to Sunday, Wednesday afternoons when you don’t have the weekend, alternating major holidays and 4-5 weeks in the summer.  And some dad’s don’t take advantage of it.  I call “standard visitation” a misnomer because there is technically no such thing as “standard visitation,” though that is in fact what is quite often ordered and/or agreed to.

But there is also a trend, over the last several years, where dads are getting more time, if they want it and meet a few other requirements.  If dad has been an involved dad, wants more time and the parties live in the same community that EOW can be expanded to Friday to Monday or Thursday to Monday of every other weekend.  Research shows that dad being responsible for a school night results in the kids doing better. It also makes dad responsible for time that is not all “Fun” time AND it puts most of the pick-up and drop-offs at school, which means less of a chance of an altercation with mom.  Dads can be more than every other weekend dads if they are willing to do it.

Go to their ballgames, school programs, and dance recitals.  Know who their teachers are and doctors.  Don’t rely on mom for all of that and be mad when she does not give it to you.  Get it yourself.  How?  Go to the school. Call the Dr.’s office. Mississippi law provides  a means for you to have the right to those records.  MCA Section. 93-5-26. (click here).

Finally, don’t be intimidated by mom and her lawyer. Hire a lawyer. (Don’t say you can’t afford one, you cannot afford to NOT have an attorney).  Mom and her attorney will not run you over unless your conduct provides them the truck to do it. And if your conduct does provide that truck, STOP.  Act right. Do it for your children and yourself.

Child Support

21 (And We’re Not Talking About BlackJack) Age of Majority – Emancipation

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The age of majority in Mississippi is 21.  That means you pay child support and provide benefits for your child until he or she attains the age of 21.  It is NOT 18.  While your child may think he or she is grown at age 18, the state of Mississippi says otherwise. MCA 93-11-65.  The age of majority is also synonymous with emancipation, though a child may be judicially emancipated prior to 21.

So you are paying until 21, but there are exceptions.

Emancipation is a process of having the child “declared” an adult  shall occur upon the child;

  • Marrying
  • Joining the military and serves on a full-time basis
  • Is convicted of a felony and is sentenced to incarceration of two (2) or more years for committing such felony

Other forms of Emancipation include Court-Ordered Emancipation when your child;

  • Discontinues full-time enrollment in school having attained the age of eighteen (18) years, unless the child is disabled
  • Voluntarily moves from the home of the custodial parent or guardian, and establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors prior to attaining the age of twenty-one (21)
  • Cohabits with another person without the approval of the parent obligated to pay support; cohabits generally means living together as if husband and wife.

Mississippi has lower rates, meaning amounts of child support, when compared with other states nationally, however, Mississippi makes up for it by extending payments to 21 in most instances.

Click here for Mississippi Child Support Rates

Pay your child support and pay it on time.

Matthew Thompson is a family law attorney that files Contempt actions against persons that are not paying their Child Support.  Don’t be one of those persons!   Trust the Bow Tie.

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.

Child Support

Child Support; What you Owe?

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Mississippi Code Section § 43-19-101 specifically details the Child Support Award guidelines.

Number Of Children              Percentage Of Adjusted Gross Income   
1                                                             14%
2                                                            20%
3                                                            22%
4                                                            24%
5 or more                                        26%

Basically you take your gross income for the year and subtract state and federal taxes, and mandatory deductions.  This leaves you with your adjusted gross income. Divide this amount by 12.  This equals your monthly adjusted gross income.  Multiply this number by the appropriate percentage and that is the amount of child support you owe.  For example. Let’s say that you make $3,250 per month, gross. First, deduct state and federal taxes, Social Security and Medicare. (State $125, Federal $200, Soc Sec. $180, Medicare $47 = $552.00 in deductions.) $3,250.00 – 552.00= $2,698.00.  Multiply this by 14%.  $2,698.00 x .14= $377.72  Your monthly obligation is $380 in child support.

Below is the paraphrased statute and includes more detailed information for child support calculations.
The amount of “adjusted gross income” as that term is used in subsection (1) of this section shall be calculated as follows:
  1)  Determine gross income. 

What is counted towards “gross income” income for child support purposes?

  • wages and salary income;
  • income from self employment;
  • income from commissions;
  • income from investments, including dividends, interest income and income on any trust account or property;
  • absent parent’s portion of any joint income of both parents;
  • workers’ compensation, disability, unemployment, annuity and retirement benefits, including an individual retirement account (IRA);
  • any other payments made by any person, private entity, federal or state government or any unit of local government;
  • alimony;
  • any income earned from an interest in or from inherited property;
  • any other form of earned income; and
  • (Not to be Counted) However, gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse;

2) Subtract the following legally mandated deductions:

  • Federal, state and local taxes;
  • Social security contributions;
  • Retirement and disability contributions (except any voluntary retirement and disability contributions* and most are voluntary*);
  • If the absent parent is subject to an existing court order for another child or children, subtract the amount of that court-ordered support;
  •  If the absent parent is also the parent of another child or other children residing with him, then the court may subtract an amount that it deems appropriate to account for the needs of said child or children;

3) Compute the total annual amount of adjusted gross income based on the above,

4) Divide this amount by twelve (12) to obtain the monthly amount of adjusted gross income.

5)  Multiply the monthly amount of adjusted gross income by the appropriate percentage

**The statute applies in cases in which the adjusted gross income as defined in this section is more than  One Hundred Thousand Dollars ($ 100,000.00) or less than Ten Thousand Dollars ($ 10,000.00), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.** (The figures above were changed by the MS legislature in the 2013 session from $5k-$50k, the above figures are the current amounts)

What else is included over and above child support?

6) All orders involving support of minor children, as a matter of law, shall include reasonable medical support. Notice to the obligated parent’s employer that medical support has been ordered shall be on a form as prescribed by the Department of Human Services. In any case in which the support of any child is involved, the court shall make the following findings either on the record or in the judgment:

(a) The availability to all parties of health insurance coverage for the child(ren);
(b) The cost of health insurance coverage to all parties.

The court shall then make appropriate provisions in the judgment for the provision of health insurance coverage for the child(ren) in the manner that is in the best interests of the child(ren). If the court requires the custodial parent to obtain the coverage then its cost shall be taken into account in establishing the child support award. If the court determines that health insurance coverage is not available to any party or that it is not available to either party at a cost that is reasonable as compared to the income of the parties, then the court shall make specific findings as to such either on the record or in the judgment. In that event, the court shall make appropriate provisions in the judgment for the payment of medical expenses of the child(ren) in the absence of health insurance coverage.

Matthew Thompson is a family law attorney in Mississippi and encourages you to have an attorney review your support obligations annually.

Follow the blog: BowTieLawyer 

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

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