Category Archives: Divorce

Trial by AMBUSH!

04/26/2013 BowTieLawyer 1 Comment

One of the Court’s most important roles is to prevent Trial by Ambush. Those episodes of Matlock where the secret witness or the real murderer are called to the stand at the last-minute and nobody knew, except for Ben, may make for good TV (or not), but it is not how it really is.

Courts and the Rules of Procedure require full disclosure. All witnesses must be disclosed prior to trial, all evidence, exhibits, and even persons who may not be witnesses, but that know about the case should be disclosed. While it is not uncommon to receive documents or learn of witnesses at the last-minute, the Court may prevent those from being used.

Rule 26 of the Mississippi Rules of Civil Procedure governs the procedures that litigants must follow regarding discovery methods. 26(f) obligates a party to “seasonably” supplement that party’s responses to interrogatories and other discovery if the parties know the answer has changed or circumstances are such that a failure to amend is in substance a knowing concealment. M.R.C.P. 26(f)(2).

A failure to seasonably supplement responses may prevent this “new” evidence from being used. If a party was specifically asked for the documents and tangible things they intended to use at trial, and new information was not produced, the Court can prevent this Trial by Ambush.

A Court’s most basic duty is to provide for a fair trial and to prevent trial by ambush. “We have long been committed to the proposition that trial by ambush should be abolished, the experienced lawyer’s nostalgia to the contrary notwithstanding.” Harris v. General Host Corp., 503 So. 2d 795, 796 (Miss. 1986).

These surprises leave no meaningful opportunity to challenge them or to investigate the information they purport to contain and summarize.

Matthew Thompson is a family law attorney in Mississippi and warns client that if you got it and intend to use it, you got to disclose it.

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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, Property Division

Your Granddad’s Clothes

04/25/2013 BowTieLawyer 1 Comment

The Family Use Doctrine.
Under the “family use doctrine,” any separate property, owned by one party, but used extensively by a family is converted to a marital asset. See Stewart v. Stewart, 864 So.2d 934 (Miss. 2003); Hankins v. Hankins, 866 So.2d 508, 511-512 (Miss. Ct. App. 2004). This means that your granddad’s clothes, or more importantly that Destin beach house you inherited, while initially separate property, can lose its separate status and be considered a marital asset by the Court.

How does this happen? By showing “Proof of family use.“

For instance, if the parties were married on the beach in front of the beach house and honeymooned there. The parties both testified that they frequently stayed in the beach house and both parties’ family used the beach house throughout the marriage. The parties used the home on holidays; including Easters, Thanksgivings, Christmas, Birthdays and as a getaway.

Both parties made Contributions to the care and upkeep of the beach house during the marriage:

The spouse made considerable efforts and contributions to the beach house. She designed, picked out and arranged the majority of the furnishings and decor of this home. She helped in the maintenance and upkeep of this home by cleaning, cooking, vacuuming, mopping, doing dishes, laundry and the like. She and her family performed maintenance on the home, including lawn maintenance and general repair. The husband also contributed to this home financially from joint accounts, in kind by his efforts during the marriage and he also otherwise cared for the property.

The Court can find that the beach house has lost its separate status due to family use and is a marital asset subject to equitable distribution.

So, just know that gifts, inheritance and otherwise separate assets, owned only by one party before the marriage, MAY lose their separate status if they are used throughout the marriage.

Matthew Thompson is a family law attorney in Mississippi and recommends that if you intend that your Granddad’s clothes, or beach house, not be subject to division by the Court in a divorce, either get a pre-nup or don’t use it. Tough advice, I know…

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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, Property Division

Taxing Divorce Issues

04/24/2013 BowTieLawyer 1 Comment

Tax consequences must be considered when the Court determines Equitable Distribution, along with other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;

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).

Tax Consequences.

Typically division of real property and even personal property can be had without tax consequences to the parties. One party can buy the other out of the house and get the furniture without arousing Uncle Sam. However, certain transactions can create significant tax consequences. Usually investment/retirement accounts may be transferred without tax liability, but there is a catch. The receiving party must roll the monies over into a qualified account and not access same to avoid taxes and penalties. If the receiving party will need the monies to live, then they better make sure the Court is aware of the tax consequences for using those monies. (Alimony may also have tax consequences.)

Other economic consequences;

Other economic consequences can include the nature of the asset. Is it something that can be used and liquidated like an account or is it something that cannot be easily turned into cash, like a house or a collection of 17th French dishware? The Court may determine the type of assets. Also, some assets produce income or returns and some assets may decrease in value or require considerable upkeep expenses like an Arabian Horse.

Make sure you have discussed the type and nature of the assets that the Court is being asked to divide and be sure to consider the tax and long-term considerations regarding the asset(s).

Matthew Thompson is a family law attorney in Mississippi and recommends you pass on getting the Arabian Horse, as it will eat you out of house and home.

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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, Property Division

Nice Assets!

04/19/2013 BowTieLawyer 2 Comments

Two more factors considered in Equitable Distribution are the Value of the Marital Assets, as well as the Value of Separate Assets.

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).

The market value and the emotional value of the assets subject to distribution.

Market value most commonly refers to “Fair Market Value” or the value a willing buyer, under no compulsion to buy, would pay a willing seller. Assets subject to distribution means any and all assets accumulated during the course of the marriage due to the efforts of the parties.

For accounts and investments it is typically the value of those investments. Your savings account has $7,650.00 in it = it’s worth $7,650.00. Your home’s value would normally be determined by an appraisal. There is also a fair amount of nuance that comes into play when determining the FMV of assets and the parties and their hired professionals can disagree on values. Additionally, not everything is valued using FMV. A business owned by a party in a divorce is valued using a “Net Asset” based approach, but that is an “exciting” blog for another day!

Emotional value or sentimental value is an intangible value or one that cannot be easily assessed. Having made all of those disclaimers, the court considers emotional value when determining who gets what and if you really, really want that Hoosier cabinet you will probably get it, but she may end up with an offset for a portion of the value of the Hoosier.

The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, 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;

Assets not ordinarily subject to equitable distribution are the non-marital assets. These include assets acquired by inheritance, by gift (inter vivos just means a gift while living, as opposed to a gift via a will) or by efforts prior to the marriage. So while these assets may very well be separate, the value is still relevant for divorce purposes. Separate estate plays a role in dividing the assets and it also plays a role in the Court’s determination of alimony. A significant separate estate may result in you getting less out of the marriage than someone similarly situated with no separate estate, but it’s still a good problem to have.

Matthew Thompson is a family law attorney in Mississippi and recommends you have your property appraised.

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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, Marriage, Opinion

Purple Panty Pull-downs

04/17/2013 BowTieLawyer Leave a comment

Gotcha! Purple Panty Pull-downs, (a.k.a. Hunch Punch, Whoop Juice) is a college party drink of too much alcohol, kool-aid, sprite, and ice. It can lead to poor judgment, hangovers, injuries, arrests and other sordid outcomes. However it tastes good! When mixed right it is cold, sweet and easily drinkable. It “feels” safe. You cannot fully appreciate the danger.

Similarly, threats to your marriage can seem sweet. Contacting an old friend, meeting a business colleague for drinks or meeting someone new at an event and hitting it off. These interactions are new, exciting, fun and “feel” safe. But be careful.

A non-scientific poll conducted on Facebook by colleague and friend, Craig Robertson, revealed common places and common themes in affairs. Affairs typically do not happen with strangers. They are persons that we know. Persons from work, from our past, friends of the family and church – yes, Church! It happens. It’s the people you see at the grocery and the coffee shop and your kid’s friend’s parents.

So, should you be a recluse, a shut-in and avoid all other human interaction? No. Just be aware of your surroundings. Act intentionally.

When you see the cooler full of Purple Panty Pull-downs, Watch Out!

Matthew Thompson is a family law attorney and in the words of Sir Winston Churchill, “The water was not fit to drink. To make it palatable, we had to add whisky. By diligent effort, I learnt to like it.” But don’t lose your wits about you.

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