Category Archives: Divorce

Divorce, General Legal, Marriage, Opinion

Ringing In Valentine’s Day; Who gets the Ring when things go Wrong?

02/14/2013 BowTieLawyer Leave a comment

Valentine’s Day is one of the most popular days to get engaged! Along with Christmas and New Years, Valentine’s Day is the holiday for popping the question. But who gets the RING if things don’t pan out?

In Mississippi, the ring is a pre-marriage gift. It can be argued that the ring is actually a conditional gift creating a contractual obligation. How Romantic!

Here’s the scenario. An offer of marriage is proposed and a ring given in exchange for a “Yes,” being an agreement to marry. So long as both parties uphold their end; the fellow gives the ring and the lady marries the fellow = offer + acceptance & valuable consideration. At this point the contract is fulfilled and the rings is now the property of the lady. But what if they were only married for a minute? Well, if they married the contract is fulfilled. Certainly, there could be exceptions due to fraud or overreaching, but these are not typical.

The chancellor properly concluded that the engagement ring was a gift from [the fellow] to [the lady]. That gift necessarily predated the marriage of the parties. Thus, it was an asset brought by [the lady] into the marriage and was not a marital asset subject to equitable division. MacDonald v. MacDonald, 698 So.2d 1079 (¶ 13) (Miss.1997). It was, therefore, beyond the chancellor’s authority to order [the lady] to return possession of that item to [the fellow] and the refusal to do so cannot constitute reversible error on appeal. Neville v. Neville, 734 So.2d 352 (Ms.App. 1997).

Want to be safe, legally speaking anyway? Then make your marriage proposal contingent, as follows*:

“Dearest One,

I love you and desire to marry you. As a symbol of same, I am making a wholly contingent offer to you of this ring, of significant monetary and sentimental value, but a likewise sizable lien against same, in exchange for your promise to marry me. In the event that we do NOT get married, then said ring shall be returned to me in the same condition as presented, or alternatively you may elect to assume said lien, in full, for said ring and shall indemnify and defend me from any liability thereon. ‘Will you accept this rose?'” *(a paraphrase of colleague J. Kitchens)

Matthew Thompson is a family law attorney that you can engage in the event you need a divorce, and if you use the above contingent marriage proposal, you just might!

Bow Tie, Child Custody, Divorce, General Legal, Opinion

5 More Family Law FaceBook Don’ts

02/12/2013 BowTieLawyer 6 Comments

I previously blogged on 5 Family Law FaceBook Don’ts. This was a very popular blog topic and continues to generate a lot of traffic. This post lists 5 more things you should not be doing on FaceBook with regards to your family law case.

Posting inappropriate stuff on FB is not just an American thing. 1/5 of Australian divorces use FB postings to discredit some testimony that was offered by one party and FB activities are showing up in about 1/3 of United Kingdom divorce cases. Familyandthelaw.com.au

5 More Things not to Put on FaceBook:

Don’t post Pictures of the other party, whether they be flattering or not.
Don’t post Pictures of the children doing activities with captions that note the other parent’s absence.
Don’t post Pictures of your new squeeze in a “Parenting Role” that is intended to inflame the other side.
Don’t comment on your friend’s drama and “one-up” them with your own.
Don’t allow your FB friends to bash your Ex.

Stay tuned for more FaceBook don’ts, as I have enough material to make this one a series and unfortunately am learning of new things not to do on an almost daily basis.

Matthew Thompson is a family law attorney in Mississippi that strives to not put inappropriate things on FB and thinks you should too! #Trust the Bow Tie.

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Child Custody, Divorce

Guardian Ad Litems – Representing Children in Court

02/08/2013 BowTieLawyer 4 Comments

The Judge’s job in a custody/divorce case is to determine the best interests of the children when mom and dad are fighting. The Judge considers mom’s testimony and evidence as well as dad’s and even the children’s testimony (clickable). But there is also another implement in the tool box of information available to the Court, the Guardian Ad Litem (GAL).

A GAL is a person, usually a lawyer, appointed by the Court to take on one of two roles.

1) The first of these is to be an Attorney for the Children. To represent the child in the same capacity any attorney would represent a client, with the same duties, obligations and confidences that every attorney owes to each client. This role is fairly uncommon in custody/divorce actions.

2) The much more common role is that of Investigator for the Court. Judge’s routinely appoint an attorney to serve as the Court’s eyes and ears on the ground. Judge’s are limited to what they can hear.

They are limited by time constraints, objections, admissibility issues, and lawyer’s abilities. A GAL appointed by the Court as an Investigator has much more readily available access to information.

GALs interview mom, dad and the children.
They can interview teachers, doctors, counselors, friends, and coaches.
They can practically speak to anyone they think they need to.
A GAL can inspect the home where the children stay and can do so unannounced.
GALs can pay surprise visits.
GALs can access school records, medical records, counseling records.
GALs can request medical evaluations and even psychological evaluations.
GALs, by and large, can do what is necessary to get to the bottom of the issues in a case.

So why does every case NOT have a GAL?

1) They are only required in abuse/neglect cases, otherwise it is discretionary. The Court may not allow for a GAL.

2) It adds another layer of expense, another attorney to pay. The Court usually makes both parties pay.

3) It can create delay. The GAL may ask for more time to conduct the investigation and scheduling trial depends on another lawyer’s calendar.

4) The GAL may not believe you. They are human and may believe the other parent over you, plus you may be lying to them. It adds risk.

5) They may not do a good job.

GALs typically prepare a report that is provided to the Court and both lawyers. It recounts their efforts, interviews, documents reviewed and conclusions drawn. The GAL report also includes recommendations, usually. The Court is not required to follow the GAL recommendation.

Guardian Ad Litems can be a critically important tool available to the Court or parties in a contested custody battle, but the involvement of a GAL also has risks and expenses associated too. Talk to your lawyer if you have concerns about abuse/neglect and whether a GAL may help in your case.

Matthew Thompson is a family law attorney that has served as a GAL and has handled numerous cases involving GALs. He has seen the good, the bad and the ugly. He also conducts GAL training sessions at Continuing Legal Education Seminars for lawyers that want o become certified GALs; topics include conducting GAL Custody Evaluations, GAL Investigations, GAL Reports and Testifying.

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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.

Appeal, Divorce, General Legal

How Appealing!

02/06/2013 BowTieLawyer 3 Comments

Appeals are a necessary evil in Family Law. The following is a brief description of appealing Chancery Court matters, that is, family law cases.

An appeal is a request that a higher Court review the decision of the lower Court. A lot of family law decisions are appealed, though very few are successful or result in a significant change.

A decision is appealable if it is a Final Order. A Final Order is one which decides all of the then pending issues and leaves nothing more for the Court to decide. A Temporary Order (clickable), for example, is not appealable. It is not a Final Order, though it could be subject to modification in certain exigent circumstances.

A Final Order, rather, is your Final Judgment of Divorce or other similar document. It decides on a permanent basis the outcome of your case.

How do you appeal it? In Chancery Court there are several options available. The first is filing what is called a Motion for New Trial*. This is filed in the same Court and must be filed within 10 days of the entry of the Final Order. This goes back in front of the same judge and is not merely a chance for a “second bite at the apple,” but rather is to point out significant errors of fact and/or law upon which the Judge relied, which resulted in the wrong decision. These are routinely denied. They are denied for several reasons and primarily because the Judge just decided the case and also because it requires the Court to “admit” to making a mistake. Usually the case is fresh on the Judge’s mind and the Judge felt that he or she did not make a mistake. I have seen these most commonly granted when there is a mathematical error; the child support was calculated wrong or the asset division contained a significant computation error. If the “error” is not something obvious these have a very low probability of success. (*There has been some debate over whether a Motion for New Trial is required to perfect an appeal. The most recent answer is that it is not required in family law matters, however it is a good idea to file one out of an abundance of caution. Please rely upon your attorney for making this decision.)

After the Motion for New Trial is denied you may file a Notice of Appeal. This is filed, again, with the Chancery Court and must be filed within 30 days of either the Final Judgment, or within 30 days of the ruling on the Motion for New Trial, whichever is later.

All appeals are sent to the Mississippi Supreme Court (MSSC). From there the MSSC gets to decide if they keep the case or assign it to the Court of Appeals (COA). The majority of the Family Law cases are assigned to the COA.

The Appeal process is deadline heavy. There are deadlines to file the appeal, to pay an estimate of preparing the transcript, to designate the record. After which, a briefing schedule is issued. The one appealing, the Appellant, has 40 days to file their brief and can get multiple extensions of 30, 20, and 10 days. The Appellee, the one responding to the appeal, then has 30 days to reply and can get extensions of 30, 20, and 10 days. The Appellant can then file a reply brief within 14 days, with up to one extension of 30 days. After all the briefs are submitted the Court may allow Oral Argument, if it is a case of first impression or complex, and the Court may not. Once the briefs are submitted the Court has 270 days to rule. They rule in a written Opinion that is handed down on either Tuesdays or Thursdays after 1:00 pm.

Even if you “win” you may not. Usually appeals are denied. When they are granted it usually results in the matter being remanded to the lower Court with instructions for the Judge to redo a certain part or reconsider certain facts or law. It does not guaranty a change in the outcome and you may end up back in front of the same Judge that ruled against you.

Appeals are long, costly, and even if you “win,” you may not “win.” Consult with an attorney experienced in handling appeals if you think there were significant errors made in your case.

Matthew Thompson is a family law attorney that has been involved in about 20 appeals.

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Divorce, General Legal, Modifications

Latin Lessons; Res Judicata

02/05/2013 BowTieLawyer Leave a comment

Today’s blog is about one of those Latin terms that lawyers and judges say and no one else really knows what it means, until today.

Res judicata, pronounced (Race Jude-ih-kah-tah), means the thing that has been decided or a matter already judged. It is usually used as a legal defense to a suit, wherein the Defendant, the person being sued, raises the defense and argues the Plaintiff, the person suing, cannot get the relief they are seeking because they previously sought and were granted relief, or previously sought and were denied relief or previously sought relief and should have included that claim at that time.

By way of example, this scenario may better explain Res judicata;

Mary sues Jim for divorce. As a part of the divorce Mary seeks the house and equitable distribution of the property, a fair division of the stuff. However, Mary does not seek alimony. The case is either settled or decided by the Chancellor. All issues raised by Mary are resolved. Upon settlement, or the Court’s ruling becoming final, the matter is closed. Mary then realizes her mistake and seeks alimony, either through a new action or through a modification. However, it is too late. That issue is Res judicata, even if Mary should have received alimony, even if the Court would have awarded it. It is barred because Mary could have brought it at the time of the divorce and should have, but did not for whatever reason.

It is important for parties involved in legal proceedings to know what their attorney is talking about and what those terms mean, some of them can really matter.

Matthew Thompson is a family law attorney that knows some Latin terms and does not mind explaining them to his clients, even 2 or 3 times. Trust the Bow Tie.

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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.

Child Custody, Divorce, Pets

Super Bowl Sunday; Super Strange Custody Fight

02/03/2013 BowTieLawyer Leave a comment

With the Super Bowl imminent it reminded me of a case I was involved in where there was a serious custody battle. The fight was not over the children, nor the house or the retirement accounts. The fight was over SEC Season Football Tickets! (certainly worth fighting for)

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The tickets were secured by one party who had been getting them for years, but were actually paid for by the other party. So, both felt they had a legitimate claim, additionally both genuinely wanted the tickets. It was not posturing by the wife to get a better deal or more support.

The solution? Joint custody.

Each picked certain games that they would attend each year and on the ones that both wanted to attend they agreed to alternate even years and odd years to determine who got to go. Another interesting aside was that there were 2 tickets for each game. Who the guest would be was also an issue, as they obviously would not both go at the same time! Neither wanted the other to be able to take a bf/gf. The compromise was that the other ticket would be used by a family member, or a minor friend of the children. (Minor meaning under 21, not just small). The custody of the season tickets was one of the last issues to get resolved. It really did matter.

Matthew Thompson is a family law attorney that will handle your custody case, whether it be over Children, the House, Accounts, SEC Season Football Tickets or the Dog! Trust the Bow Tie.

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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, General Legal, Opinion

Keeping Quiet; Family Law’s Most Difficult Challenge

01/28/2013 BowTieLawyer 3 Comments

Loose lips sink ships, less is more, mind your business, and be nice or at least indifferent. All good advice, given everyday and routinely ignored.

Coping with litigation, especially family law litigation, is tough. “Venting” is common and can be therapeutic,(click here for dealing with stress) but be careful who you vent to. If it is done to the wrong person it will come back to bite you. But…you say, “I am only telling the truth.”

The truth is if your cheating spouse loses his job everyone is worse off. The truth is if your spouse, who is a sorry parent because they are more interested in going to the Electric Cowboy, is vilified in front of the children it will be harmful to them. (They will know in time. An exception may be made if the parent’s sorriness affects the children’s actual safety).

Also, telling people your business does not bode well for reconciliation. Telling your “friend that has been through this” what a crummy guy he is, how sorry he is, and how abusive he is, means you and that “friend that has been through this” will NOT be friends when you and Mr. Sorry get back together. I know what you are thinking, “No chance in hell of that,” but stranger things have happened…

So who can you vent to?

Your Lawyer. We are paid to listen, counsel and advise…though we all have our limits.
Your Counselor. It’s their job, too. They listen, do not judge and can offer coping mechanisms. Don’t have a counselor? Ask your lawyer.
Your Preacher. They have heard it before and are very familiar with Sodom and Gomorrah and fire and brimstone. Your situation is probably not that bad.
Your Momma. I don’t mean this in the slang sense. Really, speaking with a parent, or other trusted adult, can help, even if you are a grown-up, yourself. Just be careful because what you say to a lay person is not protected by attorney-client privilege, doctor-patient privilege, nor priest-penitent privilege. (I have less concern about you telling your mom how sorry he is because deep down mom always “knew” it).
Your Friend that has been through it. This can be a great resource of knowing what to expect and leaning on a sympathetic ear. Be careful here, too, as there is no privilege and she could be playing both sides, and reconciliation means y’all likely won’t be friends.

Be sure you let your attorney know who you are talking to. They need to know. They may have represented that friend, or otherwise been involved in that case, and may have some insight as to whether you should be talking to that person.

Matthew Thompson is a family law attorney that knows how to keep quiet about your business. Confidentiality and privilege are two things taken very seriously at TLF.

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Child Custody, Divorce, General Legal

Secret Spy (Hiring a Private Eye)

01/25/2013 BowTieLawyer 1 Comment

One of the perks of being a divorce attorney is you get to be acquainted with a number of other people who have really cool jobs. This post is about Private Investigators (PIs), when to use them and what they need from you.

I have previously posted of some of the potential warning signs of an affair. (click here) If you have suspicions that your spouse may be having an affair it may be wise to hire a PI. A PI can follow your spouse, take pictures, document their whereabouts and identify third persons that your spouse may be with. In addition to adultery situations, PIs may also be useful in locating hard-to-find persons/witnesses and even completing service of process. A PI can also play a role in custody cases in documenting the other parent’s living conditions, if a third-party is sleeping over and the other parent’s comings and goings.

PIs have come a long way from hiding in the bushes snapping pictures, though it still happens. There are hi-tech means of surveillance, GPS tracking abilities and computer forensics which can discover that nothing is truly deleted!

Here’s a starter list to provide a PI in the event you choose to hire one.

Pictures of who they are to follow.
Pictures and tag # of the car(s) they are to follow.
Where that person works and normal office hours.
Where that person hangs out, works out and/or chills out.
The usual routine; ie: on Wednesdays he always goes to Buffalo Wild Wings.
Address of the home and anywhere else the person may be staying.
List of suspected paramour(s).
Any and all information you have about paramour(s).
Your usual routine, too. Knowing this the PI may be able to catch you-know-who where they should not be when you are at the Wednesday evening service.

Talk to the PI about fees. These are not covered in attorney fees. PIs usually charge a retainer and bill by the hour and for mileage. Be careful about having your spouse followed to New Orleans, it may not be worth it if you don’t get the goods. Also, make sure the PI generates a report, pictures and will testify in Court, if necessary.

The use of a PI is discoverable in litigation, which means if you use one and are asked about it you will have to disclose it. Stay tuned for a blog about what to do if you think you are being followed.

Matthew Thompson is a family law attorney that leaves the private investigation to the PIs, but does review the pictures and videos from the investigations, as it is required by his job!

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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.