Category Archives: divorce

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.

alienation, Crime, divorce, General Legal

Criminal Conversation (Just Sex)

03/29/2013 BowTieLawyer 1 Comment

Criminal Conversation is likely the most misleading term you will hear or read today. Criminal conversation, briefly mentioned in this prior blog on Alienation of Affection, is today’s topic.

Criminal Conversation is an act of adultery between a person and the spouse of another. This tort, meaning a civil wrong, commonly arises in Alienation of Affection situations, but differs greatly from AOA. Alienation allows a wronged spouse to sue the “significant other” of the guilty spouse for the breakdown of the marriage. It requires proof of 3 elements; 1) Wrongful Conduct, 2) loss of affections, and 3) a causal connection.

In Criminal Conversation if you have sex with a married person, who is not your spouse, you are guilty. There is no defense to the tort of criminal conversation.

Consent of the wife is no defense. The fact that the wrongdoer did not know the wife was married, but believed her to be single is not a defense. The fact that the wife represented herself as single is not a defense. The fact that the wife was the aggressor is not a defense. The fact that she has been neglected or mistreated by her husband is not a defense. The fact that she and her husband were separated through his fault is no defense.

Criminal Conversation has been hailed as “notorious for affording a fertile field for blackmail and extortion” and action may be brought “not for the purpose of preserving the marital relationship, but rather for purely mercenary or vindictive motives.”Kline v. Ansell, 287 Md. 585, 414 A.2d 929, at 931. (1980). Courts have found that this tort is “incompatible with today’s sense of fairness” because there are no defenses to a cause of action. Id.

Several arguments have been advanced for the abolition of it, including;

(1) a woman is no longer the property of her husband;
(2) the tort has no deterrent effect;
(3) a cause of action may be brought for vindictive purposes;
(4) the potential for abuse is great;
(5) the tort is devoid of any defenses; and
(6) determining damages, meaning money, is difficult.

So now that you are sweating about this, rest easy. Criminal Conversation was abolished by the MS Supreme Court in 1992 in the case of Saunders v. Alford, 607 So.2d 1214 (Miss. 1992). Alienation of Affection, however, is alive and well.

Matthew Thompson is a family law attorney in Mississippi. If you need to have a conversation with a lawyer about family law you know who to call.

divorce, General Legal, Opinion

Bad Advice = Bad Lawyer?

03/20/2013 BowTieLawyer 6 Comments

As a practicing attorney you are always learning from each case, each client, each Court appearance, and dealings with opposing counsel. Through all of this, there are memorable lessons learned and some you wish you had not.

Some memorable milestones are your first Court appearance, your first argument before the Court and the first satisfied client. I recently experienced a “milestone” that I wanted to share.

I was involved in a case where I “knew” who the other attorney was before he was “hired.” I knew based solely on the conduct of his client; destroying property, taking things that did not belong to him, damaging other property, having a poor attitude and ignoring attempts to communicate amicably and to resolve the outstanding issues without things escalating. I have this theory that clients tend to seek out and hire attorneys that are similar to themselves. Now, obviously this is not always true and too broad a generalization to make, but fitting for this instance. In any event, this other party decided to do some bad things.

As soon as I heard of the destruction, I said “I know who his attorney is.” It was not a good feeling. I was not proud of myself. I was disappointed that due to this conduct that I “knew” who he hired. This conduct and this advice is exactly why people hate attorneys and think we are lower than low.

So what did I do about it? Well, I tried to do the best I could. Set it for hearing and let the Judge have a say. The client may or may not have broken the law, but that didn’t make it right.

This milestone, unfortunately memorable, of knowing who the other attorney is by offensive conduct of his client actually reminded me that I do not ever want another attorney to “know” that I am involved in a case based upon offensive conduct of my client. Want to share to some war stories? Leave a comment or send an email, maybe I’ll blog about it.

Matthew Thompson is a Family Law attorney and strives to do what is right and is now getting off of his soapbox.

divorce, General Legal, Marriage, Opinion

Churchill Wisdom; On Advice

03/14/2013 BowTieLawyer 2 Comments

-Winston Churchill

Following your attorney’s advice can be one of the more difficult aspects of divorce work, but you must. I have previously blogged on How to Hire an attorney, Keeping Quiet when necessary, Annoying Client Traits, and Coping with the Stress of a family law matter. One important and common theme to all of these is to listen and take the advice you are given. It is no guaranty of a perfect case, but it increases the potential for a satisfactory result. (So long as the person giving the advice knows what they are talking about.)

Matthew Thompson is a Family Law attorney and is good at telling people what to do.

Child Custody, divorce, General Legal, Visitation

Want a Happy Birthday?! Don’t Forget this “Holiday.”

03/12/2013 BowTieLawyer 1 Comment

Happy Birthday! is something we all look forward to sharing with our children. But, is this day saved in your Divorce Agreement?

Bday 2 — Happy Birthday/ BowTiePublishing

I have previously blogged on the “forgotten holidays” (Halloween, labor day) and visitation schedules. Birthdays are also often overlooked at times of divorce. A Court’s standard visitation does not include, specifically, children’s birthdays so it is up to you, as an attorney or client, to remember the dates that matter.

In most of my Agreements the child’s birthday is specifically considered. The following is an example.

Some alternative language is as follows;

None of the above language is perfect for every circumstance and the fact that it must be included could be an indicator that mom and dad are not working together in the child’s best interest. Also, parties can disagree on how to “cooperate” and what is “reasonable.” However, if you are dealing with a battle-axe it’s much better to have specific language and not need, than to need it and no have it.

Matthew Thompson is a Family Law attorney and wishes Claire a happy, happy, happy birthday!

divorce, General Legal, Marriage

Annulling your Marriage

03/08/2013 BowTieLawyer 2 Comments

Annulment is the process of revoking your marriage. It is a legal mechanism that dissolves the marriage by legally undoing it, as if you were never married. Annulment differs from divorce.

Annulment results in you being able to claim, truthfully, that you were never legally married. It erases the marriage.

Annulments are rare and only granted on a limited basis. Mississippi law provides for annulment via MCA 93-7-1, et seq. The statute allows for annulment in all instances of incest or bigamy with no time limitations for seeking the annulment. In fact, in these circumstances the marriage would be void. Also, incest and bigamy are grounds for divorce, so you could take your pick between seeking an annulment or divorce.

Annulment is allowed if one of the following was in existence at the time of the marriage ceremony;

incest (raised at any time)
bigamy (raised at any time)
incurable impotency
mental illness or incompetency (must be sought within 6 months of marriage)
failure to comply with licensure requirements AND no cohabitation
lack of understanding or want of age (not old enough to consent), or due to fraud or force (again w/i 6 months of marriage)
pregnancy of wife by another and husband did not know (w/i 6 months of marriage)

These are the grounds for annulment and if you don’t fall into one of these categories annulment is not an option. I have had numerous calls of persons married for weeks, or months who want to seek an annulment because they made a mistake. Mistake is not a ground for annulment.

**It should be noted that a legal annulment differs from a religious annulment. You can have one without the other and they have no bearing on one another. So is an annulment right for you? You better act quickly and know that in most instances it is not.

Matthew Thompson is a Family Law attorney and can help you erase your marriage mistake.

divorce, General Legal, Opinion

Ain’t Nobody Got Time for That (Unhappy Clients)

03/04/2013 BowTieLawyer 2 Comments

What’s the fastest way to have an unhappy client? Charge too much? Not return calls? No, the fastest way to have an unhappy client is to represent them for FREE.

What? We all love stuff that is FREE! This is true in a lot of instances, but in professional services it is decidedly not. Legal representation is different from giving someone a free box of donuts. Most of the time the legal services needed are important and have risk associated. Typically the person seeking assistance has contributed to the predicament that they are in. You, as the attorney, think you are doing them a favor, but are you?

Certainly there are circumstances of appreciated and gratifying Pro Bono work. In Mississippi attorneys are required to work at least 20 hours per year on Pro Bono matters, but the client does not get to decide.

It seems that clients getting something for nothing are more demanding, are more suspicious and are more prone to complain. This is because the typical arms length transaction, which provides for the exchange of compensation for services, when not used creates an imbalance.

The FREE client is more suspicious because they wonder how good a job the attorney is doing.
The FREE client is more demanding because they have to get all that they can for free because they know it will end soon.
The FREE client complains more because they do not have to refuse to pay and wonder what that attorney is going to do about it.
This is not intended to disparage Pro Bono clients and their cases, but rather to warn attorneys and other professionals to be careful when taking on FREE representation.

Beware of FREE representation and to the clients seeking a free attorney, sometimes…you get what you pay for.

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Bow Tie, divorce, General Legal, Marriage, Opinion

Churchill Wisdom; On Divorce

02/28/2013 BowTieLawyer 1 Comment

Lady Nancy Astor:

Winston, if you were my husband, I’d poison your tea.

Churchill: Nancy, if I were your husband, I’d drink it.

Portrait of Winston Churchill by Yousuf Karsh

Matthew Thompson is a family law attorney and suggests you seek the advice of an attorney before you brew or drink any “tea.”

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