Category Archives: General Legal

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…

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

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.

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.

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.

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 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.

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.

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.

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.

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.