Category Archives: General Legal

Child Custody, Child Support, Divorce, General Legal, Irreconcilable differences, Marriage

Mediating Family Law; Resolving Your Case on Your Terms or Not.

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I will be mediating a family law case, or rather agreeing to mediate a divorce, custody and property division case in the near future.  Mediation is a process whereby the parties agree to meet and attempt to resolve all issues prior to going to trial or without having to go to trial.

In a mediation the parties agree to hiring a third-party, typically another attorney or retired judge, to “hear” their  case.  Now the mediator is NOT the main authority.  In fact, the mediator cannot compel either of the parties to do or agree to anything. The mediator’s role is to point out the strengths and weaknesses of each sides case and to try to find common ground.  Sometimes the mediation is based on reason and logic and sometimes it is based on emotion or just some number someone is trying to reach. Almost anything can be mediated, though a rule of thumb is to not mediate when not prepared factually, legally (research wise), or with an abuser.

Pros:

  • The parties have the ultimate say in the final outcome.
  • Mediator gets to hear “everything,” so a party may have their “say.”
  • It is appeal proof. (unless fraud involved)
  • It can save fees and expenses.
  • It can reveal strengths and weaknesses in a case.
  • It works.  (approx 90% of the time)

Cons:

  • If there is no agreement there is no settlement.
  • Mediator’s opinion is non-binding.
  • It can add a layer of expense.
  • It can be frustrating.
  • It may not work.

Mediation is not a silver bullet to end litigation. It is just another implement in the tool box of resolving and litigating cases.

Is mediation right for you?  Almost any matter can be mediated. Speak to your attorney for more information.

Matthew Thompson is a family law attorney and believes in the mediation process, though it may not be right in every situation.

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Child Custody, General Legal, Marriage, Visitation

Great Dad!

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Great Dad!

Dads have rights too.

I don’t know who to photo credit this picture, but hat tip to Hunter Brewer for sharing on FB this morning.

Matthew Thompson is a family law attorney and knows that being a great parent is a full-time job.

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.

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Crime, Divorce, General Legal

Domestic Relations vs. Domestic Incarcerations; Jail for bad behavior.

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In Family Law, dealing with divorce and child custody issues are enough to keep any attorney busy.  With ever-changing emotions, gray areas of the law relating to dividing assets and assessing how a particular judge may determine the best interests of a child, attorneys and clients don’t need more on their plate to deal with.  But, there is more…Jail!

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I have previously blogged on going to Jail for having sex and not paying child support, but there is another reason folks go to jail in their family law case, letting their emotions get the best of them.

It is quite common for Family law matters to “spill over” into Justice Court or Municipal Courts.  Most commonly are assault, trespass and domestic violence violations.  I have included portions of the statute for you to review, below and italicized common issues.

The severity of these charges depends in large part on the severity of the circumstances, the severity of injuries, if any, and whether there is a history of violations or abuse.  Unfortunately, it is not uncommon for one spouse to attempt to use these criminal allegations to “one-up” the other and attempt to use the criminal charges as leverage in divorce negotiations.

Lawyers would be wise to warn their clients about the possibility of a client losing their cool, even once, leading to criminal charges and that, perhaps, their former significant other may “create” circumstances in the hopes of using those against them in a later or pending divorce action.

§ 97-3-7. Simple assault

(1) (a) A person is guilty of simple assault if he (i) attempts to cause or purposely…causes bodily injury to another; (ii) negligently causes bodily injury with a deadly weapon… or (iii) attempts by physical menace to put another in fear of imminent serious bodily harm; shall be punished by a fine of not more than Five Hundred Dollars ($ 500.00) or by imprisonment for not more than six (6) months, or both.

§ 97-17-85. Trespass; going upon inclosed land of another 

If any person shall go upon the enclosed land of another without his consent, after having been notified by such person …not to do so …or shall remain on such land after a request by such person; shall, upon conviction, be fined not more than Fifty Dollars ($ 50.00).

§ 97-3-7. Simple domestic violence; Aggravated domestic violence 

(3) A person is guilty of simple domestic violence who commits simple assault as described in subsection (1) of this section (see simple assault)  against a current or former spouse … upon conviction, the defendant shall be punished as provided under subsection (1) …a third conviction of simple domestic violence…within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment not less than five (5) nor more than ten (10) years.

§ 97-3-7.  Aggravated domestic violence 
(4) A person is guilty of aggravated domestic violence who commits aggravated assault as described in subsection (2) of this section against, or who strangles, or attempts to strangle, a current or former spouse … Upon conviction, the defendant shall be punished by imprisonment in the custody of the Department of Corrections for not less than two (2) years nor more than twenty (20) years… a third conviction of aggravated domestic violence…within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment of not less than ten (10) nor more than twenty (20) years.

(2) (a) A person is guilty of aggravated assault if he (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (iii) causes any injury to a child who is in the process of boarding or exiting a school bus in the course of a violation of Section 63-3-615; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the Penitentiary for not more than twenty (20) years.

Matthew Thompson is a family law attorney that has only been to jail to help his clients get out.  He intends to keep it that way and hopes (advises) that you do too!

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.

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Divorce, General Legal, Marriage, Opinion

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

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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!

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

5 More Family Law FaceBook Don’ts

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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.

Follow the blog: BowTieLawyer

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Bow Tie, Child Support, General Legal, Grandparent Visitation, Modifications, Opinion

Behind the Scenes; LawCall, TV, Radio & Speaking)

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Recently I was invited to be on the TV show LawCall.  I decided to write about that experience; the good, the challenges, and the behind the scenes “secrets.

LawCall is a live, weekly, thirty-minute call-in show hosted by local personal injury attorneys Rocky Wilkins and Tim Porter of the law firms, Morgan & Morgan and Porter Malouf, respectively.   The show features guests attorneys from across the state of Mississippi.  Every show highlights usually an area law.  The attorneys take live phone calls from viewers pertaining to that topic. My appearance was the Valentine’s edition; Love & the Law – Family Law in Mississippi.

This was not my first time on television discussing legal themes. I was previously a guest on the Local 98 TV Show The Reel Deal with Cole Berry discussing legal movies.  I have also been on the radio discussing Father’s Rights on WLEZ, in preparation for the then upcoming Mississippi Volunteer Lawyers Project’s free family law seminar.  I also routinely speak at CLEs (continuing legal education seminars) on Family Law.  I really enjoy these opportunities to talk about what I do.

On LawCall the usual hosts were out-of-town so Ben Wilson, an attorney with Rocky Wilkins Firm, filled in for Rocky.  Ben and I discussed general family law topics prior to the show.  I also met and spoke with the moderator/ TV facilitator Tamica Smith.  Tamica is a pro.  She has been on the news and TV for over 15 years in various markets and was as cool as a cucumber.

When I arrived, I received my instructions from Charley Jones and his wife Angela.  They produce LawCall.  I received an ear piece where I could hear the control room and the callers.  We did a run down, which is just a practice run of the show.  I was told where I would be sitting, how the show would open, when to expect commercial breaks and generally where to look.  This was the toughest part for me.  There were 3 cameras.  The one to my right I was never to look at.  When the shot showed the whole panel I was to look into the middle camera and when I was speaking directly to the caller I was to look to the left camera.  It took some practice and just as I was getting the hang of it the show was over!

There were 4-5 callers with some really good questions.  There was a question about whether a new spouse would be responsible for the husband’s support obligation from a prior relationship. She would not be.  There was a question about Grandparent’s rights.  Grandparents have rights guaranteed by law in Mississippi.  A caller asked about whether his alimony obligations could be changed.  Based on what he described he could seek to modify his obligations.

Behind the scenes.  One of the newscasters had on jeans.  You only saw him from the waist up on TV so it did not matter…  It made me think of the old joke showing all the newscasters in their “heart boxers” and suits up top.  It was only water in the coffee mugs.  I got to keep the mug.  Also, I had one call to my office within one minute of the show ending and had another call at 9:05 a.m. Monday morning.  How is that for marketing results!

Matthew Thompson is a family law attorney that has appeared on Local 98 TV, WLBT’s Law Call, WLEZ on the radio and at numerous speaking engagements.  If you need a speaker or TV personality at your next Family Law Seminar/Banquet please contact Matthew about his low, low “Celebrity Appearance Fee!”

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

Appeal, Divorce, General Legal

How Appealing!

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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.  

Follow the blog: BowTieLawyer 

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Divorce, General Legal, Modifications

Latin Lessons; Res Judicata

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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.

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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.

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.