Mother’s are the most important influence in a child’s life. A mom’s job is never done and frequently is under-appreciated, overworked and underpaid, except maybe “fringe” benefits.
scottchan/freedigital photos.net
The modern holiday of Mother’s Day was first celebrated in 1908, when Anna Jarvis held a memorial for her mother in West Virginia. Jarvis began a campaign to make “Mother’s Day” a recognized holiday in the United States. Officially Mother’s Day was first celebrated in 1914. This holiday was adopted by other countries and it is now celebrated all over the world. – Wikipedia
Mother’s Day is also routinely addressed in Custody and Visitation schedules. Under most Orders, Mom gets Mother’s Day regardless of whose weekend it is and it can include either the day or the entire weekend. In the few instances where this is overlooked, I still encourage dad to allow mom this time to be with the children.
Matthew Thompson is a family law attorney in Mississippi and wishes all the Mothers in his life Happy Mother’s Day!
One of my first posts on this site, way back, was a cut and paste job of an article I wrote a few years back for the Mississippi Bar Family Law Section Newsletter. It was entitled, I am an Undivorce Attorney. I am re-blogging on it because, one) I have a significantly greater audience now, and two) I like writing about good news in divorce law. I am still an Undivorce Attorney.
In Mississippi, you can legally UNDIVORCE! Yes, you can have your judgment of divorce revoked by the Court that granted it. This is not a remarriage, but rather judicially undoing the legal divorce. Why, you ask? Well, just like sometimes people marry the wrong person, sometimes they got it right the first time and divorced the wrong person.
MCA 93-5-31, provides that a judgment of divorce may be revoked at any time by the Court that granted it. The Court may require “satisfactory proof of reconciliation,” as well as “such regulation as it may deem proper.” It requires a joint application of both parties. The process can be fairly simple and quick.
Upon approval by the Court, you can have your divorce erased and it’s as if you were never legally divorced. You get “credit” for being married those years you were not, so 25 years still equals 25 years.
This is a very unique quirk in MS law and not widely known. In fact, a few judges, I have heard, have questioned whether they had the authority to do an undivorce and if it was legal. They do and it is.
Matthew Thompson is a family law attorney in Mississippi and whether you marriage was a mistake or your divorce was a mistake, I can help!
Attorney fees are always a big topic in family law. Nobody wants to pay ’em, but everyone wants to get ’em, including attorneys!
Stuart Miles/ freedigitalphotos.net
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.
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.
The clever title to this blog was proposed by an attorney friend of mine that handles some family law matters, but practices extensively in other areas of law.
We were discussing what gets them off track. The parties, after getting over the initial shock of divorce, decide they will be adults and agree. They think they can agree to the divorce and resolve their differences. After all, they did manage to get along for 9 years, have two kids and bought a house. What could go wrong? Perhaps they searched online and looked at divorceyourself.com. A very risky idea!
Well, the old adage that the devil is in the details is never truer than in divorce. The No Fault idea gets derailed when the fellow realizes he will have to pay 20% of his income towards child support, plus health insurance and alimony. Yikes! He realizes it’s cheaper to keep her. (sorry for the cliché) The wife gets squirrely when she realizes that her half of the retirement account is consumed by balancing the equity in the house, or that the money she gets cannot be realized without significant tax consequences.
Parties to a divorce don’t realize child support is until 21, not 18 in Mississippi. They don’t know the types of custody, or what that means. They agree to things that they cannot legally agree to and fail to consider the consequences. They agree to “legal terms” that do not exist in Mississippi law, because they saw it online. And lastly, one of them is finally convinced to see an attorney by a close friend or family member and when they do and realize the consequences of what they were about to do and back out, the other side becomes angry and backs out too. All of a sudden an easy deal becomes complicated, expensive and adversarial.
Irreconcilable Differences (“ID divorce”) is Mississippi’s answer to the NO FAULT* divorce. Mississippi is not a true NO FAULT state. In MS both parties must agree to the divorce and to all the terms of the divorce, including ALL issues of child custody, child support, equitable distribution (how MS divides your stuff) and alimony, if any. Every issue has to be agreed upon to gain an ID divorce***. If ALL can be agreed upon, an ID divorce is just about the quickest and least expensive way to get a divorce in MS.
The basic process is;
1) File a Joint Complaint for Divorce (begins the 60 day waiting period**),
2) Exchange Financial Statements (called an 8.05),
3) Draft and sign an Agreement stating all of the details of who gets what, and who pays what (called a Property Settlement Agreement or PSA),
4) Draft and sign a Final Judgment (the actual divorce), and finally
5) Present all to the Judge for approval.
The Judge will review the Filings, Financial Statements and Agreement, and if the judge finds it “adequate and sufficient” will sign off. Upon the signed Final Judgment being filed and recorded by the clerk- You are DIVORCED.
Well that is fine, but what if we thought we could agree and now we cannot? What can I do then?
Either party can prevent an ID divorce by;
1) Not agreeing;
2) Not signing anything;
3) Filing on Fault;
4) Filing a Notice of Withdrawal of Consent.
An ID divorce is the most often granted type of divorce in Mississippi and even most fault based divorces are converted into an ID divorce. The benefit to an ID divorce is that it does not require adversarial positions to be taken in Court and it gives you, the parties, the ability to agree and have the say in the outcome of your situation. Anything that could be had in a fault based divorce can likewise be achieved in an ID divorce, with the sole exception of having the divorce granted on fault.
* In a NO FAULT state either party can secure the divorce regardless if the other party agrees . In the event they cannot agree the Court can divide the property.
** The 60 day waiting period is the minimum time that the parties to an ID divorce must wait. It is designed as a cooling off period.
*** There is also the possibility of a hybrid situation where you and your spouse can agree on the divorce and agree to let the Judge decide the issues that you cannot agree upon. This technique, however, has its risks and should not be gone into lightly and certainly not without consultation of an attorney.
You may also contact Matthew with your family law case, question or concern at (601) 850-8000
(601) 850-8000 - - BowTieLawyer.MS 