Matthew Thompson www.BowTieLawyer.ms (601) 850-8000
It’s an expression from the gambling world, but holds true in family law too.
Overplaying your hand is when you think you have the advantage, but do to whatever reason you don’t. Sometimes it’s because an important piece of information was not disclosed, or perhaps overlooked, or because the opponent has the ability to make a situation appear to be something that it is not.
For instance, it’s common in custody disputes for one side to want full custody and the other to want joint. The side that wants joint describes each side’s parenting as basically 50/50 and, of course, there is no need for child support. The side that wants full custody describes the parenting as more 80/20 and seeks support. The full custody parent can also back up their claims. They know the teachers, doctors, children’s schedules, and have done the primary care-giving. The side that wanted joint, well their job did not allow them to really do joint, but the 20% of the time they were around, they did 50% of the parenting. That would have been nice to know on the front end.
The bottom line is to be sure to tell your lawyer everything. If you do, you can be protected as much as possible. If you don’t, they may call your bluff and you could be up the river.
Matthew Thompson is a Divorce attorney in Mississippi and warns you that sometimes calling the person who is overplaying their hand can backfire on you. So be careful either way.
The engagement ring. A circle, no beginning and no end. A diamond, one of the Earth’s most precious stones. However, if you don’t get married it goes back.
A very recent Mississippi Court of Appeals case reaffirmed Mississippi law on the engagement ring. In Cooley vs. Tucker, 200 So.3d 474, (Miss. App. 2016), the fellow, Tucker, gave a $40,000.00 ring to Cooley in 2011. He broke off the engagement in 2014. Cooley wore the ring the entirety of the engagement and the parties discussed wedding arrangements.
After calling off the wedding, Tucker requested the ring back and Cooley refused claiming it was a gift. To be a a valid gift the following is required:”(1) a donor competent to make a gift; (2) a voluntary act of the donor with donative intent;(3) the gift must be complete with nothing else to be done; (4) there must be delivery to the donee; and (5) the gift must be irrevocable.” Id.
The Court reasoned it was not a gift, in that it was a conditional gift in contemplation of marriage. Because no marriage occurred the gift condition was never satisfied. The ring must be returned. Cooley also argued that the Court should weigh in on the reasons for the marriage not occurring in the first place, meaning whose fault was it. The Court said, “We decline to do so.” Id. Did you get married? If no, the ring goes back.
Matthew Thompson is a Mississippi Family Law Attorney and cautions you to be careful who you marry and also be careful to whom you become engaged.
It seems our “lives” are lived on FaceBook, for better and for worse.
A short marriage came to an abrupt end when the parties realized that they did not really know each other. It was not a first marriage for either party, a whirlwind courtship and a tumultuous coupling that lead to separation after 9 months.
The husband sought an easy “no-fault” divorce. She would keep hers plus he pays her some starting over money, he keep his and they go their separate ways. She did not respond.
Well, she actually hired a lawyer and sued him for everything; a fault based divorce, 1/2 of the house, 1/2 of his retirement, that he buy her a car, permanent alimony, plus she retains all of her stuff. Again, all of this based on a 9 month marriage. It’s important to note that he had the house prior to marriage, the bulk of the retirement prior to marriage and the car was a lease that was to be turned in.
She was aggressive to a fault. She sought a temporary hearing and asked for temporary alimony. She didn’t get it. We then went through the discovery process. We sought records, arrest and otherwise.
Finally, a break through…she posted on FaceBook that she was engaged! To her Soulmate!
I sent her lawyer a note. It said “Great news! I hear congratulations are in order. Your client has announced her engagement. Attached are the pictures she posted, plus a pic of an impressive engagement ring…it’s high time this case settle. Attached is our proposal to settle all issues. Please review, sign where indicated and return to me. In the event this does not resolve this matter we will be filing an Amended Answer and Counterclaim consistent with these revelations.“
The case settled that day via an easy “no-fault” divorce. She kept hers plus he paid her some starting over money, he kept his and they went their separate ways.
Matthew Thompson is a Mississippi Divorce Attorney and is equally grateful and frustrated that FaceBook exists.
Mississippi is again the butt of the joke, the laughingstock, and the backwards looking, Buckle of the Bible-belt, and proud of it.
Go Get My Belt
The Mississippi legislature has refused to “open the floodgates of divorce.” This is demonstrated by the recent deaths of two bills. One, providing an additional ground for divorce if your spouse commits Domestic Violence against you, and the second casualty, adding “two years of actual separation” as a fault ground.
A Change of Heart
Who killed it? The whole legislature is not to blame (or take credit). Both bills passed the Senate. Mississippi House of Representative, Andy Gipson, takes the credit for killing Senate Bill 2703. This is the bill that added Domestic Violence as a ground. Gipson would not even allow the merits of the bill to be considered for discussion in the House. Gipson told the Clarion Ledger “[w]e need to have policies that strengthen marriage. If a person is abusive, they need to have a change in behavior and change of heart.” Gipson went on to add that current, existing law covers the proposed changes rendering it unnecessary and that the change would “open the floodgates” of divorce. Gipson’s rationale relied upon contradictory points. Gipson argued out of both sides of his mouth.
However, Gipson is wrong. The current, existing law requires proof of habitual cruel and inhuman treatment. Habitual means constant. It is quite likely that one conviction for Domestic Violence would not be grounds for divorce in a large majority of Mississippi’s divorce Courts. The law provides that for one instance to be enough it has to be physically severe. Interestingly, one conviction is enough to provide that the offender can never possess a gun, ever again, but it does not provide that the spouse-victim can get a divorce.
Gipson provided no means for this change of heart either.
Don’t Go Changing the Rules in the Middle of the Game
State Senator Chris McDaniel put in his two cents, as well. As he voted against the proposal to add two years of bona fide, actual separation as an additional ground for divorce, which Gipson also killed. McDaniel stated that “given the state is in the marriage and divorce business, lawmakers shouldn’t be changing the terms of the contract midstream.” This comment literally means that he believes that people seeking to marry fully contemplate the 12 fault grounds for divorce, the Court’s burden of proof to establish same with corroborating witnesses and evidence, and then and only then enter into a marital contract. Ridiculous.
We’re Not Last in Something
Every state except Mississippi and South Dakota provide for a true No-Fault divorce process. This means that in the 48 other states, and the District of Columbia, if you are a resident and want a divorce you get a divorce. According to the Center for Disease Control, Mississippi is tied for the 15th highest divorce rate, per capita, in the United States. That means that over 30 states have a lower divorce rate than Mississippi, despite it being infinitely easier to gain a divorce in those states. Floodgates be damned.
“If You Ain’t First, Your’re Last” – Ricky Bobby
Mississippi is perennially last in every “good” category and first in the “bad” categories. Our head-in-the-sand “leaders” seem to be doing their best to keep us there. Mississippi ranks last in education for high-school graduation, last in school performance , one of the highest unemployment rates, and 49th in teen pregnancy rate. We are also statistically more obese, worse drivers and will die sooner. Maybe that last one is good?
But it Just Enriches Lawyers
I am a divorce lawyer. The current, existing laws only serve to enrich lawyers, not protect families. Our Courts, and man’s law, cannot make people love each other and cannot make people live together. The proposed law change, making divorce law make sense, would make it less lucrative to be a divorce lawyer. But, it’s still the right thing to do. While Gipson and McDaniel are both lawyers, the majority of our legislature is not. Only about 32% of the entire legislature are lawyers. 48 or so, out of 152. It is not a bunch of lawyers running amok. However, 45% of our legislature are Baptists. Some 69 or so, including Gipson and McDaniel. Even if, at best, this is not about money, it means that this is about forcing your subjective beliefs on someone else. Remember, this Country was founded upon religious freedoms. It is in the Constitution.
The Bottom Line
Why should you care? Because the current law promotes divorce blackmail. Divorces are a necessary “evil” of life and marriage. Divorce is rooted in the Bible and while it is despised, it is allowed for adultery, abandonment, abuse and adultery of the heart. The heart that needs to be changed is the heart of a lawmaker that seeks to keep a just-enough-abused, but not too much, spouse in a loveless “marriage.” That is not a marriage. The floodgates are already open. The law change actually serves to help and protect those that we are commanded to help and to protect.
Matthew Thompson is an opinionated divorce lawyer, adjunct professor that teaches family law, author of Mississippi Divorce, Alimony and Child Support, a native Mississippian and proud of all of the above.
Please see our article appearing in this month’s edition of The Mississippi Lawyer magazine. It’s reproduced below for your convenience.
Many times we have clients call regarding a divorce and have common misconceptions because “that’s what they have heard.” Just because your friend’s neighbor went through a divorce does not mean that what they experienced applies to your case. Also, as all cases are uniquely different, your case is not guaranteed to be like theirs.
I’m filing for a no fault divorce. Mississippi is not a true “no fault” state. At this time, one party cannot file for a no fault divorce in Mississippi. Both parties may file for a divorce on Irreconcilable Differences, keyword “both” parties. This filing is usually a Joint Complaint for Divorce, which also requires that both parties have entered into an Agreement for the custody, support and maintenance of the minor child(ren) and the settlement of all property rights.
An affair means you can’t have custody. False. When determining custody, the Court relies on the Albright factors. Albright vs. Albright, 437 So. 2d 1003 (Miss 1983). One of the factor is the moral fitness of the parents, this is where the Court could consider any fault or misconduct on the parties. The court has stated “marital fault should not be used as a sanction in custody awards.” Carr, 480 So.2d at 1123. Where both parties engage in extramarital affairs, neither should get the benefit of a finding of moral fitness. Fulk v. Fulk, 827 So.2d 736, 740(¶ 15) (Miss.Ct.App.2002).
A court should determine custody and the best interests of the child by looking at the following factors:
The woman always gets custody. False. Miss. Code Ann. §93-5-24(7) states: “There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.” Some lawyers may be screaming at this article, “what about the tender-years doctrine??” In Rosser v. Morris, the Court of Appeals affirmed the trial court’s decision of the mother being granted custody and during an analysis of Albright stated, “Although the tender-years doctrine was ” significantly weakened” by section 93-5-24(7), ” there is still a presumption that a mother is generally better suited to raise a young child.” Passmore v. Passmore, 820 So.2d 747, 750 (¶ 9) (Miss. Ct. App. 2002), 135 So.3d 945 (2014). The lower court found that since the father had played an active role in changing diapers, bath times, and games that the factor of the age, health and sex of the child favored neither parent.
Once a child is twelve, he/she can decide where they want to live. This is simply not true. When making a custody determination the Court considers ALL of the Albright factors. The applicable statute, Mississippi Code Annotated section 93-11-65(1)(a) (Supp.2006), states ” the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.” (Emphasis added.) Phillips v. Phillips, 45 So.3d 684 (2010). One of the factors includes the preference of the child over the age of 12, but this one factor alone does not carry the day. The child’s preference is not outcome determinant. Holmes v. Holmes, 958 So.2d 844, 848 (¶ 15) (Miss.Ct.App.2007) That being said, as a child reaches certain, more mature ages, the Court may be more inclined to adopt the child’s preference.
“Take you to the cleaners” Mississippi is an equitable distribution state. Equitable distribution does not mean 50/50, but it also does not mean 100/0. The court has laid out several factors known as the “Ferguson Factors” when it comes to equitable distribution. Ferguson vs. Ferguson, 639 So.2d 921, 928-9 (Miss. 1994). The enumerated factors are as follows:
Mississippi is not an alimony state. Mississippi is an alimony state. The court has laid out several factors known as the “Armstrong Factors” when determining whether or not alimony is appropriate. Armstrong vs. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993).
It is important to note the Court has directed that alimony is to be used after an equitable distribution of the marital estate. If the court finds that the needs of both parties are met and there is no disparity with the distribution of the marital estate, the court does not consider alimony.
1) The first factor is the income and expenses of the parties. When there is a great disparity in the earning capacity and incomes of the parties it could support an award of Alimony.
2) The second factor is the health and earning capacities of the parties. This considers physical and mental health, as well as earning capacity, to include degrees, etc…
3) Third, the court is to consider the needs of each party. The living expenses.
4) Fourth, the court is to consider the obligations and assets of the parties. Is the marital estate encumbered by a significant debt? Is a party living off his credit card?
5) The fifth factor to consider is the length of the marriage. Less than 10 years is not long. 20 years and over is long. Between 10-20 is the gray area. Of course, it’s all gray and it’s possible to get alimony in very short marriages and not get it in very long marriages.
6) The sixth factor is the presence or absence of minor children in the home.
7) The seventh factor is the age of the parties. Think years left for gainful employment and to live…
8) The eighth factor is the parties’ standard of living, both during the marriage and at the time of the support determination. Have the Parties enjoyed a relatively high standard of living in comparison to most? Allowing them to take trips, to purchase recreational vehicles, to purchase a half a million dollar home in the suburbs, to send their children to private school, and have not had to be concerned about money or curb their spending during times when husband was not working?
9) The ninth factor to consider is the tax consequences of the spousal support. Alimony payments, normally,would be taxable income to the receiver and deductible to the payor, allowing her to receive a tax benefit in the reduction of her taxable income for the duration of the support payments. It’s also possible to make it non-taxable, depending upon the duration of the payments and whether same is owed in the event the payor dies.
10) The tenth factor is fault or misconduct. Fault grounds; adultery, cruelty, etc…
11) The eleventh factor is wasteful dissipation of assets by either party. Booze, drugs, or gambling spending.
12) The final factor for the court’s consideration is any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support. So any other compelling reason in favor of alimony.
After weighing each of the factors set forth in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993), and viewing the totality of the circumstances, the court will find whether an award of alimony is warranted.
The man has to provide health insurance. False. At first I thought this was a joke, but I have heard it enough times to include it in this list. There is no authority that a male is required by law to provide health insurance. This usually comes up in child support issues. Miss. Code Ann. §43-19-101 (6) states:
(6) All orders involving support of minor children, as a matter of law, shall include reasonable medical support. Notice to the obligated parent’s employer that medical support has been ordered shall be on a form as prescribed by the Department of Human Services. In any case in which the support of any child is involved, the court shall make the following findings either on the record or in the judgment:
(a) The availability to all parties of health insurance coverage for the child(ren);
(b) The cost of health insurance coverage to all parties.
The court shall then make appropriate provisions in the judgment for the provision of health insurance coverage for the child(ren) in the manner that is in the best interests of the child(ren). If the court requires the custodial parent to obtain the coverage then its cost shall be taken into account in establishing the child support award. If the court determines that health insurance coverage is not available to any party or that it is not available to either party at a cost that is reasonable as compared to the income of the parties, then the court shall make specific findings as to such either on the record or in the judgment. In that event, the court shall make appropriate provisions in the judgment for the payment of medical expenses of the child(ren) in the absence of health insurance coverage.
If we have joint custody, that means I do not have to pay child support. False. Child Support can still be awarded within the Chancellor’s discretion under the statute. Chancellors can evaluate the expenses of the child, the difference in wage and earning capacity of the parties’ to determine whether child support would be appropriate.
Common misconceptions abound and include more than just the topics included here. Friends and the internet can be a valuable resource, but they can also be dangerous to rely upon. Instead, rely upon your attorney. Ask the question even if you think you know the answer. Do not let these Family Law faux pas trip you up.
By Matthew Thompson & Chad King
Matthew Thompson & Chad King are attorneys with Thompson Law Firm. If you have questions regarding a Family Law matter, or any other legal issue, you may call to have your questions answered or for an appropriate referral at (601)850-8000.
FaceBook is ubiquitous. It is virtually everywhere.
However, it is NOT for airing your grievances with your significant other. It is NOT where you post how awful the other parent is/was/will be. It is NOT where you share embarrassing pictures, screen grabs of texts, or generally blast the other person.
So, you may ask, where do I get to do those things? Court, maybe. Or, maybe you don’t do those things.
Matthew Thompson is a Family Law Attorney in Mississippi and cringes when he sees this junk on FB and maybe smirks.
Matthew@bowtielawyer.ms (601) 850-8000 www.BowTieLawyer.ms
Yesterday’s blog regarding not getting re-married on the same day as your divorce inspired some additional excellent advice…
Do NOT set your Wedding Date before the divorce is FINAL.
Obviously, you cannot get re-married if you have a pending divorce. However, you should not set the date to marry your one, true beloved, counting on the divorce to go through from your demented, soon-to-be-ex on time, every time.
Divorce is not Amazon Prime. There is no guaranty that it will be there with next day shipping. In fact, routinely, something occurs to delay the process. A signature page was left blank or someone forgot to notarize all of the documents. Sometimes the Court is not available on day 61 to enter it and sometimes people change their minds.
Matthew Thompson is a Mississippi divorce attorney and advises you to wait until the divorce is final before setting the date for wedded bliss.
(601) 850-8000 Matthew@bowtielawyer.ms
(601) 850-8000 - - BowTieLawyer.MS 