Don’t Curse in Public! (Public Service Announcement)

12/14/2012 BowTieLawyer 6 Comments

In my profession as a “wicked” divorce attorney I hear lots of cursing and sordid tales. I see pictures, movies, texts, emails, and love letters that would make you blush. Plus I get paid to review this “evidence.” (All fodder for future blogs!). I am saying this just so you know I am not a “prude.” However, I have recently visited the most magical place on Earth and was astounded with what I heard. (**I do not attribute the amount of the cursing to the magical location. I think I was more acutely aware of the cursing due to the circumstances. Don’t sue me, Mickey!**)

With that disclaimer, the following is a snippet of what I personally heard/observed;

“He’s an a**h****! See his badge. All the guys with badges are a**h***s.” (Said by a an early fifties male guest to his early fifties wife, about a park employee bus driver, as the wife nodded in agreement).
“More like Barbie B*tch.” (One mom said to another mom when the child was describing Tinkerbell Barbie to another child).
“That’s some bu**$***.” (Not sure of the context, but overheard a forty-something male saying to his friend).
Various “F-bombs.” (Mainly regarding waiting in lines; lines for the bus, for the rides, for the restaurants…there are a lot of lines).
AND overheard kids saying;
“$h**, mom! We missed Tinkerbell!” (I really heard a 12-year-old say this to his mother, mom responded that Tinkerbell will probably be back soon).
“Don’t be a ‘Whiny B#tt'” (Said by a 5-year-old to her 4-year-old sister).

Okay, so you heard someone cussin’. What’s the big deal?

The big deal is that there were numerous children all within earshot of every instance, from babies to teenagers. I don’t use curse words, except professionally. I would especially prefer you to not curse around children. Also, it could get you cited for obscenity or disturbing the peace.

And kids cursing? Come on. Back in the day; b#tt, d@mn, cr@p and s#cks were bad words. Not to mention the unmentionables (four-letter words). Let’s keep those words taboo.

Want to cuss at your house? Have at it. Go to a public location attended by 1,000s of kids, try not to be the cast from The Usual Suspects. Want your child to gain friends and win influence? Teach them how to speak by setting the right example.

Don’t like my opinion? Cuss me out, but do it via email at Matthew@wmtlawfirm.com or the next time we are having a private conversation.

Thompson Law Firm, pllc Matthew@wmtlawfirm.com (601) 850-8000

Divorce

Things Primary Custodians Know; Custody Battles

12/12/2012 BowTieLawyer Leave a comment

When mom and dad are getting a divorce, or even if not married, custody is frequently an issue. In the event that they cannot agree to the Custody arrangement, the Court will decide for them by applying the Albright Custody factors.

Within these factors there are a few which carry more weight than others. (Ultimately the Jude determines the weight of each). Today’s blog is focusing on the “continuity of care prior to separation.” This means who has been the primary caregiver. To determine this the Court conducts a factual review of the parties actions and conduct with regards to being the primary caregiver and knowing the things primary caregivers know.

Primary caregivers know;

School teacher(s)
Day care provider(s)
Pediatrician
Dentist
Close friends of the child
Child’s favorites; food, colors, TV shows, toys
Child’s physical health issues
Clothes sizes
Shoe sizes

Primary caregivers do the following;

Get the child ready for their day
Cook, clean, wash, bathe the child
Take the child to and from school
To and from the Dr.’s visits
Playdates
Birthday parties at the Jump Zone
School programs
Extracurricular Activities
Clothes shopping
Shoe shopping
Santa Clause, Tooth Fairy, Easter Bunny

While the division of the above chores is rarely even, and each parent has their role, more often than not one parent is doing more and the Court will consider the facts when determining continuity of care.

*The Court determines the weight of each factor. Even if a parent was favored in continuity of care, that factor alone does not provide that they will gain custody in every circumstance.

Thompson Law Firm, pllc (601) 850-8000

Child Custody, Divorce, General Legal

Can Children Testify in Court?

12/10/2012 BowTieLawyer 5 Comments

Child testimony is an often discussed issue between parents and attorneys dealing with family law cases. When parents are getting a divorce the children usually know more than their parents think and have “discoverable” information. The children most likely witnessed fights, arguments, or other “bad” conduct. Perhaps they knew of one parties misconduct and were asked to help hide it, or at least not disclose it. Also, the children frequently know there is more to the story than mom and dad can no longer get along.

So, do the children testify or not? Typically having the children testify should be avoided if it can be. There are several seminal cases in Mississippi law that deal with child testimony. For Chancery Court, or divorce court, purposes the leading authority is Jethrow vs. Jethrow, 571 So.2d 270 (Miss. 1990). This case lays the groundwork that the Court should use when assessing child testimony. Different Courts and different Judges apply Jethrow in varying ways, but the basic premise is, as follows;

A child witnesses of tender years, 12 and under for testimony purposes, testifying is subject to the discretion of the Judge.
Before allowing such testimony the Judge “should satisfy himself that the child has the ability to perceive and remember events, to understand and answer questions intelligently, and to comprehend and accept the importance of truthfulness.”

Before excluding the testimony of a child witness of tender years in a divorce proceeding, the chancellor at a minimum should follow the procedure required by Crownover v. Crownover, 33 Ill.App.3rd 327, 337 N.E.2d 56 (1975):

The first hurdle is whether the child is competent to testify.
The Judge should confer in camera (meaning in the Judge’s chambers/office) with the child and determine whether or not the child’s testimony should be heard
The Judge has considerable discretion in conducting proceedings of this type, meaning it’s a judgment call.
The court should not, however, reject outright proposed testimony of a child in custody proceedings, where the omission of such crucial testimony might be harmful to the child’s best interests.
The trial court should take great pains to have an in camera conference with the child to determine the competency of the child,
as well as the competency of any evidence which the child might present.
The court should also then determine whether the best interests of the child would be served by permitting her to testify, or
Whether the child should be sheltered from testifying and being subjected to a vigorous cross-examination.
The Judge should report the essential material matters developed at the in camera conference on the record.
The Court should state the reasons for allowing or disallowing the testimony of the child, and
The Court should note the factual information which the court developed from the conference with the child which would be considered by the court in its ultimate determinations in the case.

Generally, the testimony of a child called as a witness in a divorce case should not be excluded for reasons other than competency, or evidentiary defects, or for the protection of the child. (24 Am.Jur.2d, Divorce and Separation, A 415). There should not be a summary refusal to inquire as to the competency of the child to testify and also of the competency of the proposed testimony of such child in a change of custody proceeding.

“We reiterate that parents in a divorce proceeding should if at all possible refrain from calling any of the children of their marriage, of tender years at least, as witnesses, and counsel should advise their clients against doing so except in the most exigent cases. The reason and wisdom behind this precaution need no amplification. We also hold, however, as we must that no parent can be precluded from having a child of the marriage in a divorce proceeding testify simply because of that fact.” Jethrow v. Jethrow, 571 So.2d 270, 274 (Miss. 1990).

A child testifying should be avoided if it can be, however if it cannot be avoided the above process will likely be used by the Court to determine if and how the child will testify.

Visit the website: #Thompson Law Firm You may also contact Matthew with your family law matter or question at (601) 850-8000 or Matthew@bowtielawyer.ms

Divorce, General Legal, Marriage, Opinion

Condoning Bad Behavior; Losing Grounds for Divorce

12/07/2012 BowTieLawyer 3 Comments

They cheated! You found out…you TRIED to work it out, but the trust has been broken and you just cannot get over it. You decide you have no choice but to file a suit for adultery. You’ll get your fair share and move on. Right? Not so fast…

In Mississippi, to be awarded a Divorce, you have to either have Fault Grounds(click) against your spouse, that can be proven, or you and your spouse have to agree to ALL issues in the divorce, via Irreconcilable Differences(click). (All issues must be agreed; the divorce, itself, who gets what, who pays what, everything has to be agreed).

Additionally, in Mississippi, there are Defenses to a Divorce. A Defense can be used to prevent the Divorce. One of those Defenses is Condonation.

Condonation is “legal forgiveness.” This happens when the aggrieved spouse knows of the fault, in this example an affair, and decides to reconcile with the other party, when you TRIED to work it out.

Once the aggrieved party makes that decision to reconcile and the parties resume, or continue cohabitation, and resume marital relations (sex) the aggrieved party has legally forgiven the guilty party. So what does that mean? There are no longer grounds for divorce based upon adultery.

There are a few catches. The guilty spouse must, in good faith, attempt the reconciliation intentionally with the purpose of saving the marriage. Additionally, the aggrieved spouse can only forgive what they know about. If there were multiple affairs and all were not disclosed there may still exist fault grounds, whether they are aware of it or not. Also, the behavior, the adultery, if repeated revives the grounds for divorce. That is, past acts that were known may have been forgiven, but if repeated the aggrieved would have grounds again. Future acts would not be forgiven either solely based on a prior reconciliation.

Condonation is one of those more difficult issues to wrestle with in divorce. The Court must consider the knowledge of the aggrieved spouse, the intent of the guilty spouse, the effort(s) to reconcile – whether they are in good faith. All these are fact specific and subjective determinations to be made by the Court.

Warning!! Some lawyers will advise the guilty party to do or say whatever is necessary to get the other party back in bed, for “reconciliation,” so that the defense of Condonation may be used. If you find yourself in this situation, please seek the advice of an attorney prior to a reconciliation attempt. Divorce attorneys can also help you save your marriage, or at least advise you on the ramifications if you try.

Divorce, General Legal, Grandparent Visitation, Modifications, Visitation

Grandparents, Not Just for Babysitting (Grandparent’s Visitation in Mississippi)

12/05/2012 BowTieLawyer 4 Comments

For as long as people have had children there have been grandchildren. Where there are grandchildren there are Grandparents. Where there are Grandparents there are free babysitters!

Mississippi has a statute, MCA 93-16-3, that specifically provides for Grandparent’s Visitation. Grandparent’s Visitation is different from babysitting and is different from just being in the child’s life. Specifically, Grandparent Visitation is for when the mother or father of the child dies, to insure that the Grandparent continues to have access to the child or when the Grandparent and their child have a falling out and the Grandparent has a viable relationship and active in the grandchild’s life, and also in divorce and/or Termination of Parental Rights (TPR) situations.

The law provides a viable relationship may be proven by showing that the grandparent has supported the grandchild in whole or in part for at least six months prior to the filing of the petition, or the grandparent had frequent visitation for one year prior to the filing of the petition.

The case of Martin v. Coop, 693 So.2d 912, 913 (Miss. 1997), list the factors the Court considers when determining the amount of Grandparent Visitation.

Potential disruption in the child’s life;
Suitability of the grandparents’ home;
The child’s age;
The age, physical and mental health of the grandparents;
The emotional ties between grandparents and the child;
The grandparents’ moral fitness;
Physical distance from the parents’ home;
Any undermining of the parents’ discipline;
The grandparents’ employment responsibilities;
The grandparents’ willingness not to interfere with the parents’ rearing of the child.

Usually grandparent visitation is not the equivalent of parental visitation. Meaning grandparents will not get every other weekend under ordinary circumstances.

A Grandparent Visitation suit can also result in the Grandparents paying their own attorney fees PLUS those of the mother/father as provided for in the statute.

Grandparents have rights in Mississippi to see their grandchildren.

**Grandparent Visitation is different from a grandparent seeking custody, which is a different standard and a blog for another day.

Matthew Thompson is a family law attorney and knows grandparent’s rights.

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@bowtielawyer.ms

Marriage, Opinion

You Never Marry the Right Person.

12/03/2012 BowTieLawyer 3 Comments

This thought provoking title was taken from an excerpt from The Meaning of Marriage by Timothy Keller and appeared in Relevant Magazine. This title, while appearing startling, is actually pretty profound if you think about it. The gist is that searching for someone who accepts you as you are and fulfills your desires, creates an unrealistic set of expectations that frustrates both you and your partner. This results in someone relying too much on a marriage partner for their own self-fulfillment. It creates impossible expectations.

The article instead encourages one to view marriage as the coming together of two flawed people working to create “stability, love and consolation.” While the search for soul-mates and the one that “completes you” is romantic to think about and makes for entertaining movies, (if you like that sort of thing try, He’s Just Not That Into You) it is unrealistic and overly simplistic. The article concludes, “[s]imply put—today people are asking far too much in the marriage partner.” And I would add, and not asking enough of themselves.

You never marry the right person, but the marriage can be right!

Divorce

Who Gets the Stuff? Fighting over Furniture…

11/30/2012 BowTieLawyer 2 Comments

Who gets what is always an issue in divorce. Mississippi Courts use a concept known as Equitable Distribution – which means things are to be divided fairly, but not necessarily equally. Now, more often than not it is close to an equal division. So what is stuff? For the purposes of this post, I am referring to personal property. Furniture, electronics, utensils, personal effects – Stuff!

divorce furntiture — Courtesy of random internet search.

The Court will allow the parties to agree to any division that they can mutually agree upon. Barring that, the Court may also employ the “Two List Method.” One party makes 2 list of everything in the home, “equally divided,” and the other party gets to pick which complete list of items they want. The party that made the lists gets the list of items not picked by the other. Courts think this is a fair way to do it.

But, what if my family gave me that dinette set? The Court will take into consideration if the property is marital property or not, but by and large anything acquired during the course of the marriage is marital. And, anything used, or “commingled,” by the family can lose its separate status and become a marital asset. Now this does not mean that he is going to get Grandma’s antique China Buffet, but it does mean that a portion of the value could be deemed marital and there could be a set-off through other means. He could get both couches, instead.

Who gets the stuff? Usually it’s somewhat of a balancing act. Each party receives their own respective personal effects and the parties are usually able to agree as to who gets what of the Stuff.

Thompson Law Firm, pllc Matthew@wmtlawfirm.com (601) 850-8000

General Legal, Opinion

Do I Need a Lawyer?

11/28/2012 BowTieLawyer 3 Comments

This question, “Do I NEED a Lawyer?” is asked of me on an almost daily basis. It’s one of those questions that when you ask a lawyer if you need a lawyer – you know what the answer is going to be. “Yes! You need a a lawyer.” If you are having to ask if you need a lawyer, you probably need a lawyer.

So, when do you NEED a lawyer?

When you have been sued. If there is an active lawsuit you need to see a lawyer.
When you have been seriously injured and it was not your fault. This applies to car wrecks, but it also applies to any injury.
When you have been arrested. Law Enforcement involvement is usually a significant sign that you need an attorney.
When there are significant risks involved. Lawyers are trained to identify and attempt to minimize risk.

Well, you think, if I talk to a lawyer it may make the issue more serious. Perhaps, but lawyers, for the most part try to help. Their goal is to advise you, help you, and/or defend you from whatever harm is at issue. Knowing your rights, being prepared, and being fully informed are never negatives to self-preservation.

Okay, so I need a lawyer. How do I find one? Glad you asked. (click me)

If you think you need a lawyer, You Do. If you are asking yourself, or others, if you need a lawyer, You Do.

Matthew Thompson is a family law attorney in Mississippi. He uses an attorney when he needs one and you should too. 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.