Modifying Your Divorce Without the Court, Think Again.

This is an all too common occurrence.  Mom and Dad get divorced, rock along and a few years down the road they decide to change their deal.  They are getting along, at least better than before the divorce, and both are burned from their past experiences with attorneys and attorney fees.  So…they decide we can handle this like mature adults.  Dad wants a custody tweak, Mom needs a support adjustment – bam-shabang– let’s just do it.

Mom and Dad agree that the Order will be “modified.”  They switch to a week-on, week-off custody arrangement.  The kids are older, it works.  Dad starts paying support directly for the benefit of the kids. He pays for the child’s car and insurance, and picks up health insurance which was previously mom’s responsibility. Dad does not pay mom directly. It’s about the same money, probably.  What could go wrong?  A lot of things!

Court Orders may only be modified by other Court Orders.  Once an Order is issued and in place the parties are bound to follow it.  This is so ironclad  that the Court has a mechanism in place to enforce its Orders that can result in the breaching party having to pay fines and/or go to jail. This process is called Contempt.  If you are not following the Order in your case, you are subject to a contempt petition being filed by the other party.

But if we agreed what’s the big deal?  The deal is that Agreement is not worth the paper its written on if it is not approved by the Judge.  At some point in the future, and it never fails, Mom and Dad have a falling out, again.  Mom goes to attorney and tells him that Dad has not paid child support in two years.  Mom sues  Dad for Contempt for all of the “back” support and then “un-agrees” to the custody change and goes back to an every other weekend schedule for visitation.   Dad counter sues for a custody modification seeking custody now due to mom’s change and contempt over the health insurance issue.  The only sure thing now is that each has considerable contempt for the other and the Court is left to sort it out.**

Dad scrambles to get his “proof” that he paid the car and insurance, but that is not what was ordered.  Mom tries to justify her position on the visitation retread because that is what the papers said, as if her hands are tied now and the “papers” know best.  Had they done an Agreed Order and had it approved by the Court, they could have accomplished the same thing and not left the door open for future problems of having the old Order used against them.  Both would have been protected and still had the same “teeth” in enforcing their Agreement it would have just been enforcement of their new Agreement.  Now both have risk and have conducted, at least, actionable non-compliance with the Court order.

If you modify your Order/Agreement do it in writing, signed and approved by the Court. It’s the only way to guaranty that the Agreement is enforceable and for protection from being subject to Contempt for not doing what was in the prior Order.

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Dads Have Rights Too!

(I recently spoke to a group of fathers, and a few others, about a Father’s Rights in a custody action. I also had a request, this week, from an online fan about blogging specifically about Father’s Rights. I agreed to do it, but these “Rights” apply to parents regardless of gender.)

Dads Have Rights Too!

One of the most frustrating things in my practice is a father who says he wants rights to his children but is unwilling to put his money where his mouth is, figuratively and literally.  Those dads want the “fun” parts of the job and to spend time with the children, but do not want to do the “work” and do not want to pay child support or think whatever they are paying is enough. So first things first, pay your support, pay it on time and pay it every time. And when the need arises pay for something extra. With the support issue out of the way, in an initial custody determination, be it a divorce situation or a paternity/custody matter, mom and dad are on a level playing field.  Yes, equal.  Equal at least as far as the facts support that statement.

Great Dad

 

In a divorce situation or a paternity/custody matter, mom and dad are on a level playing field.  Yes, equal.  Equal at least as far as the facts support that statement.

 

 

The Court must conduct what is called an Albright Analysis (blogged about earlier, click here).  This analysis looks at a number of factors including, the continuity of care* or who has been doing what for the child up to that point where you find yourself in Court, and what is in the best interest of the child. (*in initial determinations this is the biggest factor, barring extraordinary circumstances).

If you are dad and 1) have been doing the bulk of the child care, 2) are a good, 3) safe, and 4) active parent there is no genuine threat to you in a custody battle because of your gender.  However, if mom has been doing the 1) day to day care, 2) taking to and from school and3)  the doctor and 4) soccer and 5) everything else, and you, as dad, spend time with the children on the weekends when you are not at work – just because mom gets custody does not mean the system was fixed and the mom always wins.

Now the law does recognize a term called the tender years doctrine – which states a very young child should be with the mother, unless there is a compelling reason why the child should not, ie: mom is unfit- meaning a danger to the child.  Sometimes if your child is very young and mom has the controls you just have to bide your time.  The tender years ends between 2-3 years of age, with no definite, exact age.

But dads can and do get custody if the facts are there to support that outcome.

The other big peeve is dads that do not exercise their visitation.  There is common acceptance out there that standard visitation is every other weekend (EOW), Friday to Sunday, Wednesday afternoons when you don’t have the weekend, alternating major holidays and 4-5 weeks in the summer.  And some dad’s don’t take advantage of it.  I call “standard visitation” a misnomer because there is technically no such thing as “standard visitation,” though that is in fact what is quite often ordered and/or agreed to.

But there is also a trend, over the last several years, where dads are getting more time, if they want it and meet a few other requirements.  If dad has been an involved dad, wants more time and the parties live in the same community that EOW can be expanded to Friday to Monday or Thursday to Monday of every other weekend.  Research shows that dad being responsible for a school night results in the kids doing better. It also makes dad responsible for time that is not all “Fun” time AND it puts most of the pick-up and drop-offs at school, which means less of a chance of an altercation with mom.  Dads can be more than every other weekend dads if they are willing to do it.

Go to their ballgames, school programs, and dance recitals.  Know who their teachers are and doctors.  Don’t rely on mom for all of that and be mad when she does not give it to you.  Get it yourself.  How?  Go to the school. Call the Dr.’s office. Mississippi law provides  a means for you to have the right to those records.  MCA Section. 93-5-26. (click here).

Finally, don’t be intimidated by mom and her lawyer. Hire a lawyer. (Don’t say you can’t afford one, you cannot afford to NOT have an attorney).  Mom and her attorney will not run you over unless your conduct provides them the truck to do it. And if your conduct does provide that truck, STOP.  Act right. Do it for your children and yourself.

21 (And We’re Not Talking About BlackJack) Age of Majority – Emancipation

The age of majority in Mississippi is 21.  That means you pay child support and provide benefits for your child until he or she attains the age of 21.  It is NOT 18.  While your child may think he or she is grown at age 18, the state of Mississippi says otherwise. MCA 93-11-65.  The age of majority is also synonymous with emancipation, though a child may be judicially emancipated prior to 21.

So you are paying until 21, but there are exceptions.

Emancipation is a process of having the child “declared” an adult  shall occur upon the child;

  • Marrying
  • Joining the military and serves on a full-time basis
  • Is convicted of a felony and is sentenced to incarceration of two (2) or more years for committing such felony

Other forms of Emancipation include Court-Ordered Emancipation when your child;

  • Discontinues full-time enrollment in school having attained the age of eighteen (18) years, unless the child is disabled
  • Voluntarily moves from the home of the custodial parent or guardian, and establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors prior to attaining the age of twenty-one (21)
  • Cohabits with another person without the approval of the parent obligated to pay support; cohabits generally means living together as if husband and wife.

Mississippi has lower rates, meaning amounts of child support, when compared with other states nationally, however, Mississippi makes up for it by extending payments to 21 in most instances.

Click here for Mississippi Child Support Rates

Pay your child support and pay it on time.

Matthew Thompson is a family law attorney that files Contempt actions against persons that are not paying their Child Support.  Don’t be one of those persons!   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.

Divorce, Child Custody & Child Support, Alimony, Contempt, Modification, Youth Court, Adoption and Appeals.

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