Alimony, Palimony & Baloney

04/10/2013 BowTieLawyer 6 Comments

Alimony is one of the least understood aspects of a divorce. Alimony is a payment from one spouse (or ex-spouse) to the other, when a financial need exists. This payment is to maintain the receiving spouse in the “manner in which they had grown accustomed” during the course of the marriage. However, alimony is not a punishment to be awarded by the Court, nor is it an absolute in all situations.

Alimony is governed by the Court and the considerations are outlined in the case of Armstrong. These Armstrong factors are considered and reviewed after the Court conducts Equitable Distribution (click), and only if the Court determines one party would be left with a deficit. Then the Court considers the facts specific to your case and then a determination is made as to whether alimony is to be awarded, how much, and how long it is to be paid. The factors include;

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).

Within Alimony there are 3 basic types;

Permanent (or Periodic)- Forever! Until death or remarraige, usually deductible and modifiable.
Rehabilitative – limited in time and amount. May be subject to taxes and may be modified depending on specific language.
Lump Sum – “Guaranteed” can be in one lump or in installments, non-modifiable and non-taxable.

A brief discussion of each “type” of alimony will be posted in the future and linked back to this article.

So what is Palimony?

Palimony– alimony when the parties lived together, but were not married. Can’t do it in Mississippi.

What about Baloney?

Baloney- A Spouse at fault can’t get Alimony? Not TRUE, it is possible. The Court will conduct an Armstrong Analysis.
A Husband can’t get alimony? Not TRUE, it is possible. It would be unconstitutional to discriminate based on gender.
Must be married for at least 10 years? Nope. The longer the marriage the better, but it’s possible to get some types of alimony even in short marriages.

Matthew Thompson is a family law attorney in Mississippi. Questions about Alimony? Call? Questions about Baloney? Don’t.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000

Divorce, Property Division

Marital Property; How it’s Divided.

04/08/2013 BowTieLawyer 9 Comments

“What’s yours is mine and what’s mine is mine.”

Sometimes splitting property in a divorce feels like this infamous quote!

Mississippi is an Equitable Distribution state, NOT a Community Property state. The main difference is that Mississippi Court’s have discretion from requiring a 50/50 split in every circumstance. In fact, Equitable Distribution means “fair, but not necessarily 50/50.” I have previously touched on division of stuff in Fighting Over Furniture.

To determine what is fair, a number of factors are used called the Ferguson Factors.

“Therefore, this Court directs the chancery courts to evaluate the division of marital assets by the following guidelines and to support their decisions with findings of fact and conclusions of law for purposes of appellate review. Although this listing is not exclusive, this Court suggests the chancery courts consider the following guidelines, where applicable, when attempting to effect an equitable division of marital property:

Substantial contribution to the accumulation of the property (Mopping it Up in a Divorce, click for explanation). Factors to be considered in determining contribution are as follows:
1. - Direct or indirect economic contribution to the acquisition of the property;
  - Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
  - Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
The degree to which each spouse has expended, withdrawn or otherwise disposed of marital asset(Marital Waste; Don’t Spend Money on Your Girlfriend). and any prior distribution of such assets by agreement, decree or otherwise.
The market value and the emotional value of the assets(Sentimental Value can be Valuable) subject to distribution.
The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution (Sentimental Value can be Valuable), such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
Any other factor which in equity should be considered.“

Ferguson v. Ferguson, 639 So.2d 291 (Miss. 1994).

In a series of future blogs a small discussion of each factor will be posted, and linked back to this post. The first step is knowing these factors. How the Court applies the specific facts of your situation to these factors determines who gets what.

Matthew Thompson is a family law attorney in Mississippi and wants you to end up with your Stuff!

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Child Custody, Child Support, Divorce, General Legal, Modifications, Visitation

A Fool for a Client…and Lawyer

04/04/2013 BowTieLawyer 1 Comment

“He who represents himself has a fool for a client.”

– Abraham Lincoln

Oh, I have heard the stories that so-and-so did it and “won,” but that is the exception and not the rule. Family law cases are hard to manage anyway, much more so if you don’t know what you are doing and if your judgment is clouded by high emotions. I have seen many a Pro Se client just do awful.

Pro Se is the term the Courts use. It is Latin, meaning “for oneself.”

Lawyers have specific training and education regarding Court rules, rules of evidence and procedure. Legal matters require things be done in a certain fashion or they are not valid. Lawyers, usually, have experience with that particular area of the law and the Judge handling the matter.

I was involved in a case where the father, representing himself, sued the mother for interfering with his visitation, according to him. He filed the suit, had her served and got a Court date. Oops! He did it wrong. After filing, he should have gotten the Court date, had a summons issued (the correct summons by the way, a Rule 81 Summons in this instance) and then had the mother served. Because he did it wrong it, he could not get the relief he was seeking and had to do it over. In the meantime, mom met with her attorney, who asked the right questions. It turns out dad was well behind on his child support and that the child and the father had a significant altercation which prompted the visits to stop. Now, mom was armed with a lawyer, the law and filed against dad. Ultimately, dad was held in contempt for non-payment of support. He had to pay mom’s attorney fees and once the Judge heard about the altercation between the child and father, he ordered anger management counseling for dad and restricted visitation until dad re-petitioned the Court for visitation, after completing the counseling. I like to think that if I had represented dad it would have been a different outcome or perhaps dad could have tried to resolve things without Court involvement. He should have had an attorney. Click here for blogs on “Do I Need an Attorney?” & “How do I Find an Attorney?”

Representing yourself is about the worst thing you can do in a divorce and custody case!

Matthew Thompson is a family law attorney in Mississippi and thinks it wise to see an attorney before you try to represent yourself, and to not do it even after that.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.

Divorce, General Legal, Irreconcilable differences

Attorney Fee$ in Divorce

04/03/2013 BowTieLawyer 2 Comments

Attorney fees are always a big topic in family law. Nobody wants to pay ’em, but everyone wants to get ’em, including attorneys!

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.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.

General Legal, Opinion

Churchill Wisdom; On Guns

04/01/2013 BowTieLawyer 1 Comment

Winston Churchill, who appears not infrequently as a part of this blog, was known to carry a firearm on his person.

The above, a 1896 Broomhandle Mauser, was his military issued firearm.

According to British firearms author and historian Richard Law, knowing Churchill had been targeted by Hitler’s agents for assassination, Churchill always went armed, his bodyguards notwithstanding. He kept a Thompson sub-machine gun, loaded in a rack within easy reach in his official limousine. Discovering that his chief bodyguard carried a little .32 Webley, Churchill ordered a new Colt Government Model .45 for his him. A short time later, Churchill asked the chief bodyguard how he liked the new pistol. The man replied that he was still carrying the .32 because the Colt was too heavy.

“Give it to me, then,” snapped Churchill, as he shoved it into his overcoat. This became the great leader’s personal carry gun until the end of the war.

Prior Churchill Wisdom includes;

Mississippi, beginning in July, will allow open carry and 2 levels of concealed carry are currently available for residents.

Matthew Thompson is a family law attorney in Mississippi. Contact TLF with your family law or firearm law related inquiry.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.

alienation, Crime, Divorce, General Legal

Criminal Conversation (Just Sex)

03/29/2013 BowTieLawyer 1 Comment

Criminal Conversation is likely the most misleading term you will hear or read today. Criminal conversation, briefly mentioned in this prior blog on Alienation of Affection, is today’s topic.

Criminal Conversation is an act of adultery between a person and the spouse of another. This tort, meaning a civil wrong, commonly arises in Alienation of Affection situations, but differs greatly from AOA. Alienation allows a wronged spouse to sue the “significant other” of the guilty spouse for the breakdown of the marriage. It requires proof of 3 elements; 1) Wrongful Conduct, 2) loss of affections, and 3) a causal connection.

In Criminal Conversation if you have sex with a married person, who is not your spouse, you are guilty. There is no defense to the tort of criminal conversation.

Consent of the wife is no defense. The fact that the wrongdoer did not know the wife was married, but believed her to be single is not a defense. The fact that the wife represented herself as single is not a defense. The fact that the wife was the aggressor is not a defense. The fact that she has been neglected or mistreated by her husband is not a defense. The fact that she and her husband were separated through his fault is no defense.

Criminal Conversation has been hailed as “notorious for affording a fertile field for blackmail and extortion” and action may be brought “not for the purpose of preserving the marital relationship, but rather for purely mercenary or vindictive motives.”Kline v. Ansell, 287 Md. 585, 414 A.2d 929, at 931. (1980). Courts have found that this tort is “incompatible with today’s sense of fairness” because there are no defenses to a cause of action. Id.

Several arguments have been advanced for the abolition of it, including;

(1) a woman is no longer the property of her husband;
(2) the tort has no deterrent effect;
(3) a cause of action may be brought for vindictive purposes;
(4) the potential for abuse is great;
(5) the tort is devoid of any defenses; and
(6) determining damages, meaning money, is difficult.

So now that you are sweating about this, rest easy. Criminal Conversation was abolished by the MS Supreme Court in 1992 in the case of Saunders v. Alford, 607 So.2d 1214 (Miss. 1992). Alienation of Affection, however, is alive and well.

Matthew Thompson is a family law attorney in Mississippi. If you need to have a conversation with a lawyer about family law you know who to call.

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Crime, General Legal, Opinion

Open Carry in MS?

03/25/2013 BowTieLawyer 22 Comments

I have previously blogged on MS gun laws and recent tweaks in the law. In the paper, Sunday, there was an article that stated effective July, MS will allow open carry. (Perhaps, more accurately stated is that it appears that it is not prohibited.)

Previously, the MS Attorney General opined, in June 2012, which is only “advisory,” that it is illegal to carry a handgun without a license (concealed carry permit). The license requires that the entirety of the handgun be concealed. The above picture would be a violation of the old law. If the jacket were covering it completely, it would not be if you had a concealed carry permit. This will be changed effective July 1, 2013, and includes incidental unconcealment will not be a violation. My prior article regarded this “tweak” of the law. However, another inspection of the law change also reveals a few other things ADDED to and REMOVED from the prior law.

ADDED (paraphrasing)

97-37-1. (1) Except as otherwise provided in Section 45-9-101, any person who carries, concealed * * * on or about one’s person, any pistol, revolver… must have a concealed carry license.

(4) For the purposes of this section, “concealed” means hidden or obscured from common observation and shall not include any weapon listed in subsection (1) of this section, including, but not limited to, a loaded or unloaded pistol carried upon the person in a sheath, belt holster or shoulder holster that is wholly or partially visible, or carried upon the person in a scabbard or case for carrying the weapon that is wholly or partially visible.

This change now takes any pistol out of the definition of “concealed” if in a holster and visible or partly visible. This means the above picture is no longer a concealed handgun and no longer is subject to concealed carry license requirements.

The licensing requirements of this section do not apply to the carrying by any person of a stun gun, pistol or revolver, …that is not concealed as defined in Section 97-37-1.

So now the law change has established what the definition of “concealed” is NOT and that a pistol in a holster, on your person, that is visible is not concealed.

Now for the REMOVED section.

The prior law had a clause to the effect ‘that nothing herein may be used to authorize open carry…‘ This language has been deleted from the new law. The reason is because now this concealed carry law, which defines “concealed,” specifically excludes being applied to a pistol in a holster that is visible. It, by default, defines open carry.

There is a maxim in the law that holds that which is not prohibited is allowed. “Everything which is not forbidden is allowed” is a constitutional principle of English law — an essential freedom of the ordinary citizen. MS has no law, effective July, that prohibits open carry (and did not prior to this either, really). Or rather, MS law now defines a pistol in a holster as not concealed and therefore not subject to concealed carry license requirements.

So, what else is on the books? The MS Constitution guarantees our rights to keep and bear arms (along with the US Constitution). There is nothing else in the law regarding concealed or open carry for citizens.

You can read the bill for yourself here. While it is not black and white law allowing for open carry, there is now (July 2013) “nothing” which can be used to prohibit open carry. Interestingly, I have heard that the same restrictions to concealed carry apply to open carry, meaning limitations on locations and that if a person posted a sign that you could not carry on premises. I say “interestingly” because the prohibitions are all in the concealed carry license statute, the law which specifically authorizes concealed carry. The argument could be made that open carry is not subject to concealed carry rules because it is specifically excluded from the definition.

I predict some more law changes and litigation/law enforcement run-ins about this one.

Matthew Thompson is a family law attorney in Mississippi and supports your Second Amendment rights.

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Bow Tie, Uncategorized

Friday Fun; When I Grow Up…

03/22/2013 BowTieLawyer 1 Comment

Today, the 1st graders got to dress up like what/who they wanted to be when they grew up and say why…

His first choice was the “Avatar, the Last Airbender.” When we discussed that he was a fictional character and his mom would not let him shave his head and tattoo an arrow on it, he chose a lawyer! I was proud. But, being the Avatar would be cool!

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.