There are more than one avenue to getting a divorce on the grounds of Irreconcilable Differences in Mississippi. However, each avenue ultimately involves the parties reaching some form of agreement. The avenues to a Irreconcilable Differences divorce are:
1. Complete agreement from the outset. This involves both parties signing a Joint Complaint for Divorce, a Marital Dissolution Agreement (aka Property Settlement Agreement), and a Judgment of Divorce. The Joint Complaint is filed and must remain on file for sixty (60) days prior to a divorce being finalized.
2. Agreement to obtain divorce from the outset (sort of). This involves both parties agreeing to a divorce on Irreconcilable Differences. However, they can’t agree to all terms of property division, or support, or custody, so they enter into an agreement stipulating all matters that they do agree upon, and stipulating that the Court shall hear and decide all matters which the parties cannot agree upon. Thereafter, the Court will hold a hearing where both parties put on evidence regarding those things they have submitted to the Court for a decision.
3. Adversarial proceeding at the outset. This can ultimately end up as an Irreconcilable Differences divorce in the following ways:
a. Both parties file complaints for divorce on fault grounds against the other, with irreconcilable differences plead in the alternative. At some point after the commencement, both parties reach an agreement in writing (called a Marital Dissolution Agreement or Property Settlement Agreement), sign a Consent to Divorce on Irreconcilable Differences, sign a Joint Motion to Withdraw Fault Grounds and Denials, and sign a Judgment of Divorce. The initial complaint starting the proceeding must still be on file for sixty (60) days before the divorce can be finalized.
b. One party files a complaint for divorce on fault grounds, with irreconcilable differences plead in the alternative, and the other party comes in and agrees to a divorce on Irreconcilable Differences. The parties can then agree to all terms of property division, support and custody issues (as in #1 above), or the parties can agree to some of the terms of the property settlement and a consent to allow the Court to decide all matters not agreed upon (as in #2 above).
For more information, visit our website at http://www.showspowell.com/.
Wednesday, June 30, 2010
Friday, June 25, 2010
Five Common Misconceptions of the Mississippi Irreconcilable Differences Divorce
1. One person can get a divorce on the grounds of irreconcilable differences over the objection of the other. Not true. A divorce on the grounds of irreconcilable differences requires consent by both parties.
2. When you get a divorce on the grounds of irreconcilable differences, you are divorcing your spouse. Partially true. When a court grants a divorce on the grounds of irreconcilable differences, both parties are divorcing the other. Most divorce decrees are written that way. Therefore, one spouse is not divorcing the other; instead, both spouses are divorcing each other. Perhaps for some this is not an important distinction, but for others it is important.
3. You have to agree on everything to get a divorce on irreconcilable differences. Not true. You can submit to the court those issues which you and your spouse cannot agree upon and allow the court to decide these issues. For example, you both know that you want out of the marriage, and can agree on a divorce on the grounds of irreconcilable differences. However, you can’t agree on: custody of the children; the amount of child support; alimony; who gets the house and who pays the mortgage; who pays the credit card debt, or how the credit card debt should be divided; how the furniture, furnishings and other personal property is divided; etc. However, to submit these unresolved issues to the court, you must enter into a stipulation that is in writing agreeing that these issues are to be decided by the court.
4. Irreconcilable differences is a ground for divorce. True - with a twist. It is a ground for divorce as set forth in the statute at M.C.A. Section 93-5-2. However, irreconcilable differences is not a fault grounds that one person can prove against the other. See #1 and #2 above.
5. If both parties agree to the terms of the divorce, the court will automatically approve the divorce. Not true. This is especially not true pertaining to unusual child custody arrangements or agreements where a non-custodial parent is not going to pay any child support. The court is not in the habit of rubber-stamping agreements that do not make adequate and sufficient provision for the care, custody and support of the minor children.
For more information, please visit our website at http://www.showspowell.com/.
2. When you get a divorce on the grounds of irreconcilable differences, you are divorcing your spouse. Partially true. When a court grants a divorce on the grounds of irreconcilable differences, both parties are divorcing the other. Most divorce decrees are written that way. Therefore, one spouse is not divorcing the other; instead, both spouses are divorcing each other. Perhaps for some this is not an important distinction, but for others it is important.
3. You have to agree on everything to get a divorce on irreconcilable differences. Not true. You can submit to the court those issues which you and your spouse cannot agree upon and allow the court to decide these issues. For example, you both know that you want out of the marriage, and can agree on a divorce on the grounds of irreconcilable differences. However, you can’t agree on: custody of the children; the amount of child support; alimony; who gets the house and who pays the mortgage; who pays the credit card debt, or how the credit card debt should be divided; how the furniture, furnishings and other personal property is divided; etc. However, to submit these unresolved issues to the court, you must enter into a stipulation that is in writing agreeing that these issues are to be decided by the court.
4. Irreconcilable differences is a ground for divorce. True - with a twist. It is a ground for divorce as set forth in the statute at M.C.A. Section 93-5-2. However, irreconcilable differences is not a fault grounds that one person can prove against the other. See #1 and #2 above.
5. If both parties agree to the terms of the divorce, the court will automatically approve the divorce. Not true. This is especially not true pertaining to unusual child custody arrangements or agreements where a non-custodial parent is not going to pay any child support. The court is not in the habit of rubber-stamping agreements that do not make adequate and sufficient provision for the care, custody and support of the minor children.
For more information, please visit our website at http://www.showspowell.com/.
Wednesday, June 16, 2010
The Don’ts of Paying Child Support in Mississippi
(1) Don't be late in paying. The custodial parent has the right to expect your compliance with the court order, and has the right to rely on the expectation that the child support will be paid on or by a certain date so they can properly budget and spend the money for the benefit of the child.
(2) Don't pay the wrong amount. See number 1 above.
(3) Don't pay it in cash. This makes it too easy for the custodial parent to lie saying they never received the child support, or alternatively too hard for you to prove that you actually paid the child support. Cancelled checks and money order receipts are much better evidence of your payment of the child support than your word.
(4) Don't regret having to pay it. You should want to support your child to make certain they are properly cared and provided for. What kind of parent are you if you don’t want the best for your child?
(5) Don't pay it when you want to. See number 1 above.
(6) Don't wait until all of your other bills are paid to see if you have enough to pay it. You should pay it first before your other bills are paid. That way you won’t be put in the unpleasant position of having to explain to the Judge why you didn’t pay it. You can go to jail for not paying your child support.
(7) Don't try to dictate to the custodial parent how they spend the child support. Its none of your business so long as the child is being properly provided for. You gave up the right to have a say in how the custodial parent spends the money when you divorced or didn’t get married after having reproduced with them.
(8) Don't ignore the child support obligation if you lose your job. Get a lawyer immediately and file a petition for modification based on the change in circumstances and your inability to pay. Ignoring your child support obligation only makes it worse.
To learn more visit our website at http://www.showspowell.com/.
(2) Don't pay the wrong amount. See number 1 above.
(3) Don't pay it in cash. This makes it too easy for the custodial parent to lie saying they never received the child support, or alternatively too hard for you to prove that you actually paid the child support. Cancelled checks and money order receipts are much better evidence of your payment of the child support than your word.
(4) Don't regret having to pay it. You should want to support your child to make certain they are properly cared and provided for. What kind of parent are you if you don’t want the best for your child?
(5) Don't pay it when you want to. See number 1 above.
(6) Don't wait until all of your other bills are paid to see if you have enough to pay it. You should pay it first before your other bills are paid. That way you won’t be put in the unpleasant position of having to explain to the Judge why you didn’t pay it. You can go to jail for not paying your child support.
(7) Don't try to dictate to the custodial parent how they spend the child support. Its none of your business so long as the child is being properly provided for. You gave up the right to have a say in how the custodial parent spends the money when you divorced or didn’t get married after having reproduced with them.
(8) Don't ignore the child support obligation if you lose your job. Get a lawyer immediately and file a petition for modification based on the change in circumstances and your inability to pay. Ignoring your child support obligation only makes it worse.
To learn more visit our website at http://www.showspowell.com/.
Monday, June 14, 2010
The "Do's" of Paying Child Support in Mississippi
Do:
(1) Pay it on time. The custodial parent (and child) need to know that they can depend on the child support being received at the same time each month so they can properly budget and timely pay bills and expenses.
(2) Pay the correct amount. Just as above, the custodial parent (and child) rely on the same amount of money each month to budget and timely pay bills and expenses.
(3) Pay it by check or money order. You want some proof via canceled check or money order receipt that you paid it.
(4) Pay it willingly and happily. This is for your child, which you had a part in creating. What a wonderful example to the child of your love if you demonstrate that you are happy to support them.
(5) Pay it because you love your child(ren).
(6) Pay it according to the latest court order. The latest court order dealing with child support controls.
(7) Pay it consistently. See numbers 1 and 2 above.
(8) Make it a priority. Pay it first. Its not paid only if you have money left over to pay it. Its paid even if you don’t have the money to pay your other bills.
(9) Understand that you ordinarily have no say in how the custodial parent spends the child support. Just because you pay child support does not give you the right to be a dictator as to how and when the money is spent on your child. However, if you find out the child support is being used to support an addiction such as drugs, alcohol, or gambling, continue to pay your child support but immediately seek legal advice for your options.
(10) Communicate with the custodial parent if a problem arises with regards to paying the child support on time. If you suddenly have a problem such as losing your job, reduced hours, etc., and you have been consistent with paying your child support, the custodial parent will be more understanding and willing to work with you until the problem is resolved. If you are not consistent, you are less likely to receive understanding and compassion from the custodial parent.
To learn more visit our website at http://www.showspowell.com/.
(1) Pay it on time. The custodial parent (and child) need to know that they can depend on the child support being received at the same time each month so they can properly budget and timely pay bills and expenses.
(2) Pay the correct amount. Just as above, the custodial parent (and child) rely on the same amount of money each month to budget and timely pay bills and expenses.
(3) Pay it by check or money order. You want some proof via canceled check or money order receipt that you paid it.
(4) Pay it willingly and happily. This is for your child, which you had a part in creating. What a wonderful example to the child of your love if you demonstrate that you are happy to support them.
(5) Pay it because you love your child(ren).
(6) Pay it according to the latest court order. The latest court order dealing with child support controls.
(7) Pay it consistently. See numbers 1 and 2 above.
(8) Make it a priority. Pay it first. Its not paid only if you have money left over to pay it. Its paid even if you don’t have the money to pay your other bills.
(9) Understand that you ordinarily have no say in how the custodial parent spends the child support. Just because you pay child support does not give you the right to be a dictator as to how and when the money is spent on your child. However, if you find out the child support is being used to support an addiction such as drugs, alcohol, or gambling, continue to pay your child support but immediately seek legal advice for your options.
(10) Communicate with the custodial parent if a problem arises with regards to paying the child support on time. If you suddenly have a problem such as losing your job, reduced hours, etc., and you have been consistent with paying your child support, the custodial parent will be more understanding and willing to work with you until the problem is resolved. If you are not consistent, you are less likely to receive understanding and compassion from the custodial parent.
To learn more visit our website at http://www.showspowell.com/.
Thursday, June 3, 2010
Favorite Movie Line Regarding Cheating Spouses
From the movie "The Family Man" starring Nicolas Cage and Tea Leoni: "Fidelity Bank of Trust is a tough creditor. You make a withdrawal there and they close your account forever."
Lots of truth there.
Lots of truth there.
Monday, May 31, 2010
What Child Support is NOT
In a previous post, we discussed what child support IS. In this post we will list what child support IS NOT.
Child support is not:
(1) a condition that must be met in order for the non-custodial parent to see and visit with his/her children;
(2) under normal circumstances sufficient to cover the costs of all of the child’s needs;
(3) normally tax deductible;
(4) meant to cover medical expenses of the child which are not covered by health insurance;
(5) a right won by the non-custodial parent to control how the custodial parent spends the money;
(6) leverage by either parent for every conflict or disagreement between the parents;
(7) terminable at the pleasure or whim of the non-custodial parent;
(8) to be paid to the child;
(9) normally terminable absent a court order;
(10) assignable to a third party absent a court order;
(11) subject to garnishment by a creditor of the custodial parent;
(12) modifiable without a court order; and
(13) many other things that warring parents often try to make it be.
Following these two rules will keep you out of trouble 99% of the time:
(1) If you owe child support, pay it according to the order on time when its due.
(2) If you receive child support, utilize it for the support of the child.
To learn more visit our website at http://www.showspowell.com/.
Child support is not:
(1) a condition that must be met in order for the non-custodial parent to see and visit with his/her children;
(2) under normal circumstances sufficient to cover the costs of all of the child’s needs;
(3) normally tax deductible;
(4) meant to cover medical expenses of the child which are not covered by health insurance;
(5) a right won by the non-custodial parent to control how the custodial parent spends the money;
(6) leverage by either parent for every conflict or disagreement between the parents;
(7) terminable at the pleasure or whim of the non-custodial parent;
(8) to be paid to the child;
(9) normally terminable absent a court order;
(10) assignable to a third party absent a court order;
(11) subject to garnishment by a creditor of the custodial parent;
(12) modifiable without a court order; and
(13) many other things that warring parents often try to make it be.
Following these two rules will keep you out of trouble 99% of the time:
(1) If you owe child support, pay it according to the order on time when its due.
(2) If you receive child support, utilize it for the support of the child.
To learn more visit our website at http://www.showspowell.com/.
Remembering Our Service Men and Women on Memorial Day
Thank you for all of you who have served our country in the armed forces in the past, or who are serving the armed forces presently. We all owe a deep debt of gratitude for the sacrifices that both you and your families have made.
Wednesday, May 26, 2010
What is "Child Support"?
Child support is an amount of money paid by the non-custodial parent to the custodial parent or guardian for the expenses associated with the care and support of the minor child. The terms “care and support” encompasses shelter, food, clothing, medical care, school expenses, extracurricular activity expenses, etc., etc. Basically, the parent that is paying the child support is paying a court-ordered amount of money for their share of these basic living expenses of the child.
Child support is a court-ordered obligation. Child support is relied upon by the custodial parent in most instances just to “make ends meet”. Child support is paid to the custodial parent or guardian, unless otherwise redirected through the Department of Human Services.
If you are ordered to pay child support, pay it as ordered. The failure to pay child support as ordered is contempt, and the non-custodial parent who fails to pay as ordered can be incarcerated.
To learn more visit our website at http://www.showspowell.com/.
Child support is a court-ordered obligation. Child support is relied upon by the custodial parent in most instances just to “make ends meet”. Child support is paid to the custodial parent or guardian, unless otherwise redirected through the Department of Human Services.
If you are ordered to pay child support, pay it as ordered. The failure to pay child support as ordered is contempt, and the non-custodial parent who fails to pay as ordered can be incarcerated.
To learn more visit our website at http://www.showspowell.com/.
Monday, May 24, 2010
The “I’m Just Not That Happy Anymore” Divorce - Part 2
In my previous blog, I stated that Mississippi does not recognize “I’m just not that happy anymore” as a ground for divorce to enable the unhappy spouse to divorce the other spouse without the other spouse’s consent. Unfortunately, that is not the case in other states.
Many states recognize Irretrievable Breakdown of Marriage as a ground for divorce. Some states utilize this as a form of no-fault divorce - with the fault. In these states, so long as the unhappy spouse can convince the judge that the marriage is over with no hope of a reconciliation, and prove certain statutory factors, the unhappy spouse can get a divorce. This is irreconcilable differences on steroids.
Thank goodness this isn’t the law in Mississippi.
I’ve had the experience representing clients dealing with such a law in one of the states that recognizes Irretrievable Breakdown of Marriage as a divorce. Basically, the common scenario is as follows: The unhappy spouse decides that the wedding vows they took were not solemn enough to keep the vow, and therefore moves to a state recognizing such law, establishes residency for six months, and files for divorce on the grounds of Irretrievable Breakdown of Marriage. The other spouse, however, holds the belief that the wedding vows taken are solemn vows worthy of keeping. The end of the story is that the unhappy spouse gets what they wanted - a divorce on Irretrievable Breakdown of Marriage. The spouse wanting the marriage to work does not get what they want - they lose their marriage.
Of course, for this scenario to play out the spouse wanting out has to be willing to uproot their life and move to another state to establish the six month residency requirement.
And people say its too easy to get a divorce in Mississippi . . . try these other states for such easy divorce laws.
To learn more visit our website at http://www.showspowell.com/.
Many states recognize Irretrievable Breakdown of Marriage as a ground for divorce. Some states utilize this as a form of no-fault divorce - with the fault. In these states, so long as the unhappy spouse can convince the judge that the marriage is over with no hope of a reconciliation, and prove certain statutory factors, the unhappy spouse can get a divorce. This is irreconcilable differences on steroids.
Thank goodness this isn’t the law in Mississippi.
I’ve had the experience representing clients dealing with such a law in one of the states that recognizes Irretrievable Breakdown of Marriage as a divorce. Basically, the common scenario is as follows: The unhappy spouse decides that the wedding vows they took were not solemn enough to keep the vow, and therefore moves to a state recognizing such law, establishes residency for six months, and files for divorce on the grounds of Irretrievable Breakdown of Marriage. The other spouse, however, holds the belief that the wedding vows taken are solemn vows worthy of keeping. The end of the story is that the unhappy spouse gets what they wanted - a divorce on Irretrievable Breakdown of Marriage. The spouse wanting the marriage to work does not get what they want - they lose their marriage.
Of course, for this scenario to play out the spouse wanting out has to be willing to uproot their life and move to another state to establish the six month residency requirement.
And people say its too easy to get a divorce in Mississippi . . . try these other states for such easy divorce laws.
To learn more visit our website at http://www.showspowell.com/.
Wednesday, May 19, 2010
The “I’m Just Not That Happy Anymore” Divorce
Since I began practicing law I’ve heard numerous times a client tell me “I’m just not happy anymore and I want out of the marriage.” I’ve also heard numerous times a client talk to me from the other end of the spectrum: “My husband/wife wants out because he/she says they are just not happy anymore but I don’t want a divorce.”
Exactly what does “I’m just not happy anymore” mean? It might mean:
(A) I’m really just not happy anymore; or
(B) I’ve found someone else who is more exciting and makes me happy because they meet my needs (“the grass is always greener” syndrome).
In my experience, more times than not the “I’m just not happy anymore” spouse (“Unhappy”) is not happy because they are not free to openly have the relationship with the person they are newly involved with because they are married. Maybe this sounds cynical - but its true.
Mississippi law does not recognize as a grounds for divorce the “I’m just not happy anymore and want out” ground. Other states do (another topic for a later blog post).
In Mississippi, if Unhappy cannot prove one of the marital fault grounds for divorce, Unhappy must either get his spouse to consent to a divorce on irreconcilable differences or be prepared to stay married (and unhappy).
On the other hand, if “Happy” wants to keep the marriage intact, Happy can refuse to grant a divorce to Unhappy and make Unhappy try to prove that Happy is guilty of a marital fault ground.
I don’t ever remember a single wedding that I attended where the vows ended with “...so long as you both shall be happy”. Have you?
To learn more visit our website at http://www.showspowell.com/.
Exactly what does “I’m just not happy anymore” mean? It might mean:
(A) I’m really just not happy anymore; or
(B) I’ve found someone else who is more exciting and makes me happy because they meet my needs (“the grass is always greener” syndrome).
In my experience, more times than not the “I’m just not happy anymore” spouse (“Unhappy”) is not happy because they are not free to openly have the relationship with the person they are newly involved with because they are married. Maybe this sounds cynical - but its true.
Mississippi law does not recognize as a grounds for divorce the “I’m just not happy anymore and want out” ground. Other states do (another topic for a later blog post).
In Mississippi, if Unhappy cannot prove one of the marital fault grounds for divorce, Unhappy must either get his spouse to consent to a divorce on irreconcilable differences or be prepared to stay married (and unhappy).
On the other hand, if “Happy” wants to keep the marriage intact, Happy can refuse to grant a divorce to Unhappy and make Unhappy try to prove that Happy is guilty of a marital fault ground.
I don’t ever remember a single wedding that I attended where the vows ended with “...so long as you both shall be happy”. Have you?
To learn more visit our website at http://www.showspowell.com/.
Monday, May 17, 2010
Custody and the Natural Parent Presumption in Mississippi
The Mississippi Courts presumes that the best interests of a child is that the child remains with the natural (biological or adoptive) parent as opposed to a third party. The presumption is that a natural parent should have custody of a child over third parties. And rightly so. Section 93-13-1 of the Mississippi Code states: “The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education...If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.”
However, this presumption that the child be in the custody of the natural parents is not an absolute right. This presumption goes away if it is proven that the natural parents have (a) abandoned the child, or (b) deserted the child, or (c) is proven to be otherwise unfit, and (d) if the best interest of the child dictates that a third party should be granted custody. If the presumption is overcome because of the conduct of the natural parents, the Court goes through its standard on-the-record analyses of the proof based on the Albright custody factors to determine whether the natural parents or the third party should be granted custody.
Such would be the analysis in the event that a stepparent and the natural parent fight over custody of the child of the natural parent from a previous relationship or marriage. In such instance, the stepparent may be deemed to be in loco parentis (see earlier post).
To learn more visit our website at www.showspowell.com.
However, this presumption that the child be in the custody of the natural parents is not an absolute right. This presumption goes away if it is proven that the natural parents have (a) abandoned the child, or (b) deserted the child, or (c) is proven to be otherwise unfit, and (d) if the best interest of the child dictates that a third party should be granted custody. If the presumption is overcome because of the conduct of the natural parents, the Court goes through its standard on-the-record analyses of the proof based on the Albright custody factors to determine whether the natural parents or the third party should be granted custody.
Such would be the analysis in the event that a stepparent and the natural parent fight over custody of the child of the natural parent from a previous relationship or marriage. In such instance, the stepparent may be deemed to be in loco parentis (see earlier post).
To learn more visit our website at www.showspowell.com.
Friday, May 14, 2010
"In Loco Parentis" and How it Affects Child Custody and Child Support in Mississippi
In what situation in Mississippi may a third-party non-parent be subject to either (a) being ordered to pay child support for a child that is not theirs or (b) being awarded custody of the child over the natural parents?
The answer is “in loco parentis”. “In loco parentis” is a latin term which means “in the place of a parent”.
The person who is acting “in loco parentis” is a person who has assumed the status and obligations of a parent without a formal adoption. The Court has held that any person who takes a child of another into their home and treats that child as a member of their family, providing parental supervision, support and education for the child, as if the child were their own is said to stand “in loco parentis”.
An example is the case of Tedford v. Dempsey (437 So.2d 410). There the stepfather had over a period of time supported the children born to his wife from a previous marriage. The mother and children came to rely to their detriment on this support. The Court there held that it was in the best interests of the children to require the stepfather to pay child support. The Court stated in Logan v. Logan (730 So.2d 1124) that if a stepparent can be required to pay child support for a stepchild based on their support of the stepchild for a period of time, then if it is in the best interests of the children the stepparent should also be allowed to have custody of the stepchild. The Court stated that “with the burden should also go the benefit”.
However, the natural parent is presumed to be the proper parent for custody of the child in these cases. This presumption, however, can be overcome. This is another topic for another day.
To learn more visit our website at http://www.showspowell.com/.
The answer is “in loco parentis”. “In loco parentis” is a latin term which means “in the place of a parent”.
The person who is acting “in loco parentis” is a person who has assumed the status and obligations of a parent without a formal adoption. The Court has held that any person who takes a child of another into their home and treats that child as a member of their family, providing parental supervision, support and education for the child, as if the child were their own is said to stand “in loco parentis”.
An example is the case of Tedford v. Dempsey (437 So.2d 410). There the stepfather had over a period of time supported the children born to his wife from a previous marriage. The mother and children came to rely to their detriment on this support. The Court there held that it was in the best interests of the children to require the stepfather to pay child support. The Court stated in Logan v. Logan (730 So.2d 1124) that if a stepparent can be required to pay child support for a stepchild based on their support of the stepchild for a period of time, then if it is in the best interests of the children the stepparent should also be allowed to have custody of the stepchild. The Court stated that “with the burden should also go the benefit”.
However, the natural parent is presumed to be the proper parent for custody of the child in these cases. This presumption, however, can be overcome. This is another topic for another day.
To learn more visit our website at http://www.showspowell.com/.
Monday, May 10, 2010
Alienation of Affection - Is this an outdated Mississippi civil action - or is it relevant?
Mississippi law recognizes the civil action called "Alienation of Affection". Is alienation of affection an out-dated, old-tyme cause of action that should be done away with?
Let’s say you spent $25,000 for a new truck. Over the years you changed its oil, antifreeze, belts, purchased new tires for it, washed and waxed it a couple times a year, and safely locked it in a garage each night. You baby it, taking care to not accelerate or brake too hard. Over the years, you take care of it, investing your time, energy and money into keeping it looking and running great. You love your truck - it’s a part of you - perhaps even a part of your identity. . . Then someone takes your truck.
Or let’s say you spent $300 for a Labrador retriever puppy. Over the years, you feed it, play with it, train it, and it comes to be an integral part of your family. . .Then someone entices your beloved pet and loyal companion with some food, and the dog doesn’t come back home.
As absurd as these examples are, how much more would you hurt if someone did the same thing to you, taking your spouse (instead of your truck or your pet) whom you devoted your past and planned for the future with?
Alienation of affection lawsuits are as worthwhile a cause of action as personal injury actions - perhaps even more worthwhile. Except in cases involving alienation of affection actions the injury and loss to your emotional and physical well-being and those of the rest of the family can be just as devastating.
And if for no other reason, perhaps merely keeping the alienation of affection action will deter one person from interfering with and destroying a marriage. Isn’t it worth keeping for that reason alone?
Preserving a cause of action which may deter someone from interfering with your marriage (and which may have the effect of keeping families together) is not out-dated, backwoods, or old tyme at all. Instead, I think its very timely indeed.
To learn more visit our website at http://www.showspowell.com/.
Let’s say you spent $25,000 for a new truck. Over the years you changed its oil, antifreeze, belts, purchased new tires for it, washed and waxed it a couple times a year, and safely locked it in a garage each night. You baby it, taking care to not accelerate or brake too hard. Over the years, you take care of it, investing your time, energy and money into keeping it looking and running great. You love your truck - it’s a part of you - perhaps even a part of your identity. . . Then someone takes your truck.
Or let’s say you spent $300 for a Labrador retriever puppy. Over the years, you feed it, play with it, train it, and it comes to be an integral part of your family. . .Then someone entices your beloved pet and loyal companion with some food, and the dog doesn’t come back home.
As absurd as these examples are, how much more would you hurt if someone did the same thing to you, taking your spouse (instead of your truck or your pet) whom you devoted your past and planned for the future with?
Alienation of affection lawsuits are as worthwhile a cause of action as personal injury actions - perhaps even more worthwhile. Except in cases involving alienation of affection actions the injury and loss to your emotional and physical well-being and those of the rest of the family can be just as devastating.
And if for no other reason, perhaps merely keeping the alienation of affection action will deter one person from interfering with and destroying a marriage. Isn’t it worth keeping for that reason alone?
Preserving a cause of action which may deter someone from interfering with your marriage (and which may have the effect of keeping families together) is not out-dated, backwoods, or old tyme at all. Instead, I think its very timely indeed.
To learn more visit our website at http://www.showspowell.com/.
Thursday, May 6, 2010
What to Do if You Suspect Your Spouse is Cheating
1. Keep Your Mouth Shut. “Are you having an affair?” How stupid is that question! They are going to deny it, then start destroying evidence to cover up the affair. And any advantage that you may have gained has just been flushed down the toilet. You want your spouse to act as if you don’t know anything.
2. Act Like Nothing Has Changed. Maintain your same schedule, habits and demeanor. Don’t do anything to indicate you are suspicious. Most cheating spouses have a guilty conscience, and their “feelers” are out trying to determine whether you suspect anything. Acting like nothing has changed is hard, but in the end your efforts in keeping your emotions in check will result in a favorable outcome.
3. Collect Evidence. Look for emails, letters, telephone bills with recurring strange numbers on them, cell phone bills with recurring calls to/from the same numbers at odd hours and for long periods of time, and odd charges on credit card bills. Although hard to do because most cheating spouses are very protective of their cell phones, you need to try and check the text messages on your spouse’s phone. Check emails on the computer, and look at the history on the computer for where your spouse has been browsing. If your spouse has a facebook or myspace page, check the content on their pages and look at their “friends”. These “social networking” tools have become a rich source of evidence. If you see something suspicious, print the screen. Just as easy as it is to search these pages, it’s just that easy to delete the content.
4. Hire A Private Investigator. Meet with a detective and give him all of the evidence you have. Tell him about your spouse’s habits and customs. Tell him your spouse’s work hours, their habits, and places he or she likes to frequent. Give him a picture of your spouse and his or her car and tag number. If you have a suspicion about a particular person, give him a picture of that person, the type of car they drive, and a description of their work hours and habits. A good opportunity to have the private investigator to obtain evidence is while you and your children go out of town overnight or for the weekend. As the old saying goes: "While the cat is away. . ." Coordinate this with the investigator’s schedule so that the investigator can watch your spouse while you are gone.
5. Safeguard Your Finances. This goes hand in hand with looking at credit card statements. If your spouse is changing their spending habits, you may decide you need to cancel a credit card or limit their charging capabilities. Keep a close watch on any joint bank accounts and the activity on those accounts. With the accounts being joint, your spouse could go to the bank and empty that account, leaving the account zeroed out and you still writing checks (and causing NSF charges that amass quickly). Additionally, you should consult with an attorney to determine whether, or when, you should consider moving all or a portion of the money from the joint account to your own separate account.
6. Don’t Have Sex. If you know your spouse is having an affair, do not have sex with them. Doing so could constitute the defense of condonation (the root word is “condone”). This acts as legal forgiveness of the past marital misconduct. Consult with a lawyer once you have evidence of a relationship. Additionally, you do not want to risk contracting a sexually transmitted disease that your spouse may be picking up from their new lover(s).
7. Be Deliberate. The vengeful side of us all leads you to want to confront the offending spouse with your evidence of their adultery. Don’t do it. The information that is most useful is that which the offending spouse does not know you have. If needed, this evidence will come out at the proper time. Because of the hurt you will experience in this situation, you need to rely on the advice of your attorney who can assess the situation from an objective, rational, and non-emotional point of view. At this point in time, you will be incapable of being objective, rational, and non-emotional.
8. Consult with a Lawyer. Tell the lawyer everything – the good and the bad. The only bad information is that information that the lawyer does not have. Anything you tell the lawyer is protected by the attorney client privilege, which requires the lawyer to keep all information a secret between you and your lawyer.
To learn more, go to our website at http://www.showspowell.com/.
2. Act Like Nothing Has Changed. Maintain your same schedule, habits and demeanor. Don’t do anything to indicate you are suspicious. Most cheating spouses have a guilty conscience, and their “feelers” are out trying to determine whether you suspect anything. Acting like nothing has changed is hard, but in the end your efforts in keeping your emotions in check will result in a favorable outcome.
3. Collect Evidence. Look for emails, letters, telephone bills with recurring strange numbers on them, cell phone bills with recurring calls to/from the same numbers at odd hours and for long periods of time, and odd charges on credit card bills. Although hard to do because most cheating spouses are very protective of their cell phones, you need to try and check the text messages on your spouse’s phone. Check emails on the computer, and look at the history on the computer for where your spouse has been browsing. If your spouse has a facebook or myspace page, check the content on their pages and look at their “friends”. These “social networking” tools have become a rich source of evidence. If you see something suspicious, print the screen. Just as easy as it is to search these pages, it’s just that easy to delete the content.
4. Hire A Private Investigator. Meet with a detective and give him all of the evidence you have. Tell him about your spouse’s habits and customs. Tell him your spouse’s work hours, their habits, and places he or she likes to frequent. Give him a picture of your spouse and his or her car and tag number. If you have a suspicion about a particular person, give him a picture of that person, the type of car they drive, and a description of their work hours and habits. A good opportunity to have the private investigator to obtain evidence is while you and your children go out of town overnight or for the weekend. As the old saying goes: "While the cat is away. . ." Coordinate this with the investigator’s schedule so that the investigator can watch your spouse while you are gone.
5. Safeguard Your Finances. This goes hand in hand with looking at credit card statements. If your spouse is changing their spending habits, you may decide you need to cancel a credit card or limit their charging capabilities. Keep a close watch on any joint bank accounts and the activity on those accounts. With the accounts being joint, your spouse could go to the bank and empty that account, leaving the account zeroed out and you still writing checks (and causing NSF charges that amass quickly). Additionally, you should consult with an attorney to determine whether, or when, you should consider moving all or a portion of the money from the joint account to your own separate account.
6. Don’t Have Sex. If you know your spouse is having an affair, do not have sex with them. Doing so could constitute the defense of condonation (the root word is “condone”). This acts as legal forgiveness of the past marital misconduct. Consult with a lawyer once you have evidence of a relationship. Additionally, you do not want to risk contracting a sexually transmitted disease that your spouse may be picking up from their new lover(s).
7. Be Deliberate. The vengeful side of us all leads you to want to confront the offending spouse with your evidence of their adultery. Don’t do it. The information that is most useful is that which the offending spouse does not know you have. If needed, this evidence will come out at the proper time. Because of the hurt you will experience in this situation, you need to rely on the advice of your attorney who can assess the situation from an objective, rational, and non-emotional point of view. At this point in time, you will be incapable of being objective, rational, and non-emotional.
8. Consult with a Lawyer. Tell the lawyer everything – the good and the bad. The only bad information is that information that the lawyer does not have. Anything you tell the lawyer is protected by the attorney client privilege, which requires the lawyer to keep all information a secret between you and your lawyer.
To learn more, go to our website at http://www.showspowell.com/.
Friday, April 30, 2010
Tips for Paying Child Support in Mississippi
The following tips have been learned over many years of practicing family law and seeing the issues that arise in Mississippi courts when the custodial parent (the Payee) is claiming that the noncustodial parent (the Payor) is not paying their child support. Follow these tips and you (the Payor) will close the door on most, if not all, allegations that the custodial parent may make about you not paying your child support.
1. Always pay on time or early. This is the single most important thing you can do.
2. Always pay with either a check or money order. If paying with a money order, keep the receipt from the money order. The is the second most important thing you can do in the event there later becomes a dispute about your payment of child support.
3. If sending your child support payment through the mail, keep a copy of any correspondence you send with the child support.
4. Never send the child support check through the children. This is adult business, and you should never put the children in the middle of any child support obligation or dispute. Additionally, you should never discuss your child support with the children.
5. Your seeing the children is not a condition to paying your child support. Always pay your child support, even if your former spouse is creating obstacles with your visitation. Not paying your child support always looks bad in front of the Judge, regardless of the situation, and the Courts never find the excuse of not being able to visit with your children as acceptable to your not paying your child support. Stay on the high road.
6. Do not reduce your child support payments unilaterally for any reason. Before you reduce any child support payments (even if the former spouse agrees) a court order allowing such reduction must be in place. Don’t fall for this dirty little trick! (See my previous blog about why its important to get a court order approving any modification.)
7. If you have a reduction in income, immediately consult an attorney to see if you are entitled to a reduction in child support.
8. If you prefer, you may have your child support deducted from your pay via a withholding order. For some, this is preferable to having to write a check each month to your former spouse, with the additional benefit that it is not available to you to spend somewhere else because you never get it in the first place. However, once the withholding order is in place you cannot unilaterally decide later that you no longer wish your child support to be withheld from your paycheck. Additionally, employers are entitled to charge a small fee from the remainder of your check for their trouble associated with withholding your child support from your check.
To learn more, please visit our website at http://www.showspowell.com/.
1. Always pay on time or early. This is the single most important thing you can do.
2. Always pay with either a check or money order. If paying with a money order, keep the receipt from the money order. The is the second most important thing you can do in the event there later becomes a dispute about your payment of child support.
3. If sending your child support payment through the mail, keep a copy of any correspondence you send with the child support.
4. Never send the child support check through the children. This is adult business, and you should never put the children in the middle of any child support obligation or dispute. Additionally, you should never discuss your child support with the children.
5. Your seeing the children is not a condition to paying your child support. Always pay your child support, even if your former spouse is creating obstacles with your visitation. Not paying your child support always looks bad in front of the Judge, regardless of the situation, and the Courts never find the excuse of not being able to visit with your children as acceptable to your not paying your child support. Stay on the high road.
6. Do not reduce your child support payments unilaterally for any reason. Before you reduce any child support payments (even if the former spouse agrees) a court order allowing such reduction must be in place. Don’t fall for this dirty little trick! (See my previous blog about why its important to get a court order approving any modification.)
7. If you have a reduction in income, immediately consult an attorney to see if you are entitled to a reduction in child support.
8. If you prefer, you may have your child support deducted from your pay via a withholding order. For some, this is preferable to having to write a check each month to your former spouse, with the additional benefit that it is not available to you to spend somewhere else because you never get it in the first place. However, once the withholding order is in place you cannot unilaterally decide later that you no longer wish your child support to be withheld from your paycheck. Additionally, employers are entitled to charge a small fee from the remainder of your check for their trouble associated with withholding your child support from your check.
To learn more, please visit our website at http://www.showspowell.com/.
Monday, April 26, 2010
Why its important to modify an existing Court Order in Mississippi
So you and your ex-spouse have divorced. You have a court order in place from a Mississippi court outlining what each of your respective rights, duties and obligations are. And afterward, you both decide that what the Court ordered, or in many instances what you each agreed to do, is now not what each of you want.
Can you just decide to agree to do something else? Of course you can. But doing so has strings attached - long, slimy, sticky strings that may eventually get you tangled up. Think of an attacking octopus with its 8 legs, each with those suction cups flailing around trying to grab you and not let you go. Can you see it?
Doing something that is different than what the Court has ordered is ok in only one situation: when you get the previous order modified by a new order from the Court. To do otherwise is running the risk (which you should not take) that you and your ex-spouse are going to agree on all future issues (and if you have children together that is NOT going to happen).
If you and your ex-spouse don't follow through and get the new agreement reduced to a Court order, your ex-spouse can later ask the Court to hold you in civil contempt. Civil Contempt is the willful failure to follow an unambiguous court order. To prove that you are guilty of civil contempt, all your ex-spouse has to do is to show that you failed to comply with the Court order.
A common example is: Ex-husband and ex-wife had a child during the marriage. Wife gets custody of the child during the divorce, and husband has to pay child support. Now the child is 14, giving the mother fits because teenage ego and hormones are in full swing, and sends the child to live with the father. Mother agrees that while the child lives with the father that the father need not pay the Court ordered child support. They don't go to Court to get an order relieving the father of the child support obligation. After a few months, the teenager decides that he/she had it better over at mom's house, and decides to move back in with the mother. Somewhere along the way, ex-husband and ex-wife gets into a dispute over something. So ex-wife proves to ex-husband that she has the upper hand by filing a contempt action against ex-husband for failure to pay child support (during the months that the child resided with ex-husband). Ex-wife can easily prove what she needs to for contempt. Even though ex-husband will likely be able to avoid liability for the contempt action, he will still necessarily incur legal fees and heartache, not to mention time off from work, because his ex-wife got angry.
Moral of the story: Always, always, always go to the trouble of getting a court order modifying anything that you and your ex-spouse has agreed upon to avoid the sticky octopus arms. The expense of getting a lawyer to draft up an Agreed Order that both of you sign pales in comparison to the expense and stress you will incur in defending a contempt action.
Final thought: Just because you and your ex-spouse type something up, sign it, and have it notarized is not sufficient to modify a court order.
To learn more visit our website at http://www.showspowell.com/.
Can you just decide to agree to do something else? Of course you can. But doing so has strings attached - long, slimy, sticky strings that may eventually get you tangled up. Think of an attacking octopus with its 8 legs, each with those suction cups flailing around trying to grab you and not let you go. Can you see it?
Doing something that is different than what the Court has ordered is ok in only one situation: when you get the previous order modified by a new order from the Court. To do otherwise is running the risk (which you should not take) that you and your ex-spouse are going to agree on all future issues (and if you have children together that is NOT going to happen).
If you and your ex-spouse don't follow through and get the new agreement reduced to a Court order, your ex-spouse can later ask the Court to hold you in civil contempt. Civil Contempt is the willful failure to follow an unambiguous court order. To prove that you are guilty of civil contempt, all your ex-spouse has to do is to show that you failed to comply with the Court order.
A common example is: Ex-husband and ex-wife had a child during the marriage. Wife gets custody of the child during the divorce, and husband has to pay child support. Now the child is 14, giving the mother fits because teenage ego and hormones are in full swing, and sends the child to live with the father. Mother agrees that while the child lives with the father that the father need not pay the Court ordered child support. They don't go to Court to get an order relieving the father of the child support obligation. After a few months, the teenager decides that he/she had it better over at mom's house, and decides to move back in with the mother. Somewhere along the way, ex-husband and ex-wife gets into a dispute over something. So ex-wife proves to ex-husband that she has the upper hand by filing a contempt action against ex-husband for failure to pay child support (during the months that the child resided with ex-husband). Ex-wife can easily prove what she needs to for contempt. Even though ex-husband will likely be able to avoid liability for the contempt action, he will still necessarily incur legal fees and heartache, not to mention time off from work, because his ex-wife got angry.
Moral of the story: Always, always, always go to the trouble of getting a court order modifying anything that you and your ex-spouse has agreed upon to avoid the sticky octopus arms. The expense of getting a lawyer to draft up an Agreed Order that both of you sign pales in comparison to the expense and stress you will incur in defending a contempt action.
Final thought: Just because you and your ex-spouse type something up, sign it, and have it notarized is not sufficient to modify a court order.
To learn more visit our website at http://www.showspowell.com/.
Monday, April 19, 2010
So You’ve Found Evidence of Infidelity on your Spouses Computer. . .
As mad as you may be, DON’T THROW IT AWAY and DON’T CONFRONT YOUR SPOUSE. This is the single biggest mistake I hear from people (mostly men) who have found information on their spouse’s computer which indicates a relationship. While many people today feel that their home computer has become a necessity, it has also opened up a wide community of people at the stroke of a keyboard looking to “connect” with others. This “connection” is leading more and more marriages to divorce. Online chat rooms, dating sites, pornography, social networking sites, free email accounts, etc. has contributed to many failed marriages. While the offending spouse begins innocently flirting, that innocent flirting often times turns into something more serious - a relationship. They feel that their new “connection” listens, understands, cares.
When you come across information that indicates that your spouse may be cheating, don’t react outwardly. Do the following: (1) Breathe. (2) Don’t let on to your spouse that you have any suspicions. (3) Find a time when you can safely search the computer for other evidence of the relationship. When you find something that indicates the relationship exists, print it. Also, if you are computer savvy, save the information to a cd or other media. Keep looking until you are satisfied that you have found as much as you can. Then remove what you’ve found from the home and keep it safely where your spouse will not find it. (It does you no good to do all of this only for your spouse to find it and destroy it.) (4) Don’t let on to your spouse that you have any suspicions. (I know, I’ve already said this. Its really important.)
Then, call us. Let’s explore what options you have. We may want you to remove your computer and have it forensically examined for more evidence by a professional. While this is occurring, you can consider what your next step is, be it confronting your spouse with the idea of counseling and reconciliation, or proceeding with a divorce. Either way, we can help.
To learn more visit our website at http://www.showspowell.com/.
When you come across information that indicates that your spouse may be cheating, don’t react outwardly. Do the following: (1) Breathe. (2) Don’t let on to your spouse that you have any suspicions. (3) Find a time when you can safely search the computer for other evidence of the relationship. When you find something that indicates the relationship exists, print it. Also, if you are computer savvy, save the information to a cd or other media. Keep looking until you are satisfied that you have found as much as you can. Then remove what you’ve found from the home and keep it safely where your spouse will not find it. (It does you no good to do all of this only for your spouse to find it and destroy it.) (4) Don’t let on to your spouse that you have any suspicions. (I know, I’ve already said this. Its really important.)
Then, call us. Let’s explore what options you have. We may want you to remove your computer and have it forensically examined for more evidence by a professional. While this is occurring, you can consider what your next step is, be it confronting your spouse with the idea of counseling and reconciliation, or proceeding with a divorce. Either way, we can help.
To learn more visit our website at http://www.showspowell.com/.
Friday, April 16, 2010
Domestic Violence in Mississippi
Domestic violence is not just an act of violence by a man toward a woman, or by a husband toward his wife. It is becoming more and more common that the abuser may also be the woman toward a man, the wife toward her husband. Domestic violence can occur in same-sex relationships. Domestic violence is violence between any of the following people:
(1) Spouses;
(2) Former spouses;
(3) Persons living together as spouses;
(4) Persons who used to live together as spouses;
(5) Persons having children together;
(6) Persons who are dating; and
(7) Persons who used to date each other.
Domestic violence can take any of the following forms:
(1) Attempting to cause harm to another;
(2) Intentional, knowing or reckless harming of another;
(3) Placing another in fear of harm by threat or physical menace;
(4) Criminal sexual conduct against a minor;
(5) Stalking and cyberstalking; and
(6) Other criminal sex offenses.
Domestic violence occurs every hour of every day. The main reason an abuser commits these acts is to control the other.
If you are a victim of domestic violence, you should seek help for yourself. There are resources available to you. One resource in Central Mississippi is The Center for Violence Prevention (601-932-4198). You may be able to obtain a Domestic Abuse Protection Order preventing your abuser from coming near you.
Additionally, you should not be afraid to call local law enforcement. Although you may fear retribution from your abuser, this will assist you in documenting the violence, and this is often a good first step toward getting free from the abuser.
If you are the victim of domestic violence, male or female, contact us to see what options are best for your situation. Also, to learn more about domestic violence, visit our website at http://www.showspowell.com/.
(1) Spouses;
(2) Former spouses;
(3) Persons living together as spouses;
(4) Persons who used to live together as spouses;
(5) Persons having children together;
(6) Persons who are dating; and
(7) Persons who used to date each other.
Domestic violence can take any of the following forms:
(1) Attempting to cause harm to another;
(2) Intentional, knowing or reckless harming of another;
(3) Placing another in fear of harm by threat or physical menace;
(4) Criminal sexual conduct against a minor;
(5) Stalking and cyberstalking; and
(6) Other criminal sex offenses.
Domestic violence occurs every hour of every day. The main reason an abuser commits these acts is to control the other.
If you are a victim of domestic violence, you should seek help for yourself. There are resources available to you. One resource in Central Mississippi is The Center for Violence Prevention (601-932-4198). You may be able to obtain a Domestic Abuse Protection Order preventing your abuser from coming near you.
Additionally, you should not be afraid to call local law enforcement. Although you may fear retribution from your abuser, this will assist you in documenting the violence, and this is often a good first step toward getting free from the abuser.
If you are the victim of domestic violence, male or female, contact us to see what options are best for your situation. Also, to learn more about domestic violence, visit our website at http://www.showspowell.com/.
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