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/.

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. 

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/.

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/.

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/.

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.

"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/.

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/.

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/.