THE TWELVE DAYS OF CHRISTMAS: TWELVE TIPS FOR A GOOD HOLIDAY

Our clients have told us in the past that certain times are worse than others. For example, Sundays, birthdays, and Holidays seem to amplify the pain of separation and divorce. It is important to recognize that this could happen to you and accept it as normal, but also take some steps to prevent or lessen the pain. Here are some tips, with thanks to Parents/Kids Magazine, Dr. Walt Frazier, and Dr. Chris Lott.

1. Make a list of the persons that are supportive of you. Reach out to these persons during the Holidays. Keep your network of support close to you. Take time to write personal notes to these special people in your life.
2. Be sure to give yourself a gift. It should be a pampering type gift such as a day off, a massage or manicure, a weekend getaway, or a visit with an old friend by phone or in person.
3. Watch: It’s a Wonderful Life.
4. Keep things simple. Limit how much you ask of yourself in terms of planning parties. Eliminate some activity that you just don’t need to do. 
5. Exercise. Exercise releases stress and produces chemical changes in our bodies which create a sense of well-being.
6. Eat well and refrain from overusing alcohol. Its okay to splurge a little at a holiday party, but keep your focus on daily nutrition. Remember to eat a healthy breakfast (yogurt, strawberries, wheat toast) and a healthy lunch (grilled Atlantic salmon and green vegetables). If you feel yourself suffering from headaches, lack of energy, digestive problems, heart burn, etc., eat something “living” like fruit or vegetables.
7. Remember this season is spiritual. Throw yourself into your worship center.
8. Serve others. Studies show that service and charity produce positive, healthy changes in our minds, bodies and spirits.
9. Don’t spend too much. Shopping and buying gifts produces a positive feeling, but the damage of spending too much will last much longer. The high of buying is similar to the high of sugar. It is a high, but it won’t last and it will lead to a let down, particularly when the credit card bills come in.
10. If you find yourself in the doldrums, take out a pencil and paper and make a list of positive things happening in your life. You will be amazed at how many great things are going on in your life, even though there are some painful things going on. This is absolutely guaranteed to lift your spirits.
11. When dealing with the other parent, think in terms of what the children would like. Try to think about this as though the marital trouble was not happening. My experience tells me that children just really love it when their parents put their animosities to the side for special occasions. A visit to Church on Christmas Eve with the whole family would probably be something they would cherish forever. If you have superior funds to the other spouse, offer to contribute some money for Christmas gifts. Yield some special time to the other parent when possible.
12. Don’t expect too much. We all expect that we are supposed to feel some kind of magical joy during a holiday. This creates negative pressure. Resolve to let the joy of the holiday come to you. It cannot be created and many positive memories of the past will always be that: memories to be cherished, but perhaps never to be re-lived. And, that is okay.

INTERSTATE JURISDICTION AND RELEASE OF JURISDICTION FOR FORUM NON CONVENIENS

One of the hardest areas of law to understand seems to be interstate jurisdiction, when, in fact, if it is applied correctly, it can be quite simple. Basically, once a court renders a divorce and custody order, it retains jurisdiction of the matter as long as one of the parties remains in the state. For example, if Mississippi renders a custody order, it retains jurisdiction even if both Mom and the children move to Texas. There is an emergency jurisdiction exception where danger to a child is shown. If both parties leave, then Mississippi loses jurisdiction. The Uniform Law (Uniform Child Custody and Jurisdiction Enforcement Act) that applies to such situations allows a state to give up its jurisdiction if it makes more sense for another state to hear the matter.

This point was illustrated in the recent decision of Yeager v. Kittrell, NO. 2008-CA-01783-COA (Decided December 1, 2009). In that case, Mississippi was the state where the original custody decree was rendered, giving Mom custody. Later, the Mississippi Court changed custody to the Father who had moved to Texas. After the Father got custody, he asked the Mississippi Court to transfer jurisdiction to Texas. The Mississippi Court relinquished its jurisdiction, finding that since the child was in Texas, issues pertaining to the child would be best heard in Texas.

SIGNS THAT PEOPLE ARE HIDING ASSETS OR PREPARING FOR DIVORCE...

Be on the lookout for these techniques that do not involve secret or off shore accounts.

1. Taxes – allow the accumulation of back taxes. Fail to pay property taxes.
2. Trusts – create family or other trusts.
3. Purchases with joint assets, such as cosmetic surgery, clothes, appliances, home remodeling, automobiles.
4. Paying off of debt with joint assets.
5. Driving up personal business debt with a capital expansion or inventory or equipment purchase.
6. Purchase of an expensive home.
7. Leaving cash in a company.
8. Accumulating cash.
9. Movement of joint funds to children’s funds, such as prepaid tuition, 529 plans, trusts, and advanced payment of private school tuition.
10. Paying high retainers to attorneys, detectives and other experts.
11. Over-withholding on wages for taxes.

FATHERS ARE GAINING GROUND IN CUSTODY

Reports indicate that fathers are gaining ground in custody disputes, and this seems to be true, but Mississippi still presumes a mother is generally better suited to raise a young child under the “tender years doctrine.”

The New York Times reported on November 17, 2009 on a growing phenomenon of fathers “winning”custody cases. They quote an article in Working Mother Magazine called “Lost Custody” about the “new reality of working mothers.” The article states that there are an estimated 2.2 million women in American that do not have primary custody and that 50% of fathers who seek custody in disputed divorces are granted it. The article focuses on the fact that women are working as much as men today, and that has tipped the scales from other eras when women were not working outside the home.

Certainly, the trend of working mothers is taking place in Mississippi as much as anywhere else, and it is my experience that fathers are gaining ground in attempts to secure joint custody, if not primary custody. When people ask me what will happen in a contested custody matter, I usually refer them back to how the parenting has been done before the divorce. If Dad has been a primary care giver or has been equally involved prior to the divorce, this will play a big role in the Court’s decision.

One rule still exists in favor of the Mother and that is the “tender years doctrine.” Under that doctrine, it is presumed that a Mother is better suited to raise young children. The terms “Tender years” and “Young children” have not been specifically defined, but we do have precedent that a child of seven years is past the age where the presumption applies. Mayfield v. Mayfield, 956 So. 2d 337 (Miss. Ct. App. 2007). See: Benal v. Benal, NO. 2008-CA-01181-COA (Decided November 17, 2009) (holding that the tender years doctrine did not apply to a child 8 years of age). All in all, the role that parents actually played prior to divorce is the most significant indicator in this practitioner’s mind.

DIVORCE ON THE GROUND OF CRUELTY IS DIFFICULT TO ACHIEVE

One of the hardest concepts for divorce client’s to accept is that Mississippi is not a “no fault” state. Mississippi does not permit a divorce unless both parties agree or unless one party has “fault grounds” such as adultery, cruelty, drunkenness, or abuse of drugs. Many cases would fall under the cruelty grounds, but the Courts have made it difficult for people to obtain a divorce on such grounds. One of the biggest problems that people face is that cruelty often does not have witnesses to what they experience. Two recent cases demonstrate this situation.

Habitual Cruel and Inhuman Treatment is conduct which endangers life, limb or health rendering the relationship unsafe for the party, or is so revolting as to render it impossible for the spouse to remain in the marriage.

In Hoskins v Hoskins, NO. 2008-CA-01369-COA (Decided November 10, 2009) Mary Hoskins was denied a divorce on the ground of cruelty. She contended her husband told her he hated her and despised her, threatened to kill her and demanded she leave the home. Mary testified her husband touched her on the nose and said, “I’m going to kill you.” Mary also testified that he once threatened to rape her. Mary testified that her husband’s treatment caused health problems such as trouble sleeping, and high blood pressure. The Court affirmed the denial of Mary’s claim to divorce for lack of corroboration. The Court noted that while corroboration is generally required, there is an exception where corroboration is not possible. In this case, the Court noted that the parties two children lived in the home and should have been able to corroborate some of her testimony but they did not testify.

In contrast, is the case of Price v. Price, NO. 2008-CA-01802-COA (Decided November 10, 2009). In that case, James Price obtained a divorce on cruelty from Eula. He testified that the police were called the home three times. In one incident, Eula attacked him, kicked him in the buttocks, punched him in the back and tried to bite off his finger. Eula was also indicted on a charge of false pretenses. When Eula left the marital home, she discharged a fire extinguisher in the home, ruining James’ belongings. James’ 15 year old son from his first marriage corroborated James’ testimony. Based upon that corroboration, he was granted a divorce.

Witnesses to cruelty are a must. Unfortunately, this may mean that the children must be called as witnesses. Many people argue this burden of proof should be changed because it traps people in marriages that are unhealthy. The Court takes the position that it is the burden of the Legislature to change this.

The Constructive Divorce

There is a need for a complete review of how we are handling litigation in general and divorce cases in particular. It is my opinion, after 31 years of practice, that law practice has taken a terrible turn away from serving clients’ needs and serving as true counselors for clients. The change that is called for lies in alternative dispute resolution such as mediation, collaborative law, and arbitration. The change also lies in a complete revision of the way we treat people and handle situations in the litigation environment.


Family law cases involve families. This means that the handling of the family law case impacts lives. And the lives are not just impacted for a certain situation, they are impacted for the rest of their lives. In light of this tremendous impact on lives, family lawyers have a unique and particular responsibility to look for ways to make the family law case resolve in a constructive manner.

See my recent article in The Mississippi Lawyer, the Mississippi Bar’s official publication.
http://www.chinnandassociates.com/articles/constructive.html

Divorce Attorneys Fees May Be Tax Deductible

Many people are not aware that a portion of their attorneys fees in divorce related litigation or settlement may be deductible for income tax purposes. Every person involved in such a matter should consult with their CPA on the front end to see what types of attorneys fees are deductible. Once that is determined, clients should ask their attorneys to identify those types of expenses in their billing as they work on the case. This will assist in obtaining the deduction with the IRS.

This is a complicated area with many intricate “in’s and out’s.” For example, a recent tax ruling held that fees in a divorcing couple’s dispute over the character of property as marital or non-marital were not deductible, but those fees attributable to collecting a share of the rents from the real estate were deductible. (The Kiplinger Tax Letter, citing Est. of Melcher, TC Memo. 2009-210)

Relocation? Beware: The Landscape in Mississippi is Changing!

In the first two decades of my practice, I was able to confidently advise my clients that they had the right to move any where they wanted with their children. The Courts in most states, and certainly in Mississippi, favored a so-called Constitutional “right to travel.” In the intervening years, there have been many changes in the statutes and case laws of many states, some prohibiting changes in residence without court permission. Many states prohibit moving a child to another state, even if there is no court action pending and no court order in place. In Mississippi, there is no law preventing a parent from taking a child anywhere they want when there is no custody order in place.

Even though Mississippi has no statutes in place regarding relocation, it is clear that the landscape has changed regarding an unabridged right to move. This seems consistent with national trends. The recent case of McCullough v McCullough, No. 2008-CA-00029-COA (October 6, 2009) is illustrative of the point. In that case a “stay-at-home Mom” lost custody of her two young children. Among the factors involved were her attempt to take the children from Mississippi to Maine, after a divorce action was filed, but before any order was entered. When the matter of the move was brought to the Court’s attention by Motion of the Father, the Chancellor ordered the Mother to immediately return the children to Mississippi and granted temporary custody to the Father. There are many resources on this difficult topic. One excellent resource is the ABA Family Law Section’s Spring, 2006 issue of the Family Advocate which may be ordered by contacting Deborah Eisel at eisel@sbcglobal.net.

Blog–Check Your “Spam Box” Daily

In recent weeks I have run into more and more situations where people have not responded to e-mails, and then I have later learned from them that my e-mail may have been sent to their “spam box” because of some company policy or other quirk. This happened lately with a client who said she had not received several e-mail's sent from my office over the last two months. This “IT situation” was hilighted in a recent article in the ABA’s GPSolo magazine, September, 2009 in an excellent article by Dan Pinnington and Reid F. Trautz. The article may be accessed on the link below. Credit these authors with the excellent suggestions to check your spam box daily and to double-check with people on the receipt of very important e-mail communications.


http://www.chinnandassociates.com/articles/aba_tech_gotchas.pdf

Young Mothers Beware: An Affair Can Cost You Custody

Custody determinations in Mississippi are governed by the twelve “Albright Factors.” Among these factors are “moral fitness” and the “willingness and capacity to provide primary care.” There is little question that the simple fact of an affair by a Mother does not mean she will lose custody. Our courts have clearly stated that it is not the purpose of our laws or courts to “punish adultery, [but] it is a factor in awarding custody of minor children.” While all factors must be taken into consideration, an affair can cost a young mother custody where the affair interferes with her willingness or capacity to care for the children.

The recent case of Montgomery v. Montgomery, NO. 2008-CA-00641-COA (Decided Sept. 29, 2009) emphasizes that point. In that case, the young mother of four was spending so much time on the telephone and away from her children that the father was forced to assume the primary care of the children. Later, she left the marital home and left the children with the father. Again, all of the 12 factors are important and the final criteria is the best interests of the children, but persons desiring custody must take care that their affair does not take them away from the primary obligation to care for the children.