Monday, April 21, 2014

GRANDPARENT VISITATION DOES NOT APPLY TO GREAT GRANDPARENTS

The Mississippi statute allowing grand parent visitation defines “grand parent” as the parent of the parents.  It therefore does not include great grandparents.  Lott v. Alexander, No. 2013-CA-00104-COA (3/11/14)

Wednesday, April 16, 2014

JUST BECAUSE PROPERTY IS NON-MARITAL DOES NOT MEAN SHOULD NOT BE CONSIDERED

A lot of clients do not think they need to disclose the contents or value of separate property or non-marital property. This is not the case. Parties are obligated to disclose and value all of their assets whether they are marital or non-marital. In the end, the analysis of a proper division takes into consideration the separate property even though the separate property will not be divided.

In a recent case, the Court of Appeals justified a better than 50% division of marital property to the wife on the grounds the husband had considerable non-marital property in his name. The Court reiterated that “equitable division” does not mean “equal division” and found the division fair. Roberts v. Roberts, NO. 2012-CA-01523-COA (4/1/14)

Monday, April 14, 2014

WARNING FOR CHILD SUPPORT PAYERS: DOCUMENT, DOCUMENT, DOCUMENT!

Thirty years ago I represented a yard man who was sued by his wife for back-due child support going back 20 years. The wife testified as to the amount of support and said the man never paid. The man was a yard man who made an honest living but did not have a checking account. He scraped together a few money order receipts for support but that was about all he could come up with. In what I still regard as one of the most inequitable rulings ever, the Judge found this poor man in contempt because he couldn't prove he had made payments and certainly could not prove he made payments 15-20 years ago. The Judge ruled it was his burden.

Despite the inequity of the ruling, it was right in a legal sense. All payors of obligations must know that it will be their burden to show they made payments they were supposed to make. All payments should be made by check or other means which can be clearly documented. Automatic deposits in bank accounts is a great method. Documentation as to the nature of the payment should be clear. Payments for different things should not be combined in one check or payment, but separated: e.g., payments for medical reimbursement in one check, payments for school activities in another, and child support in another. Roberts v. Roberts, NO. 2012-CA-01523-COA (4/1/14)

Wednesday, April 9, 2014

A MISGUIDED BUSINESS VENTURE CAN BE REGARDED AS MARITAL WASTE

There are many circumstances in divorce cases where clients complain their spouse invested money unwisely in ventures. Many times, lawyers advise and courts find that the misguided investment is a risk both parties bare and neither party should be reimbursed–so to speak–for the lost investment. The reasoning is that the venture could have turned a profit and there would have been no claim then that the money should not have been invested. However, lawyers and clients should not just dismiss arguing that foolish or near-frivolous investments constitute a form of marital waste for which the marital estate should be “reimbursed.” Recently, a Mississippi Gulf Coast Chancellor was affirmed in making a man pay back to the divorcing wife one-half of money the man had invested on his own in what the Judge characterized as a “frolic.”
Roberts v. Roberts, NO. 2012-CA-01523-COA (4/1/14)

Monday, March 31, 2014

TENNESSEE RULING REINFORCES INEVITABILITY OF SAME-SEX MARRIAGE

I previously blogged that there would be a cascade of rulings eroding ant-gay laws:


Another ruling just came down from the federal district court in Tennessee which granted a preliminary injunction against the enforcement of Tennessee's constitutional and statutory provisions against recognition of same-sex marriages from other states. Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014).

The opinion cited most of the relevant post-Windsor federal court case law, noting that the federal courts have so far unanimously held that the states are not permitted to restrict marriage to persons of the opposite sex, and finding a likelihood that the plaintiff will prevail on the merits.

Thanks to Brett Turner of National Research Group, pre-eminent research specialist, research@nlrg.com.

Monday, March 24, 2014

HOW TO HIRE A LAWYER WITHOUT BEING DETECTED

Most of the time, divorce clients should contact their lawyer without their spouse knowing it. Early advice without detection can be critical. The technology of today has made finding and hiring a lawyer without detection difficult. Here are some tips:
  1. Don’t look for your lawyer on an internet connection traceable to you. Phones, tablets, and computers create a “search history” which can be discovered. Even if you know your spouse will not have access to the particular device, they may be able to see your searches through the cloud or other remote technology. (If you are familiar with it, you can enable “incognito mode” and search without leaving a history).
  2. Don’t call you lawyer on your cell phone. Cell phones leave a call history. Cell phone bills can be checked at any time over the internet to discover call history.
  3. Don’t pay your lawyer with checks or credit cards to which your spouse will have access to statements or computer access to payment records.
  4. Don’t take your cell phone to the appointment, as many cell phones are equipped with GPS which could allow your spouse to track your movements.

Wednesday, March 19, 2014

CAN’T GET DIVORCED IN MISSISSIPPI? TRY ANOTHER STATE.

Mississippi requires either mutual agreement to divorce or that one party have what are known as “fault grounds” such as adultery, cruelty, drunkenness, or use of drugs. The requirement for fault puts many people in a position where they cannot get the other party to agree to a divorce and cannot get a divorce because they do not have a “fault ground.” This leaves parties stalemated in unhappy marriages.

One solution is to move to another state where fault grounds are not required and obtain a divorce there. Many people chose states that have short residency requirements and no fault ground requirements for divorce such as Montana, and Nevada. Southeastern states such as Alabama, Texas, and Florida have relatively short residency requirements and are “no fault” states. If the state considers the residence legitimate, it can move forward to divorce, but may not be able to decide custody or property issues without what is known as personal jurisdiction.

Once a party divorces in another state, they can return to Mississippi and request a decision on the other parts of the marriage, such as custody and property division. See: Pierce v. Pierce, No. 2012–CA–01966–SCT (2/20/14)

Monday, March 17, 2014

OPENNESS IN GOVERNMENT IS KEY TO FREEDOM

Freedoms seemingly basic to us have been fought for and do not exist in Russia or Crimea today. We take for granted our open access to our government. March 16 was “Freedom of Information Day,” and we are reminded that the fourth U.S. President, James Madison, was responsible for the introduction of the Bill of Rights.

All court proceedings are open to the public. Most records are available to the public. Meetings of public boards are open to the public, with certain logical exceptions. This freedom to access our government was fought for at the beginning and is a continuing battle.

I, personally, was involved in 1979 in the drafting of the Mississippi Open Records and Open Meetings Laws. We take these laws for granted today, but the Legislators who passed these bills had to have the forward-thinking and the will to fight for these freedoms. What we take for granted today was a battle in 1979. All credit goes to State Senator Carroll Ingram and Lieutenant Governor Evelyn Gandy. America marches on as the leader of freedom and must remember it is a continuing battle.

Wednesday, March 12, 2014

18 YEAR-OLD N.J. GIRL WILL NOT WIN HER SUIT AGAINST HER PARENTS. THE STATE WILL NOT SUPPORT A DISOBEDIENT CHILD.

Rachel Canning
CARLO ALLEGRI/REUTERS/LANDOV
18 year-old New Jersey school girl Rachel Canning's suit will fail in court and will succeed in ruining her family and that important part of her future. She may think she is the first one to think of such action, but she is far from it. There are not many of us that did not run away from home at some point in our lives to a sympathetic neighbor's house trying to avoid family discipline. However, most of us do it at age three. This spoiled brat and her enabling and meddling adult friends are doing it at age 18.

While the Youth Courts of most states are charged with making sure parents do not neglect their children, this is not one of those cases and Rachel is going to lose. The New Jersey trial Judge correctly pondered if this type of suit was going to open the flood gates for suits by children to get particular presents from their parents. In 1919, a Mississippi Court said exactly the same thing in denying the suit of six children against their father, stating, “We are not opening the door of the courts to any unruly or disobedient child who may complain at either the amount or kind of support provided by a father. Rawlingsv. Rawlings, 121 Miss. 140, 148 (1919) This legal position has been back up in subsequent decisions, such as ones denying college support for children who refuse to have a relationship with the parent from whom they seek payment for the privilege.

One final query: children must normally bring suits through adults such as parents or guardians. Therefore, either Rachel is not legally competent to bring the suit on her own, or, if she believes she is legally competent to pursue legal relief without her parent’s consent, then she is surely emancipated enough to support herself, too.

Monday, March 10, 2014

AN INCREASE IN VALUE IN SEPARATE PROPERTY CAN BE CONSIDERED MARITAL PROPERTY

Let’s assume a person has a company that was clearly started before the marriage, maybe even with inherited funds or by gift. This company is not a marital asset. However, if the company increases in value during the marriage, that increase in value can be considered a marital asset.

The key inquiry is whether the spouse took effort during the marriage in increasing the value of the company. Factual situations can very significantly, but, generally, when a spouse actively participates in the company, that active participation is considered “marital effort” and the increase in the value of the company is “marital.”

One way to help us look at it is the difference between a spouse owning stock in Coca Cola versus stock in a small family store. The increase in the Coca Cola stock is not due to the efforts of the spouse, but to the “passive” forces of the market, and will not, therefore, be marital property. However, the spouse’s efforts in a small family-owned business which contribute to the increase in the value of the business will be marital and therefore divisible under equitable distribution.

Such situations require valuation of the business both at the time of the marriage and at the time of divorce, and perhaps expert testimony on the reasons for the increase in the value of the marriage. For a Mississippi case on the subject, see: A & L, Inc. v. Grantham, 747 So. 2d 832, 839 (Miss. 1999).