Mark Chinn's Family Law Blog

WHAT TO DO WITH AN ARMED INTRUDER

2012-01-30T14:08:00.001-06:00

I believe lawyers are at particular risk for an armed intruder. Every law office should have a specific plan for dealing with armed intruders. There are three basic steps of action:

Escape if you can. (Plan designated escape routes)
Hide under a desk or in a closet or anywhere you can find.
If left with no choice, fight back. (Do not beg for your life!)

The best example of fighting back is the female school board member in Florida who swung her purse at a gunman intent on shooting the school board. She was not shot.

(Note: the rules for dealing with a robber are different.)

Your firm should also develop plans for dealing with other emergencies such as fire, storms and earthquakes.

You can find detailed guidelines for dealing with an armed intruder on our website.

WILL A SPOUSE BE GIVEN CREDIT FOR SEPARATE FUNDS INVESTED IN A HOUSE?

2012-01-23T10:27:00.000-06:00

There are many situations where one party contributes separate funds to the acquisition of a home. Once separate funds are contribute to joint property which is used in the marriage, the separate funds are deemed “commingled” in the marital estate, thus making them subject to award in divorce. An examination of the decisions on this point leads to complete confusion.

There are just as many cases which affirm an equal distribution as there are cases which take the separate contribution into account. The Court has said that an exact “credit” for separate funds is not called for. In the recent case of Gordon v. Gordon, NO. 2010–CA–01227–COA, (App. Ct. Miss. 1/17/2012) the court of appeals affirmed a Chancellor’s award of an exact credit for $70,000 of separate money invested in the marital home.

The moral of the story seems to be that Chancellors have vast discretion in determining how to deal with separate money contributed to a joint home and there is no way to make a prediction in such cases.

RECENT ALLEGED ABUSE CASES HEIGHTEN RESPONSIBILITY TO REPORT ABUSE

2012-01-17T11:33:00.000-06:00

Child abusers are masters of deception. They often disguise their abuse with careers of service, such as children’s ministry, or church, or school. They also conceal their character by attaching themselves to people whose reputations are beyond repute. People seem to assume that people with great character will only have those with great character around them. But, we cannot know what lurks behind the outward personas of people.

Abuse is often subtle or hard to detect or prove. Abusers use techniques for verbal, physical or sexual abuse which make it hard discern what is happening.

Most, if not all, states require most professionals and any person to report abuse to the State. For example, Doctors who witness bruises or suspicious breaks (e.g. spiral) on a child. While some abuse may be obvious, most is not. The Mississippi Department of Human Services has developed the following guide list for determining if more subtle signs of abuse are subject to report:

The following is taken from the Mississippi Department of Human Services website.

Abuse Is:

Emotional/Verbal Abuse is anything said or done that is hurtful or threatening to a child and is the most difficult form of maltreatment to identify:

Name calling, "You're stupid"
Belittling, "I wish you were never born"
Destroying child's possessions or pets
Threatens to harm child or people they care about, "I'm going to choke you” or “I'll break your arm”
Locking a child in a closet or box
Rejecting a child
Isolating a child

Sexual Abuse is any inappropriate touching by a friend, family member, anyone having on-going contact and/or a stranger such as:

Touching a child’s genital area
Any type of penetration of a child
Allowing a child to view or participate in pornography
Prostitution, selling your child for money, drugs, etc.
Forcing a child to perform oral sex acts
Masturbating in front of a child
Having sex in front of a child

Physical Abuse is any type of contact that results in bodily harm such as bruising, abrasions, broken bones, internal injuries, burning, missing teeth and skeletal injuries:

Hitting or slapping a child with an extension cord, hands, belts, fists, broom handles, brushes, etc.
Putting child into hot water
Cutting the child with a knife or any other sharp object
Shaking or twisting arms or legs, yanking a child by the arm
Putting tape over a child's mouth
Tying a child up with rope or cord
Throwing a child across a room or down the stairs

Neglect means not meeting the basic needs of the child and is the most common form of maltreatment:

Medical - not giving a child life-sustaining medicines, overmedicating, not obtaining special treatment devices deemed necessary by a physician
Supervision - leaving child/children unattended and leaving child/children in the care of other children too young to protect them (depending upon the maturity of the child)
Clothing and good hygiene - dressing children inadequately for weather, persistent skin disorders resulting from improper hygiene
Nutrition - lack of sufficient quantity or quality of food, letting a child consistently complain of hunger and allowing the child to rummage for food
Shelter - having structurally unsafe housing, inadequate heating, and unsanitary housing conditions

REPORT ABUSE

Online: https://www.msabusehotline.mdhs.ms.gov/home.aspx
Hotline: 1-800-222-8000 Statewide toll-free line that is answered 24 hours a day, seven days a week

Contact Information
Mississippi Department of Human Services
Division of Family & Children's Services
Administration/Prevention Unit
1-800-345-6347 | 1-800-222-8000

ABUSE CAN BE VERY SUBTLE BUT JUST AS DESTRUCTIVE AS A PUNCH IN THE NOSE

2012-01-09T09:25:00.004-06:00

As a family lawyer, I often deal with abuse that is difficult, if not impossible to prove. The divorce lawyer faces many obstacles in dealing with this. First, many people don’t fully appreciate the abuse they are suffering because it is so subtle. Second, the abused person often feels either responsible or so embarrassed that they are not able to verbalize what they are experiencing. And, while the abused person is not at fault, they do play a role in the abuse. Family lawyers should educate their clients on abuse, particularly physical abuse.

Visit our web site for material on abuse at chinnandassociates.com. We often recommend the book, The Verbally Abusive Relationship, by Patricia Evans (2010, Adams Media). This book helps clients identify the abuse they are suffering and educates them on how to step out of the cycle. A friend recently told me about another helpful book called, The Emotionally Destructive Relationship: Seeing It, Stopping It, Surviving It, by Leslie Vernick, (2007, Harvest House). In Chapter 1 she defines the emotionally destructive relationship. Importantly, she shows how destruction in relationships can be much more subtle and not always malicious as we often imagine abuse to be.

Education about abuse is important not just to determine to get out of a relationship, but also to possibly help people identify ways to step out of the cycle and save a marriage.

START THINKING ABOUT 2012 IN YOUR DOCUMENTS

2011-12-19T09:09:00.002-06:00

I have already had several documents that I have either sent or received which mistakenly had 2011 instead of 2012. Start thinking about the year change now. When you draft proposed agreements or pleadings, or notary signatures, leave the year blank, such as “201_” instead of anticipating the year the document will actually be signed. Small mistakes in year can either be a little embarrassing or completely change the meaning of a document.

PROTECT YOURSELF FROM HAVING LANGUAGE INTERPRETED AGAINST YOU WHEN YOU ARE THE DRAFTER

2011-12-12T09:36:00.000-06:00

All attorneys know there are “rules of construction” in the interpretation of contracts and agreements. These rules call for the Court to first see if the language is clear without further testimony. If the language is not clear, the Court might hear testimony as to the intent of the parties. If the intent is still not clear, the Court will interpret the agreement against the drafter of the Agreement. In divorce cases, one attorney is usually charged with the actual typing of the agreement.

But interpreting the agreement against the attorney typing the agreement is often not fair, because the mere typist of the agreement doesn’t have total control over the language. Instead, the language is the product of compromise. Our firm utilizes the following language to protect ourselves when we assume the responsibility for the actual typing of the agreement:

Future Interpretation. Both parties agree that should any future dispute arise as to the interpretation of this agreement or any part thereof, the agreement shall be construed as having been equally drafted by both parties as if each party drafted each and every word and, therefore, should not be construed against a party because that party actually prepared the agreement.

For more unique provisions, visit me at my presentation on “Unique Divorce Provisions” on January 26, 11 at the Old Capitol Inn. You can register here!

YOU CAN CHANGE YOUR NAME IN YOUR DIVORCE

2011-12-05T08:49:00.000-06:00

All too often, a female client will think about changing her name after we have entered the divorce. She wants to know how to do it. This is a shame, because it is easy to incorporate the name change in the Order of the divorce with one sentence and it is done! One consideration for young mothers is whether they want to have a different last name from their children. Other than that, its easy to accomplish if thought about on the front end.

IF IT AIN’T WRITTEN DOWN, IT WON’T HAPPEN

2011-11-28T11:02:00.001-06:00

Divorce negotiation is a tricky thing. It is much more complicated than a business negotiation because of the emotions involved. It is also made difficult by the fact that few married people can negotiate at what we call “arms length.” Each party has emotional leverage on the other. Most often, one party has superior emotional position, financial power or control over the other. It is the job of lawyers to “level the playing field.”

There is a danger, however, to those who enjoy less negotiation power, or who want out of the marriage, or who want things to be pleasant. In the spirit of cooperation, or in an effort to end the conflict, sometimes people agree to written agreements with a side understanding that certain other things will be done.

Don’t go for it.

Whatever is not written in an agreement cannot be relied upon. Even if the promise is made in good faith–which is rarely the case–circumstances change after divorce, and the desire to honor the promise may pass. Clients should advise their attorneys of any verbal side deals they may be relying upon and seek their advice before signing an agreement that has verbal side deals attached to it.

THANKSGIVING IS A SPIRITUAL STATE OF MIND

2011-11-21T11:34:00.001-06:00

We all know that the Pilgrims invented Thanksgiving at a time when they were living in the harshest of environments and suffering unspeakable misery with famine, and death from disease. They taught us that Thanksgiving is a spiritual state of mind which is available to all of us no matter what our circumstances. In our time of comparative luxury and plenty, we should still remember that Thanksgiving is available to all of us, no matter what particular trouble might be attacking us. Take joy in your trials and focus these days on all of the many good things in your life!

The Team at Chinn & Associates, PLLC

CAN WE REALLY RELY ON “PRECEDENT” IN DIVORCE CASES? IS GAMBLING NOW GROUNDS FOR DIVORCE?

2011-11-14T09:23:00.001-06:00

Lawyers are taught that they are to rely upon “precedent” in advising their clients and presenting their cases. “Precedent” means that the matter has been decided a certain way before by a court of authority and it should be decided that way again. But the truth of the matter is that precedent seems to do lawyers very little good, particularly in family law, where it is also the law that “each case turns on its own facts.” A good example of this is the recent decision of Smith v. Smith, No. 2009–CA–01661–COA (Decided 11/1/11), wherein the Court affirmed a divorce on the ground of habitual cruelty where the allegations of cruelty seemed to depend entirely on gambling. On the face of it, this decision runs contrary to several decisions explicitly saying that gambling does not constitute cruelty. But the Court navigated around those several precedents by using the “facts of the particular case” doctrine. The Court distinguished the other cases, because Billy Smith’s gambling losses were more substantial than other cases and Billy engaged in a pattern of dishonest behavior in incurring the gambling debt. These seem to be specious distinctions, given the fact that gambling is not intentional conduct designed to hurt the other spouse, a traditional view of cruelty. In the end, whether or not lawyers are confused on how to advise clients, the holding in Smith does recognize what we all know, gambling addiction may be the most destructive addiction there is, and it is probably good that Courts are now recognizing it.

MISSISSIPPI’S CONSTITUTIONAL INITIATIVE 26 WILL RUN HEAD ON INTO MODERN ASSISTED REPRODUCTIVE TECHNOLOGY

2011-11-07T09:48:00.001-06:00

Tomorrow, Mississippi Voters go to the polls to vote on a Constitutional Amendment declaring "personhood" to start at conception. The Initiative is quoted below as it will appear on the ballot:

“Initiative #26 would amend the Mississippi Constitution to define the word “person” or “persons”, as those terms are used in Article III of the state constitution, to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.”

No matter what a person’s position on abortion, this initiative will generate a fire storm of confusion, litigation, and possible criminal laws relating to it. This will run smack dab into technology that exists today regarding assisted reproductive technology. Even without the amendment, it is “that reality of a child conceived, or sought to be conceived, by medical collaborative reproduction that has created a number of difficult legal issues for lawyers and judges in the context of nontraditional life....” Assisted Reproductive Technology, by Charles P. Kindregan, Jr., and Maureen McBrien, ABA 2006, at 7.

The following are some examples of assisted reproductive technology to procreate:

Same-gender female partners who can employ intrauterine insemination to produce a pregnancy in one of the partners with the sperm of an anonymous donor or a known donor.
Same-gender male partners who can employ a traditional surrogate to carry a child for them using the sperm of one of them to produce the pregnancy by intrauterine insemination.
Same-gender female partners who agree that one of them will become pregnant by in vitro fertilization or a similar procedure, such as gamete intra-fallopian transfer, gamete uterine transfer, or peritoneal ovum and sperm transfer.
Same-gender female partners who agree that they will employ a gestational surrogate to carry a child for them using the egg of either one of them and donated sperm.
Same-gender female partners using donated sperm and donated eggs that are fertilized in vitro, producing embryos intended to be implanted in one of them.
Same-gender male partners who provide the sperm of one of them to fertilize a donated egg in vitro, with the resulting embryo to be carried by a female gestational carrier.
Male and female couple who employ the sperm of a donor to make the female pregnant by intrauterine insemination because
of the infertility of the male partner, or to avoid a disease carried by the male partner or because of Rh blood incompatibility.
Male and female couple who use an embryo produced by another couple that is fertilized in vitro and cryopreserved in order to be implanted into the uterus of the female.
Same-gender female partners who use an embryo produced by another couple that is fertilized in vitro and cryopreserved in order to be implanted into the uterus of one of the female partners.
Male and female couple who use their own gametes but employ intrauterine insemination to produce a pregnancy because male impotence makes sexual intercourse impossible.
Unpartnered female who uses donated sperm to become pregnant by intrauterine insemination.
Unpartnered female who uses donated sperm and in vitro fertilization to become pregnant because of defective or diseased fallopian tubes.
Unpartnered male who uses either his own sperm or donated sperm and, by use of intrauterine insemination, employs the services of a surrogate carrier to give birth to a child he intends to raise.

Id., at 9-10

Technology is there to help people who are unable or unwilling to fit into traditional notions of reproduction by a married male and female. Is recognition of their rights going to be shattered by this Amendment?

IMPACT OF GAY MARRIAGES AND ADOPTIONS IN STATES THAT DO NOT PERMIT IT

2011-10-31T11:55:00.000-05:00

A wide range of complicated legal issues sit upon the horizon in the clash between States that allow rights for gays and States that don’t. The wall seems to have fallen blocking gay marriage, and those married in States where it is legal will be moving into States where it is not. With regard to adoption, it has been reported that there is a “stratospheric increase” in gay couple adoptions. About 32,571 adopted children were living with same sex couples in 2009. Clarion Ledger, Oct. 21, 2011. What happens when those legally adopted children move to States that prohibit gay adoptions and/or gay marriage? What will be the child support obligations if the gay couple separates. Attorneys, Courts and couples need to be preparing for these and other tough issues.

See this article in the November issue of the ABA Journal.

MISSISSIPPI IS THE FIRST STATE TO ALLOW A DIVORCE SOLELY ON THE USE OF MARIJUANA

2011-10-24T13:55:00.002-05:00

Mississippi Code Section 93-5-1 (Rev. 2004) lists “habitual and excessive use of opium, morphine, or other like drug” as a ground for divorce. A grant of divorce on this ground requires the plaintiff to establish that the spouse’s drug use was (1) habitual and frequent, (2) excessive and uncontrollable, and (3) that involved opium, morphine, or drugs with a similar effect as opium or morphine. Ladner v. Ladner, 436 So. 2d 1366, 1375 (Miss. 1983). Habitual use is established by showing that the spouse customarily and frequently used drugs. The offending spouse “must be so addicted to the use of drugs that he cannot control his appetite for drugs whenever the opportunity to obtain drugs is present.” Id.

In the recent case of Carambat v. Carambat, No. 2010-CA-01226-SCT (Decided 10/20/11), the Court affirmed the granting of a divorce based upon the foregoing ground for divorce, finding that marijuana produced life damaging affects and addiction similar to opium and morphine and was, therefore, an “other like drug.” Testimony showed James Carambat started smoking marijuana at age 14 and continued until he was 55. James admitted to daily use but said he smoked merely to relax and that his habit had no bad effects. His wife, differed, saying he removed himself from the family and was financially irresponsible. The Supreme Court agreed with the Chancellor, finding marijuana to be addictive and damaging to life in the same way as opium or morphine.

Interestingly, three Justices dissented, stating that none of them or their law clerks could find any case in the country allowing a divorce solely on the use of marijuana. The dissenters found that marijuana was not at all similar to opium or morphine. They went on to state:

“In addition, given the unfortunate prevalence of marihuana in American society, it is a dangerous precedent to allow divorce for marihuana use alone. As already revealed, marihuana is considered to be a relatively mild drug, and remains the least regulated of all illegal drugs in the State of Mississippi. Marijuana is less addictive, less immediately dangerous, and less incapacitating than the major opiates, and indeed than most other illegal drugs. Allowing a divorce based on marihuana abuse will effectively hold that divorce is available for the abuse of any drug -- which is not a natural reading of “opium, morphine or other like drug.”

THINGS YOUR BURGLAR WON'T TELL YOU

2011-10-17T11:54:00.002-05:00

I know I normally talk about family law matters, but this information is too valuable not to pass on. The author of the following information also suggests you place your car keys by your bed so you can hit your car alarm button on your keys if a burglar enters, and to get wasp spray instead of pepper spray. Interesting: wasp spray shoots a precise line of up to 30 feet and accomplishes the same result as pepper spray if you strike the assailant in the eyes.

1.    Of course I look familiar. I was here just last week cleaning your carpets, painting your shutters, or delivering your new refrigerator.

2.    Hey, thanks for letting me use the bathroom when I was working in your yard last week. While I was in there, I unlatched the back window to make my return a little easier.

3.    Love those flowers. That tells me you have taste... and taste means there are nice things inside. Those yard toys your kids leave out always make me wonder what type of gaming system they have.

4.    Yes, I really do look for newspapers piled up on the driveway. And I might leave a pizza flyer in your front door to see how long it takes you to remove it.

5.    If it snows while you're out of town, get a neighbor to create car and foot tracks into the house. Virgin drifts in the driveway are a dead giveaway.

6.    If decorative glass is part of your front entrance, don't let your alarm company install the control pad where I can see if it's set. That makes it too easy.

7.    A good security company alarms the window over the sink. And the windows on the second floor, which often access the master bedroom - and your jewelry. It's not a bad idea to put motion detectors up there too.

8.    It's raining, you're fumbling with your umbrella, and you forget to lock your door - understandable. But understand this: I don't take a day off because of bad weather.

9.    I always knock first. If you answer, I'll ask for directions somewhere or offer to clean your gutters. (Don't take me up on it.)

10.    Do you really think I won't look in your sock drawer? I always check dresser drawers, the bedside table, and the medicine cabinet.

11.    Here's a helpful hint: I almost never go into kids' rooms.

12.    You're right: I won't have enough time to break into that safe where you keep your valuables. But if it's not bolted down, I'll take it with me.

13.    A loud TV or radio can be a better deterrent than the best alarm system. If you're reluctant to leave your TV on while you're out of town, you can buy a $35 device that works on a timer and simulates the flickering glow of a real television. (Find it at http://www.faketv.com)

14.    Sometimes, I carry a clipboard. Sometimes, I dress like a lawn guy and carry a rake. I do my best to never, ever look like a crook.

15.    The two things I hate most: loud dogs and nosy neighbors.

16.    I'll break a window to get in, even if it makes a little noise. If your neighbor hears one loud sound, he'll stop what he's doing and wait to hear it again. If he doesn't hear it again, he'll just go back to what he was doing. It's human nature.

17.    I'm not complaining, but why would you pay all that money for a fancy alarm system and leave your house without setting it?

18.    I love looking in your windows. I'm looking for signs that you're home, and for flat screen TVs or gaming systems I'd like. I'll drive or walk through your neighborhood at night, before you close the blinds, just to pick my targets.

19.    Avoid announcing your vacation on your Facebook page. It's easier than you think to look up your address.

20.    To you, leaving that window open just a crack during the day is a way to let in a little fresh air. To me, it's an invitation.

21.    If you don't answer when I knock, I try the door. Occasionally, I hit the jackpot and walk right in.

Sources: Convicted burglars in North Carolina, Oregon, California, and Kentucky; security consultant Chris McGoey, who runs http://www.crimedoctor.com and Richard T. Wright, a criminology professor at the University of Missouri-St. Louis, who interviewed 105 burglars for his book Burglars on the Job.

THE POWER OF QUICKEN

2011-10-11T11:30:00.003-05:00

Every divorce case is a financial planning negotiation and requires the development of detailed budget, asset and liability information. Assets and liabilities are relatively easy to pin down with documents and appraisals. Accurate budget information is another thing altogether.

Clients are usually told to sit down with their checks and credit cards and average the expenses in different categories over the past 12 months. Usually, clients short cut their work and use educated guesses. However, this is a mistake. The budget of each party is a real key in the negotiation or trial. It plays a key role in alimony and child support. It also plays a key role in determining whether a settlement is adequate.

Budget software is an absolute must when it comes to calculating budgets. The most common and very inexpensive software for this purpose is Quicken. Checks and other expenses can be easily inputted into the program, and detailed and accurate reports generated even by novices in accounting or computers.

I recently attended a mediation where the woman had nearly doubled her actual budget on her financial statement. My client had entered all of his financial information into Quicken for years. Suffice it to say, the Quicken documentation carried the day on the actual budget for negotiation purposes. It saved a lot of negotiation time and probably gave the other side comfort that the numbers we were offering would suffice for her needs.

WHEN THE POST DIVORCE SITUATION CHANGES, DON’T WAIT TO CONSULT A LAWYER ABOUT CHANGING THE ORDER OF DIVORCE

2011-10-03T12:51:00.001-05:00

I have witnessed countless times when the situation of the parties and the children changes after the divorce and the parties do nothing to change the Order. This often leads to unfair results down the road. Many times, the parties are getting along quite well and agree on changes, but that does not mean there is protection from a later court action.

A good example is the recent case of Dupre v. Dupre, No. 2010-CA-00496-COA (Decided September 27, 2011). In that case two significant changes took place which dramatically affected Mr. Dupre’s alimony and support obligations, but he waited over two years before taking action in Court. First, he was under an order to pay $1000 per month in support, but his 16 year old son left the homes of his parents and lived on his own. Both parents contributed to the support of the son.

Naturally, Mr. Dupre figured he didn’t owe support because the son was no longer living with his Mother, but changes can’t be made like that by the parties. They must seek a change in the Court’s order. Mr. Dupre got tagged with $30,701.96 in past due support and got sent to jail.

In addition, the former Mrs. Dupre shacked up with her boyfriend after hurricane Katrina. If Mr. Dupre had acted promptly, he could have had his $200 per month alimony obligation terminated, but he waited. After he filed, the Court terminated his alimony obligation as of the date of the filing.

So, clients should know that even though you may be getting along with your ex, and everything you are doing seems logical, consult with a lawyer if the situation set forth in the Order of divorce changes. Lawyers should make it a habit of advising clients at the conclusion of the representation to keep them advised of changes so they might take protective actions.

IS COURT EFFICIENT? NO! HEARINGS AND TRIALS AND HOW TO HANDLE THEM

2011-09-26T08:48:00.002-05:00

There are many different kinds of court dates: there are emergency hearings, temporary hearings, discovery hearings, pre-trial conferences, and trials. The court system usually does not operate quickly. In some areas, litigants may wait literally years to get a trial date. The longer the trial, the longer the wait.

Clients generally do not have to attend motions that are purely legal in nature where there will be no testimony taken. A good example of this is a Motion to Compel Answers to Discovery. Of course, clients should always check with their lawyer, and they certainly have the right to attend everything that takes place in their case. Temporary Hearings, Motions for Contempt or to Modify, and Trials usually require testimony, and clients should expect to be present and prepared to testify.

What many clients don’t understand is that there are often many cases set for hearings or trials or other actions on the same day. That means a hearing scheduled for 9:00 a.m. might not go forward until later in the day. It also means it might not go forward at all. Lawyers take care to ask where they will be on the docket before they schedule a matter, and they should also develop a system of checking with the Court administrator the day before hearings and trials to see where their case is on the docket. This will allow them to prepare themselves and their clients for possible delay.

Upon arrival at court, the lawyers usually obtain the “docket” or list of cases set for the day. Cases which are on the docket may settle or be continued and the order will change. Clients should be prepared for almost anything when they attend court for a hearing or trial.

WILL THE POLICE HELP? IT’S A TOSS UP.

2011-09-19T08:53:00.002-05:00

There are many occasions when police are called upon to help in a domestic situation. The most obvious situation is a marriage argument or fight. Another common situation involves one spouse trying to leave the home and take personal possessions. I have had experience with many different situations and many different police officers and departments.

Either one of the spouses or a neighbor calls the police because of the dispute. The police arrive...what do they do? Our experience shows the result is never the same. In just the past few months, we have had the police do the exact opposite thing in the same situation.

In the first, our client was at her house trying to get her personal effects. No court order was in place. The husband called the police who came and then prevented our client from taking things out of her own house. Their explanation was that given the doubt and the conflict, they were going to err on the side of things staying put.

Months later, a different client calls and says a moving van is at her house and her husband is taking things out of the house. We tell her to call the police and ask their assistance in stopping the raid on her house. They refuse, saying a man has a right to take his own things out of his own house.

Since there is no way of knowing what individual officers or departments will do, care should be taken in these situations. First, don’t lose your cool with the police. You could end up going to jail. Second, if you have some indication that something like this might happen or you have a desire to go get some things and anticipate trouble, call the police before the incident develops and let them know you are in a difficult matrimonial situation and might need their help. Your call beforehand might put them on your side.

DOES A SPOUSE HAVE A CIVIL SUIT FOR DAMAGES FOR DENIAL OF SEXUAL RELATIONS?

2011-09-12T09:00:00.000-05:00

Here is a link to an article describing a successful suit by a French wife against her ex-husband for failure to perform sexually during the marriage. She was awarded the equivalent of $15,000 US.

At first blush, this action seems preposterous. However, a look at law in Mississippi provokes some thought as to whether or not there may, indeed, be an action for damages by one spouse against the other for denial of sex.

It is not widely known that one of the grounds for divorce in Mississippi is “Natural Impotency.” There is little known about the terms of this ground. There is only one reported case which found that a wife’s refusal to have sex because it was painful was not sufficient basis for divorce on this ground.

There is case law which suggests that extreme, prolonged denial of sexual relations may be sufficient to award a divorce on the ground of "habitual cruel and inhuman treatment." Culver v. Culver, 383 So. 2d 817 (Miss. 1980) (where sex was denied for eight years). We also know that Mississippi and other states allow a spouse to sue a third party for “loss of consortium” which includes the spouses sexual duty to the other.

So, the elements for a civil suit may be there. There is a recognized duty on the part of a spouse to have sex. As a matter of fact, sex is required to “consummate” the marriage. If there is a duty, then it would follow that there would be neglect of the duty and possibly damages as a result. Maybe the French Judge is on to something!

YOU CAN’T PLAY GAMES WITH “CLEAN HANDS DOCTRINE”

2011-09-06T09:09:00.000-05:00

The “clean hands doctrine” requires parties to comply with all of their obligations under an order before filing a Motion for Contempt or to Modify against the other party. This doctrine is a fundamental element of family law practice. You have to “do right” to be able to ask that the other person “do right.” This is often difficult for divorced persons because the temptation is to retaliate instead of continuing to do right when you believe the other person is treating you wrong. A good example is the Mother who denies visitation because the Father is not paying support. Her logic is, “Why should he be allowed to see them if he won’t support them.” One can hardly blame the Mother, but, unfortunately, a Court will.

In the recent case of Mitchell v. Mitchell, No. 2010–CA–00897–COA (Decided 8/9/11), Bobby Mitchell got his hand called on playing games with the clean hands doctrine. Apparently, Bobby feared that Kimberly was not using his $1,000 alimony check to pay the house note on a house he was still liable for. So, he stopped paying the alimony. Then he filed suit for contempt against Kimberly for not paying the house note. He argued that Kimberly came into Court with unclean hands because she had not paid the house note. The Court didn’t buy it and held that Bobby had put Kimberly in the position where she could not pay the house note because he hadn’t paid his alimony. Bobby got held in contempt and Kimberly didn’t.

BE CAREFUL TRANSFERRING HOME TO THE OTHER SPOUSE IN DIVORCE AGREEMENTS

2011-08-29T10:29:00.000-05:00

Most divorce agreements provide that one party retain ownership of the marital home. The other party “Quit Claims” their interest. There are some serious matters to consider. Transferring the home (or a car or any other item) does not relieve the person surrendering the property from liability to the mortgage holder. This means that the person who transfers the home is still liable to the bank, even though they don’t own the home anymore. In addition, the loan will remain on the seller’s credit report, thus making it difficult, if not impossible to buy another home.

Here are some steps to take. Require the person receiving the home to refinance. However, this can be an empty requirement if the person cannot refinance. Thus, it is best to find out from the lender if they are likely to allow a refinancing before putting that provision in the agreement. In the recent decision of Mitchell v. Mitchell, No. 2010–CA–00897–COA (Decided 8/9/11) the agreement required Kimberly to “attempt to refinance.” She was unable and when Bobby sought to hold her in contempt, the Court found that she was only obligated to try and was not obligated to succeed.

Another solution is to retain a security interest in the property. If the person does not make the payments, the security agreement would allow taking over the property and making the payments. This would be similar to a second mortgage. The best solution, however, is to predetermine if the person would qualify for refinancing.

80% OF LAW FIRMS SURVEYED BELIEVE NON-HOURLY BILLING FOR LEGAL SERVICES WILL BE ADOPTED AS A STANDARD BY MOST FIRMS GOING FORWARD

2011-08-22T09:00:00.000-05:00

Would you go on a cruise without knowing the final cost? Would you board the boat knowing that your bill would be based upon the number of hours that people worked on the ship or waited on you? Would you want to be sent a bill at the end of the cruise based upon the number of times you talked to crew members and the number of hours they spent cleaning your room. No!

Would you rather be quoted a single fee for the cruise, determine if you wanted to spend that much, pay your fee up front and then receive unlimited service at no extra charge? I think so.

And that’s the way it is for most things and services we buy. But not for most lawyers. The typical lawyer quotes you hourly rates for services and then embarks on your case and sends you bills each month based solely on the time people spend on the project. When the bill arrives, it is a surprise and you will not know the total cost of your project until the end. Even the lawyer does not know how much his bill will be before he totals his time.

A recent survey by the preeminent law practice management firm of Aultman Weil reveals that between 71 and 87% of firms believe non-hourly billing for lawyers will be adopted as the standard for most firms in the future. The American Bar Association Task Force on Alternative Billing called for change in hourly billing in 1989, pointing out that hourly billing provides a disincentive for efficiency.

Clients, particularly corporations, are going to be demanding certainty in their legal costs and efficiency from their lawyers, not time spent. The Association of Corporate Counsel has adopted a platform advocating the dumping of the billable hour and the adoption of value based pricing. Both lawyers and clients will be better off with this change. Visit the Verasage Institute on Value Pricing for more information.

BACK TO SCHOOL TIPS FOR CO-PARENTS

2011-08-15T08:46:00.000-05:00

A repost of an article by Jai Kissoon, of OurFamilyWizard.com. We recommend that all divorced parents explore the site as a possibility of making co-parenting easier and more effective.

The new school year is quickly approaching and its time to start preparing. If you and your co-parents both take part in the upbringing of your child than this can be a challenging task. Preparing your child for a new school year requires a lot of coordination and cooperation between you and your co-parent. This is an important time for your child to feel support from both you and your co-parent and to know that you both care. Here are some tips to remember to make going back to school as smooth as possible for you and your child.

Keep everyone on the same page

Some co-parents have implemented the use of weekly or monthly family meetings to keep everyone updated on what’s going on in everyone’s lives. This is a good way for children to get to talk to both you and your co-parent in the same room but it is more useful to keep both you and your co-parent updated on your child’s life.

Simple responsibilities, such as remembering to bring your son's soccer cleats for his afterschool game, can become a daunting task if communication with the other parent is poor. Communication hurdles can be difficult to overcome for parents with a good relationship, and separated co-parenting can become an even more challenging environment.

For family law professionals, the OurFamilyWizard website can provide an in-depth look into the parents' communications. This newly found accountability is giving parents a reason to get along with the other parent, because action and inaction are both documented. The end result is parents who communicate, children who are kept out of the middle and professionals who can spend their time more effectively helping the clients they serve.

We would add that parents should exchange schedules for school and activities.

Shopping is a job for both co-parents

It is extremely important to coordinate the back to school shopping with your co-parent. This is a big job and should not all be dumped on either one co-parent. Back to school shopping includes shopping for school supplies as well as clothes. If you and your co-parent are in a high conflict relationship try to remember to not sweat the small stuff. If you don’t agree on your co-parent’s choice of clothing or school supplies try to compromise as best you can.

Don’t bring up child support issues

Child support is a touchy subject and should generally not be discussed around your child. The beginning of a new school year is a time where kids show off all of their new stuff to their friends. This desire for the latest and greatest things can put a strain on your wallet. It’s important not to blame your inability to buy the most expensive things for you child on your child support payments or lack of child support. Do all that you can to avoid talking bad about your co-parent in front of your child.

Help your child with their daily schoolwork and projects

Regardless of whether or not your child is a fast or slow learner, when your child is residing at your home you should be sitting down with them as they work on their schoolwork. The same goes for your co-parent as well. The most important thing is to just be there for your child so that they can call on your whenever they need you. This will show them that you’re there to support them in whatever they are doing, not just schoolwork. Also try to coordinate with your co-parent regarding your child’s schoolwork. Let your co-parent know about important due dates and if your child did not complete something before it was time to switch between homes.

Attend important school events with your co-parent

This may not always be possible if you and your co-parent are in a high conflict relationship or if you have a no contact order by the court. If it is possible, it's much more effective when you and your co-parent are both able to sit down at school orientation, parent-teacher conference, or any other important event on behalf or your child. This is much better than one co-parent attending and relaying the information to the other co-parent.

Keep the focus on your child

Don’t get caught up in unnecessary competition or arguments with your co-parent. It’s important to keep the focus on your child during this time and to let your child know that both you and your co-parent are there for comfort and support. Be as civil as possible given the situation between you and your co-parent.

Have a backpack for the parents

Having a separate backpack for the parents to transmit items and forms is a great way to keep the kid out of the middle. This way it is the parent's responsibility to make sure the bag makes it to the other parent, taking the pressure off of the kids. Additionally, this takes possible inappropriate items from being seen by the kids.

THE NUMBER ONE THING PROFESSIONALS SCREW UP ON SOCIAL NETWORKING AND WEB SITES

2011-08-08T08:57:00.001-05:00

Attorneys and other professionals are caught up in their “professional standing” as a marketing tool. Attorneys, for example, think its important to market their Martindale-Hubbell rating, or their listing in Best Lawyers in America or a local ranking as a Top 50 lawyer in their city. These things are certainly important, but what professionals don’t realize is that people searching for an attorney or other professional are really more drawn to “who you are” than the professional accolades.

This is totally counter intuitive. I first heard this from prominent lawyer, blogger and social networker, Lee Rosen, from North Carolina. He has a section on his web site entitled, “Why I Became a Lawyer.” In it, he talks about his life and what he wants to achieve and why he wants to be a lawyer. After seeing that, I posted a similar statement, although my story is different.

Since then, I have read Michelle Golden’s book, Social Media Strategies for Professionals and Their Firms. She writes that people using social networking are interested in people and reject to the traditional “corporate speak.” She urges professionals to personalize their web sites and blog postings. She writes, “social media forums are not the place to broadcast advertise in the traditional or vague corporate speak way. When you think about the roles of trust and credibility played in the growth of Web communities, it makes complete sense that the values that reign supreme in the communities today are authenticity, transparency, humanizing, sharing information, and even respectfully disagreeing.”

After reading this, I saw a post by Lee Rosen and its title was, “Seven Things That Scare Me.” In the post, he talked about fearing not having money for salaries and fearing making a mistake for which he might be sued. This was “humanizing.” It was not something lawyers generally like to portray about themselves. But, as Michelle has written, it drew me closer to Lee.

CAN I BRING A RELATIVE OR FRIEND WITH ME WHEN I MEET WITH MY LAWYER?

2011-08-01T10:28:00.000-05:00

The answer is “Yes, but there are a couple of cautionary matters.” Our firm encourages clients to bring supportive friends or family to interviews, particularly the initial interview. When people visit their divorce lawyer for the first time, they are usually distraught, fearful and disoriented. It is usually difficult to think and understand.

The initial interview is a critical interview, because the lawyer obtains necessary facts and provides law and strategic options. The course of your case may be set at the initial interview. Having a supporter there helps the client relax a little and provides “back up” for providing accurate information and remembering important advice from the lawyer.

Our firm also records the initial interview, so you might want to either ask your lawyer to record the interview or bring your own recorder. This will allow you to review the law and options provided by the lawyer.

There are two basic “cautionary matters.” First, there is a privilege between a lawyer and a client. Neither the lawyer nor the client can ever be compelled to testify about advice or communications between the lawyer or client. This privilege is “breached” when a third party is brought into the conversation. If the third party were ever deposed or placed on the stand, they could be compelled to testify as to what was said and the privilege of the communications would be lost. As a practical matter, I have never seen this happen, but since it is a possibility, it must be considered.

A second cautionary matter is that there may be discussions about matters the client would not like to have the third party hear. Be very sure before you bring a third party in to discussions with your lawyer that you are comfortable with them hearing about your finances, your sex life, your children and your married life. One way to address both issues is to excuse the third party from the interview when a sensitive matter is being discussed. This will prevent both a breach of the privilege and the revealing of a private matter.

THE RIGHT TO BEAR ARMS COMES WITH A RESPONSIBILITY TO BEAR THEM SAFELY

2011-07-25T09:24:00.003-05:00

At a recent international meeting, a friend of mine from Australia asked me what the American preoccupation with guns was. This was just days after Congresswoman Giffords of Arizona was gunned down. I explained that the right to bear arms lies at the core of every American and that I supposed it came from the fact that we conquered a frontier and then needed our weapons to achieve our freedom from a King. (Apparently Australia did not have to go to war to separate from Britain.) So, I am firmly planted in the concept that we should bear arms in this country. I have my own. But, I don’t carry a handgun or keep one at my home. The danger is too great.

Vince Lombardi once said that there are three things that can happen when you throw a pass and two of them are bad. With guns, I think there are six things that can happen and only two of them are good. This blog is inspired by the occurrence of two separate shootings with handguns that were reported in our Jackson news on the same day, July 16, 2011. The front page of the local paper carried a story of a Texas woman who accidentally shot her 53 year old husband in a futile attempt to shoot a pit bull dog who was attacking a child. She grazed the dog and killed her husband, who was trying to pull the dog away. This was clearly a case of someone misusing a hand gun with no training or experience and mistakenly killing a loved one.

The second incident was found on the front page of the local section of the paper. It described how a priest was killed with his own hand gun at his home by a part-time caretaker for the home. This was a case of the criminal finding the hand gun before the owner did and using it to harm him.

The two good things that can come from guns are good hunting and protection. The four bad things are:

your gun will be the first thing crooks steal when they break into your car or house
the criminal will use your gun to kill you
you will accidentally harm someone you don’t intend to
children will find it and harm themselves or others

Let’s hold onto our Constitutional right to bear arms, but let’s start a campaign to make America’s citizens exercise this right the way it was intended.

FIXED FEES ARE PREFERRED BY CLIENTS ACCORDING TO CANADIAN LAWYER SURVEY

2011-07-18T09:01:00.000-05:00

Our firm dumped the billable hour and adopted “value pricing” in 2005. We customize fixed prices for our clients depending upon the value of the case to them. We usually create three pricing options from which to chose. The price is developed only after extensive work with the clients to explore their options and develop clear and precise plans as to what is to be accomplished. A recent survey of Canadian Lawyers reflects that our method is the preferred method of charging from the client’s perspective:

“The survey shows that lawyers continue to look for ways to work around client requests for alternative fee structures, with the clear majority offering flexibility. Blended hourly rates, fixed fees, rising discounts, contingencies, monthly legal budgets, and a long list of other approaches are now an important selling point for many lawyers and firms. “We provide a fixed fee for almost all the work we do and clients love it as it provides them with 100-per-cent certainty as to total costs,” said one respondent. “Our fixed fee quote, however, may be priced over some other firms who provide a low estimated price but know full well the actual price will far exceed that number. Sophisticated clients know better and see our fixed fee as more than competitive taking everything into account.”

http://www.canadianlawyermag.com/images/stories/pdfs/Surveys/2010/cl_june_salary%20survey.pdf

INTERNET PROVIDES A SLIPPERY SLOPE OF POSSIBLE STATE AND FEDERAL LAW VIOLATIONS IN DIVORCE AND CUSTODY CASES

2011-07-11T09:30:00.000-05:00

All divorce lawyers are seeing a dramatic increase in the role of the Internet in their cases. People are communicating via email, connecting on social dating sites, using GPS devices and intercepting communications by their spouse on their computer. People are also impersonating other people on the Internet. The Mississippi Legislature has just passed a law prohibiting impersonating someone else on the Internet.

There are at least three Federal laws which can be brought into play with the use of the Internet.

The first major Federal statute to address electronic privacy issues is the Wiretap Act. This act dates from the late 1960s, and it is primarily aimed at telephone wiretapping. It was amended in 1986 to add provisions applying to transmissions of electronic data during an era in which most such transmissions were over telephone lines via dial-up connections.

The main operative provision of the Wiretap Act is 18 U.S.C. § 2511.

The 1986 amendments which added the electronic communications provisions to the Wiretap Act also added the Stored Communications Act (SCA), which applies specifically when stored communications are improperly accessed.

The relationship between the SCA and the Wiretap Act can be illustrated with an analogy to the game of football. Between the moment when the quarterback throws a pass and the moment when the receiver catches it, the ball is in the air and is subject to the rules governing interceptions. Before the quarterback throws the ball, or after the receiver catches it, the ball is not in the air, and it is subject to the rules governing fumbles. Under Federal law, the Wiretap Act is analogous to the rules governing interceptions; the SCA is analogous to the rules governing fumbles. The basic operative provision of the SCA is 18 U.S.C. § 2701(a).

A final relevant federal statute is the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030. The statute is violated when someone accesses a "protected computer," obtains "information," and either lacks access to the computer or exceeds the scope of any authorization granted.

MISSISSIPPI PASSES LAW PROHIBITING ONLINE IMPERSONATION

2011-07-01T09:10:00.000-05:00

House Bill 552 goes into effect today. It is entitled “AN ACT TO CREATE THE OFFENSE OF ONLINE IMPERSONATION; TO PROVIDE PENALTIES FOR VIOLATIONS; AND FOR RELATED PURPOSES.”

It provides as follows:

SECTION 1.

     (1) Notwithstanding any other provision of law, any person who knowingly and without consent impersonates another actual person through or on an Internet website or by other electronic means for purposes of harming, intimidating, threatening or defrauding another person is guilty of a misdemeanor.

     (2) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.

     (3) For purposes of this section, "electronic means" shall include opening an email account or an account or profile on a social networking Internet website in another person's name.

     (4) A violation of this section is punishable by a fine of not less than Two Hundred Fifty Dollars ($250.00) and not exceeding One Thousand Dollars ($1,000.00) or by imprisonment for not less than ten (10) days and not more than one (1) year, or both.

     (5) This section shall not preclude prosecution under any other provision of law and shall be considered supplemental thereto.

     SECTION 2. This act shall take effect and be in force from and after July 1, 2011.

CONTINUITY OF CARE PLAYS A HUGE ROLE IN A MAN’S RIGHT TO CUSTODY

2011-06-27T10:07:00.001-05:00

Many people and clients ask, “What are a man’s chances of getting custody?” This question comes from the common perception that there is a prejudice against men in custody proceedings. I usually answer the question in two ways. First, the question that needs to be asked, is, “What role has the man played in the raising of the children during the marriage?” Put another way, “Has he played the role of a primary caregiver?” I also respond by saying that custody of children is not a battle to be won or lost. Instead, it should be viewed as development by the Court or the parties of a “parenting plan” which best suits the needs of the children and reflects the care provided by both parents. It should be noted that a man can improve his chances of having more custody by increasing his involvement with the children after the separation.

These answers are borne out by the recent decision of Cuccia v. Cuccia, No. 2010-CA-00083-COA (Decided June 14, 2011), wherein the Court of Appeals stated:

“The Mississippi Supreme Court has shown that the stability and continuity of a child’s home environment between the time of the parents’ separation and the entry of divorce is an important consideration when determining custody. See, e.g., Jerome v. Stroud, 689 So. 2d 755, 757 (Miss. 1997); Law v. Page, 618 So. 2d 96, 102 (Miss. 1993)."

In assessing the role of Tony Cuccia in the upbringing of the children and granting him joint physical custody, the Court of Appeals observed:

“Additionally, the record also indicates that Tony took an active role in the children’s lives prior to the separation. Small examples of Tony’s involvement prior to the separation include his role as his son’s soccer coach, his role as his daughter’s “communion sponsor,” and his regular attendance at the children’s extracurricular events. It appears that Tony continues to participate in his children’s lives to the extent possible given his custodial restrictions.”

BOARDING OF DANGEROUS PITT BULLS COSTS WOMAN SOLE CUSTODY OF HER CHILDREN AND CREATES COURT RESTRICTIONS

2011-06-20T10:19:00.000-05:00

In the recent case of Cuccia v. Cuccia, No. 2010-CA-00083-COA (Decided June 14, 2011) the Court of Appeals decided that one legitimate factor in reversing a sole custody award to a woman was the boarding of dangerous dogs on her property. Julie Ann Cuccia testified she ran a dog boarding and training business as well as a dog rescue operation on the marital property and in the residence. She testified at the time that she was housing thirty-six dogs on the property and in the residence. The menagerie included numerous Rottweilers and pit bulls. Furthermore, on one occasion, the record indicates that a Rottweiler on the property engaged in a fight with another Rottweiler at the residence, wherein the instigating dog brutally attacked the other animal with such viciousness that the dog was eventually euthanized for safety purposes.

In a temporary order, the Chancellor enjoined Julie Anne from allowing more than three dogs to run loose or occupy any portion of the marital residence utilized by the family and the children. No dogs were allowed in the house weighing more than thirty pounds. However, Julie Anne was allowed to continue boarding animals of any number and any size in the garage portion of the residence, as long as the animals were penned or caged and separated from the rest of the home. The chancery court further allowed Julie Anne to continue boarding animals outside the house without restriction.

On appeal, the Court of Appeals noted the dangerous dogs as a factor in taking sole custody from Julie Ann and further ordered that, for the safety of the children, they must restrict Julie Anne’s ability to allow dogs of any number and weight to roam loose or occupy any portion of her residence utilized by the parties’ children as living space.

PARENTAL FIGHTING IS THE SUBJECT OF VALEDICTORIAN ADDRESS

2011-06-13T11:47:00.000-05:00

My book, The Constructive Divorce is dedicated to providing tools and techniques to lawyers and clients to handle divorces in a way that “leaves a family left standing even though there is no marriage.” In the Introduction to the book, I write: “The purpose of this book is to provide a guide to resolving family disputes in a manner which will lead to long term positive results for the families and children of divorce. This book is for family lawyers and their clients. There are many reasons to focus on long term constructive results for families. First, and most important, family problems almost always involve children. Poor handling of the family problem can leave scars on children which never heal.” A recent front page article in the Jackson Clarion-Ledger featured the problem of parental fighting and its damaging impact on children. The courageous high school valedictorian featured in the article openly described the damage that her parent’s fighting had on her. As a family lawyer, I hear reports every day of people who cannot contain their venom for their spouse or ex-spouse, and who fight in front of their children or who use their children as pawns in the battle. I shudder to think of the long term damage done in our society by this conduct.

PARENTS ENJOY A VERY STRONG PRESUMPTION OF CUSTODY, EVEN WHEN THEY HAVE NOT ACTED LIKE PARENTS

2011-06-06T09:30:00.000-05:00

In our society, it seems to be an ever increasing phenomenon that grandparents are left with the primary duty for caring for children. This is caused by many factors. Sometimes, it is caused by a teen birth where the mother is unmarried and incapable of providing the proper home. Sometimes it is caused by a total lack of responsibility where parental care is delivered haphazardly. Sometimes it is caused by drug use. Grandparents and other care givers in these situations often try to seize custody from the parent. To all who might view the circumstance, it might seem that the natural parent is not the best choice and should forfeit the actual legal custody. However, there is a very strong presumption that the natural parent should retain custody, even when they are doing a poor job. It appears from recent decisions of the Court of Appeals and Supreme Court that the care giver has to prove total desertion or abandonment before proceeding to analyze what is in the best interest of the child. While all cases must be judged on their own merits, Grandparents and other care givers should be on notice that the standard for taking custody away from the natural parent is very high.

In the Matter of the Petition of William and Sarah Smith, NO. 2009-CA-01955-COA (Decided May 31, 2001)

MISSISSIPPI ADOPTS UNIFORM INTERSTATE DEPOSITIONS AND DISCOVERY ACT

2011-05-23T09:07:00.000-05:00

The Mississippi Legislature has passed SB 2264 which adopts the Uniform Interstate Depositions and Discovery Act. Prior to adoption of the Act, there was no clear procedure in Mississippi for taking discovery in Mississippi in foreign actions. Now, the procedure is clear and easy. If a litigant in another State desires to issue a subpoena for deposition, production of documents, or inspection of property to a Mississippi citizen or entity, they need only submit the foreign state’s subpoena to the clerk in the County where the discovery is sought and the clerk will be required to issue a Mississippi subpoena to the Mississippi citizen or entity. The text of SB2264 may be viewed here.

ATTORNEYS FEES ARE JUST ABOUT IMPOSSIBLE TO OBTAIN IN MISSISSIPPI DIVORCE ACTIONS

2011-05-16T08:48:00.000-05:00

Many clients ask if they are going to be able to get their attorneys fees back. Clients who are victims of abuse or adultery are particularly interested in reclaiming the fees they have to spend as a result of their perception that the entire divorce controversy is the result of their spouse’s fault. Unfortunately for these clients, the answer is that they are not going to recover any attorneys fees if they have the ability to pay them, or if they receive assets in the divorce which will allow them to pay them. This law was unmistakably driven home by the Court of Appeals in the recent decision of Evans v. Evans, No. 2009–CP–00953–COA (Decided April 26, 2011) where they reversed a chancellor’s award of a mere $2,300 in attorneys fees to a woman who was forced to file a Motion for Contempt for failure to pay child support. The Court reiterated the rule that attorneys fees are not recoverable unless there is a clear showing of an inability to pay them.

TIPS ON MOVING OUT SURREPTITIOUSLY TO AVOID ABUSE

2011-05-09T09:34:00.001-05:00

Be sure he is gone. It is best if he is far enough away that he cannot get back in time if he is alerted.
Be prepared for the possibility he may have alerted a neighbor to keep an eye on things for him.
Move fast. Make sure all arrangements are made ahead of time and the timing is closely coordinated. Have enough people there at once to get the job done fast (note, however, the more commotion you cause, the greater the likelihood of being caught).
Identify what you want to take before you go so you do not have a delay in deciding.
Take what you must have; if you leave it, kiss it good bye.
Be careful who you tell about the move. You can never be sure who might squeal on you.
If you have a connection with local law enforcement, let them know what you are doing. Law enforcement are fickle on this issue. I have had some prevent a move when they were alerted by the other spouse.
Be careful not to damage things or to destroy the home. This will be used against you. You might even want to take pictures of what you left and the condition you left the house in.
If you take everything, be prepared for a violent reaction and for use of that against you in court.
If he catches you, be careful to avoid a breach of the peace. You may have to abandon the attempt in order to avoid violence or arrest.
Make sure you have people with you who can either control him physically or emotionally if he should catch you. Make sure everyone with you has the sense to avoid a breach of the peace or a fight.
Either parent has equal access to children until a court order is entered. You may take your child with you, but, remember, if you leave your child somewhere to which he has access without trespass, he can go get the child back. (Mississippi law)

CHECK THE LOCATION OF YOUR IMPORTANT DOCUMENTS AND MAKE A HABIT OF DOING THIS ANNUALLY

2011-05-02T09:27:00.002-05:00

I recently heard of a case where the parties are in the midst of a divorce and the prenuptial agreement signed by the parties cannot be located. It may have been part of an “old document purge” by the law firm that drafted it. I suggest that clients retain the originals of important documents and that they place them in a bank safe deposit box or a home, fire proof, safe. Take the reading of this blog as a prompt to check out where you have stored your important documents such as your will, power of attorney, advanced health care directives, and, of course, prenuptial agreements. If you have some form of calendaring system, create an annual reminder to check not only the location of such documents but the timeliness of them. In other words, make sure they don’t need to be changed or updated.

BEWARE OF TAX RETURNS PENDING DIVORCE

2011-04-25T16:57:00.000-05:00

A recently divorced lady told me she had filed a joint tax return during her marriage to her husband. Two years later she received a notice from the IRS that her spouse had failed to report a bonus, and they were both being assessed taxes on the deficiency. Persons entering a troubled time in their marriage or entering divorce proceedings should take great care in regard to income taxes. While it is often advantageous to both to file a joint return, a mistake or fraud on the part of the other spouse can become a joint liability affecting the non-offending spouse. If joint returns have been filed, care should be taken in drafting divorce agreement language which indemnifies each spouse from fraud or mistake by the other, but this will not absolve a tax payer from liability to the IRS.

MEDIATION SAVES THOUSANDS OF DOLLARS AND MONTHS OF DELAY

2011-04-18T09:48:00.000-05:00

For 33 years I have watched the ridiculous course the typical divorce follows. Each side hires an attorney. Minimum initial investment: $1,500 for each for the cheapest of lawyers. Then the lawyers start writing each other letters, which neither pays attention to, but charges the clients for. Then the lawyers file suit. There is a responsive suit. Then there is discovery: interrogatories, requests for documents going back thirty years, subpoenas, depositions, motions, lawyer fighting, all of which is billed to the client by the hour. Then, there are usually meaningless settlement negotiations, where each lawyer sends letters which are little more than posturing and pandering to their own client’s base emotions of resentment, anger and revenge. Then there is trial preparation. Finally, a year later, the trial date, whereupon the judge calls the lawyers into his office and encourages settlement. The lawyers then go out into the hallway and work with their clients under the pressure of the trial setting and settle the case. This tragedy plays itself out all over the country every day. A better way exists. It’s mediation. It can accomplish settlement of cases in relatively short amounts of time and for a fraction of the cost. See this very effective article on the tragedy taking place in the American Court system.

CHANGE YOUR WILL AFTER DIVORCE (IF YOU HAVEN’T ALREADY)

2011-04-11T09:02:00.002-05:00

A lot of thought goes into procuring a divorce and properly drafting an agreement or trying a lawsuit, but there seems to be little thought given to some of the details following divorce. Wills, advanced health directives and powers of attorney should have been changed long before a divorce is entered (unless prohibited by court order), but the entry of the divorce is a good time to review these matters and remove your ex spouse from these documents.

PAY ATTENTION IN COURT, AND DON’T TAKE ANYTHING FOR GRANTED

2011-04-04T09:27:00.000-05:00

Two recent decisions of the Court of Appeals involve cases where a man was served with a divorce complaint but did not show up for the final hearing and had judgments rendered against them. In both cases, there seemed to be very valid reasons why the man had failed to appear, but in both cases, the rulings were upheld. In Curtis v. Curtis, No. 2009-CA-01644-COA (Decided March 29, 2011), Henry Curtis was represented by an attorney in a contested divorce proceeding. During the pendency of the case, Henry’s lawyer was disbarred. Henry did not hire another lawyer to immediately assume responsibility. The other side set the case for trial and the clerk mailed notice of the trial to Henry. Henry didn’t appear. He argued that he should be given slack because his lawyer was disbarred. The Court of Appeals said “no” and held that the mailing of the notice to Henry was sufficient notice.

In Simmons v. Simmons, No. 2010–CA-00205–COA (Decided March 29, 2011), Betty filed a suit against Joey seeking a divorce. Joey did not answer the lawsuit. Joey and Betty continued to live together as husband and wife. One might surmise that Betty told Joey not to worry about the lawsuit, she wasn’t going forward with the divorce. But, she did. And, after she obtained the divorce, she and Joey continued to live together as though nothing had happened. She even testified in another court hearing that she and Joey were married. Joey sought to have the divorce over turned for lack of notice, but the Court of Appeals said “no.”

Bottom line: when lawsuits are involved, you can’t take chances and you can’t let your guard down for even a minute.

IS THE COURT OF APPEALS STARTING TO MANDATE MOTIONS FOR NEW TRIAL IN CHANCERY CASES?

2011-03-28T09:30:00.000-05:00

Several recent decisions of the Court of Appeals seem to be pointing in the direction of requiring the filing of a Motion for New Trial in order to preserve error on appeal. It has long been the thought and practice in Mississippi that such Motions were designed more for jury trials than Chancery cases decided by a Judge and were unnecessary to preserve error on appeal. The most recent decision pointing in this direction is Robinson v. Brown, No. 2009-CA-01599-COA (Decided March 22, 2011). In that case, the Court held that the appellant was procedurally barred from contending the trial judge did not make findings of fact in determining support because no post trial motion was made. An abundance of caution seems to mandate the filing of post trial objections to rulings in order to preserve error for appeal. Unfortunately, this can extend the life and expense of the case quite a bit and is usually futile because Judges tend to not change what they have already decided. It’s hard to get hearing dates, and as one Judge put it, he “didn’t even remember the case” by the time the Motion for New Trial was heard.

SOME POSITIVE FACTS ABOUT MISSISSIPPI CHILD SUPPORT

2011-03-21T10:21:00.000-05:00

I believe Mississippi is in the lead in the area of child support compared to most other jurisdictions. Most jurisdictions end child support at 18 and do not make provisions for college. In Mississippi, however, child support continues until 21, and support can include college if the parents can afford it. Child support can end prior to 21 if a child becomes emancipated such as by marrying or joining the military.

When drafting agreements, consideration should be given to allowing for a reduction in support if a child attends college away from home and the support payer is also paying for room and board in college. Consideration should also be given to specifying that college expenses will be paid past 21, because it usually takes until at least age 22 to finish.

CHANGE YOUR PASSWORDS AND YOUR FRIENDS

2011-03-14T09:19:00.002-05:00

We are all seeing statistics showing social networking leading to 25% of the marriage breakups and up to 1 in 8 of marriages. The evidentiary aspect of social networking is growing exponentially. Here are tips if your marriage is unhappy or in trouble. First, post nothing on the Internet that you don’t want the world to see.....it will. Facebook users now constitute a population as great as the third largest country in the world! Second, make sure all of your business transactions and internet communications are password protected. Finally, change all of your existing passwords on your bank accounts, email accounts, Facebook pages, and any other social media. Also, don’t use your iPhone for texting or calling people you shouldn’t be calling.

WHERE HAS MORALITY GONE? IS BYU RIGHT?

2011-03-07T09:00:00.000-06:00

A star Brigham Young basketball player was recently suspended from the team for engaging in premarital sex. Abstaining from premarital sex is a part of the school’s Honor Code. Brigham Young is run by the Mormon Church. It would seem obvious that most churches of all denominations would teach that sex should be reserved for marriage. We also know that premarital sex leads to pregnancy. This often happens to teens who are ill-equipped to raise a child. It also leads to increased probability of venereal disease. But a recent ruling of the Mississippi Court of Appeals makes it clear that a Judge does not have the right to impose restrictions on visitation which would prevent exposure of the children to premarital sex.

In Howell v. Howell, No. 2009-CA-01509-COA (Decided March 1, 2011), the Court of Appeals reversed a ruling by a Chancellor which prohibited a father from exercising visitation with his teenaged daughter while his girlfriend was also spending the night. The Court held that a Court cannot restrict visitation without a finding that the restrictions are necessitated by some adverse affect on the child. On the one hand, it seems commendable that the Court of Appeals is taking a position that government should not unnecessarily intervene in peoples lives. On the other hand, is it not also the place of the Courts to advance sound moral upbringing? Could it not also be said that allowing the child to be exposed by her father to premarital sex would be setting her up with a belief system that would expose her to her own unwanted teen pregnancy or venereal disease, not to mention the fact that fornication is technically still a crime in Mississippi?

INTERDISCIPLINARY COMMFUNICATION ABOUT FAMILIES AND DIVORCE IS NECESSARY

2011-02-28T09:26:00.000-06:00

The University of Baltimore Family Law Center and the ABA Family Law Section recently conducted a two-day “Family Matters Symposium.” One of the objectives was to bring together all of the different professionals who handle family matters. Ten years ago, as Chair of the Mississippi Bar Family Law Section, I conducted at least a half a dozen of such meetings. We had representatives from counseling, abuse centers, child support collection, religion, family promotion organizations, women’s organizations, lawyers, and the Courts. These types of efforts must continue and grow. All of the professionals who handle these matters must be constantly working together to gain perspective on the role each plays and the impact of their work on the other disciplines. For example, counselors who may be attempting to reconcile a marriage, should be aware of the possible impact of their efforts on the legal rights of the parties. I hope the idea of multi-disciplinary symposiums catches on and grows.

“COMMINGLING” IS NOT SUCH AN EASY ISSUE

2011-02-21T15:34:00.002-06:00

Many lawyers might think that taking separate funds and placing them in a joint account or asset “commingles” the separate asset and makes it “marital.” Some decisions in Mississippi have plainly stated that simple principle. But, recent decisions have made the issue of commingling quite a bit more complicated. In the recent decision of Allgood v. Allgood, No. 2009–CA–00858–COA, Decided February 15, 2011, the Court of Appeals held that a man should get credit for inherited funds placed in a joint marital home, even though he had previously placed the inherited funds in joint account. Despite two separate acts of apparent commingling, the assets were still held to have retained their separate character because they could be clearly traced to the inheritance. This decision probably brings Mississippi into the majority of jurisdictions, but it sure does make legal opinions almost impossible to render on commingling.

VENOM FOR EX’S NEW WIFE CAUSES MOM TO LOOSE CUSTODY

2011-02-14T09:56:00.000-06:00

Our firm counsels people to put their anger aside and act with civility during family law problems. Some people reject that advice, thinking it means we are not willing to fight for them. There is no question that there are many ways to practice law, and that many mean and difficult lawyers succeed in their cases. However, our system calls for people to act fairly. One of the great principles of family law practice is “the clean hands doctrine” which requires litigants to “do equity” before they can ask for equity. In simple terms, “if you have mud on your hands from slinging it, you may not get any help from the court.”

In the recent decision of McCarty v. McCarty, No. 2009-CA-01062–COA, young mother, Lisa, lost custody of her two young children because the court considered her hateful attitude towards her ex husband’s new wife was detrimental to the children. The best evidence of this was that Lisa admitted she had drawn a picture of the new wife in her daughter’s journal, as if the daughter had drawn it, and captioned the picture, “spit on Karen every day.”

The mud on Lisa’s hands cost her her children.

OUR FAULT SYSTEM OF DIVORCE IS A DISSERVICE, PARTICULARLY TO WOMEN AND POORER PEOPLE

2011-02-07T10:23:00.000-06:00

Over the past 25 years, most states have moved to a “no fault” based divorced system which allows people to divorce for almost any reason. Mississippi has resisted this and only allows divorce without fault where both parties agree. This situation has lead to what one Supreme Court Judge referred to as “divorce blackmail.” If one spouse wants a divorce but does not have grounds, such as adultery or cruelty, the other spouse can run them around by the nose in negotiations and extort less than favorable results in exchange for freedom from the marriage. I have seen mothers accept inappropriate custody situations and I have seen many men pay way too much–often more than they can afford.

There are valid moral reasons to protect the institution of marriage. No one will deny that, but the practical effect of preventing divorce unless there are fault grounds or agreement is that many good people are harmed. In my practice, there is no question that the people who are most often harmed by this system are women; women who have dedicated themselves to the family and have no independent financial means. They are trapped in bad marriages. Of course, I have had some high wage earners trapped in marriages too, but they are often able to buy their way out.

The Courts and the Legislature can change this. The Courts could relax their stranglehold on the high level of proof necessary to prove cruelty. They choose not to. Right now, the Mississippi Legislature has the issue before it in SB No. 2652. Its not a very good bill because it requires 5 years of separation to divorce, but it is a start. I urge people to express their feelings to their legislature about this. You can visit a local new story on this topic on my YouTube channel. This story relates the damage this law has done to one family.

SEPARATE PROPERTY IS COMMINGLED BY MARITAL USE

2011-01-31T11:58:00.000-06:00

As a rule, property which is acquired before a marriage and kept separate is not considered marital property. This is true even if the property should later become titled in the name of the non-owning spouse. However, the character of the separate property can be changed from separate to marital by conduct of the parties during the marriage, such as use. In the recent case of Rhodes v. Rhodes, No. 2009–CA–00555–COA (Decided January 11, 2011), Mr. Rhodes had purchased a vacation home in Florida several years before the marriage. During the marriage, Mrs. Rhodes vacationed in the home and later stayed in the home after hurricane Katrina damaged the parties’ Gulfport home. The court found that the home was converted from separate property to marital property by “family use,” and was therefore subject to consideration in the equitable division of property.

HOW AND WHY TO TRY RECONCILIATION

2011-01-24T08:46:00.000-06:00

As a divorce lawyer over the last 33 years, I have been frequently confronted with clients who wish to reconcile, even when a spouse has been guilty of considerable marital fault. Reconciling carries with it legal considerations–particularly in fault states–which must be considered with a lawyer. However, once the decision is made to pursue reconciliation, there are certain things to consider and certain tools to use to make the reconciliation effective.

Why Try to Reconcile? There are many reasons to try and reconcile. First, people usually make huge investments in their marriage relationship and it is a shame to lose that investment. Some people may have invested their entire adult lives and do not wish to see the investment branded as a failure. Others have children they want to raise in a two parent home. Others have moral, spiritual or other values which compel them to try everything possible to save the marriage. As long as you consider the possible consequences of a failed reconciliation, there is a lot to be said for knowing that you did everything you could to save the marriage before you relented to divorce.
Forgiveness. Reconciliation is not possible without practicing forgiveness. I once had a client who desperately wanted to save her marriage to her philandering Doctor husband. Unfortunately, she could not keep from being sarcastic about his girl friends from time to time. Her sarcasm alienated her husband. His attitude was, “What’s the use?!” She would call me and say, “Well, I did it again.” Finally, her husband gave up and left for good. Forgiveness actually benefits the person who forgives because it saves the person from living with the venom. Without it, reconciliation is not possible.
Counseling. Reconciliation requires expert help. We recommend that three counselors be employed, one for each spouse and one for the marriage. People often complain this is a waste of money. But, the real question is, how much is saving your marriage worth. Each person needs a counselor who is in their corner. The marriage needs a counselor who’s objective is to save marriage.
Separation. We recommend parties separate for six months while they are trying to rebuild their relationship. They should refrain from having sexual intercourse and should, of course, refrain from seeing or communicating with any other person who might interfere with the marriage. I find that people who try to reconcile while living in the same environment that created the trouble are simply running down the same rat maze to find no cheese. Getting back together might feel good for about two weeks, but then the luster wears off and there is a split again, and this time, its for good.
Reading. People who are reconciling should read everything they can on how to save a relationship. There are many books on the subject and many articles on line. This will arm each person with knowledge and perhaps some tools to rekindle the romance.
Go to Church or Synagogue Together. When people are having trouble in their life, it never hurts to turn their attention to their spiritual beliefs. The worship center also provides a community of support.
Make Marriage the Number One Priority. I had a business man in my office once who was complaining that he was failing at his marriage. I couldn’t quite detect what was wrong. He was very successful in business and he did not have any particular complaints. I asked him if he gave as much attention to his marriage as his business. He sheepishly replied that he did not. I asked him if he woke up thinking about his business, planned his day around his business and went to sleep and dreamed about his business. He said “yes.” I asked him if he thought if he gave that much attention to his marriage if it would be a success too. He sheepishly replied, “Probably so.”
Make Changes. I have had many spouses in my office who complain that their spouse wants a divorce because they won’t make certain changes, such as drinking less. When I ask why they won’t make the change, they often become defiant and ask, “Why should I have to do that. She should accept me for who I am.” I ask them if they recall when they were courting their spouse if they were willing to do whatever it took to get them to marry them. They usually reply, “yes.” I ask, then, “Why are you unwilling to court your spouse to save a marriage when you were willing to court to start it?” It always surprises me how unreceptive people are to this advice and logic. But, I fully believe that being willing to change is a necessary ingredient of any successful, long term relationship.

COOPERATIVE DIVORCE IS CHEAPER

2011-01-18T09:10:00.000-06:00

In thirty three years of practice, I have personally heard many people talking about wanting to “take someone to the cleaners,” or “teach someone a lesson.” Others have attempted to hire me to “teach someone a lesson.” One client told me he had come to me because he heard I was a “S__ of a b____.”

There are certainly occasions when aggressive lawyering is required. One of those situations involves a batterer who needs to be put in his place and with whom you cannot negotiate. Another involves people who simply cannot put their wrath aside to resolve things–they leave you no choice. But all experienced trial lawyers–in every field of law–know that 99% of all cases are ultimately settled. Unfortunately, many lawyers allow their clients to go down a long, expensive, litigation path before they settle.

Alternatives exist to bring about just results while controlling expense in both dollars and stress. “Collaborative law” involves formal agreements between attorneys to settle the case and to cooperate. Both attorneys sign a covenant not to litigate. This new medium for settlement exists in a few jurisdictions, such as Minnesota, California, and Texas. In states where this has not caught on, lawyers can still engage in settling cases in a collaborative fashion. One great tool for this is mediation.

A Recent article by Carole L. Camp in The Michigan Divorce Report points out that Collaborative divorce and mediation cost much less than their alternatives. The cost of mediation or collaboration is one to two thirds the cost of a divorce negotiated by attorneys, and only 8% to 25% of the cost of “full scale litigation.” Of course, the cheapest form of divorce is where the parties work the case out themselves, but this is usually only possible where there are no assets and no children. (If there are assets or children, lawyers should be involved to prevent irreparable damage.)

The bottom line is that the extra expense of a mediator is worth it. And those who cannot let go of their desire to inflict pain or play gains, will ultimately spend a lot more and usually end up with no different a result.

YOU CAN SUE AN OUT-OF-STATER IN MISSISSIPPI IF THEIR ONLY CONTACT IS TEXTS AND CALLS

2011-01-10T10:06:00.000-06:00

Mississippi allows people to sue people who break up their marriage through adultery. This action for money damages is called, “alienation of affections.” It is said there are only 6 states that allow this. As every one knows, each state has different laws, and citizens of one state are not generally subject to the laws of another unless they have what is called “minimum contact” with the state. Committing an act in Mississippi which is negligent or violates the laws of Mississppi can constitute minimum contact. In the recent decision of Knight v. Woodfield, No. 2009-IA-01371-SCT (Decided 1/6.11), the Court held that a Louisiana resident was subject to suit in Mississippi for simply texting, calling, and emailing the plaintiff’s wife in Mississippi. No allegations were made that the defendant ever set foot in Mississippi. This is a stunning development. With the prevalent use of texting, email, and social networking, this subjects people from far away places to suit in Mississippi if they are acting to participate in the break up of a marriage.

THE HOLIDAY CAN MAKE DIVORCE A REALITY

2011-01-03T08:58:00.000-06:00

Credit to Dr. Deborah Hecker, Psychotherapist, Miami, Fla.
One of the biggest challenges of the holidays for happily married people is dealing with the need for the holidays to recreate happy times of the past. Another, challenge is dealing with the New Year and the introspection it brings on life and goals for the new year. For divorcing or troubled couples, these feelings are amplified ten-fold. Quite often, the desire to “make it through the holidays” leads to a crystal clear realization that the marriage is not going to work. Dr. Susan Hecker, Psychotherapist from Miami, Florida, wrote in a recent blog that if the holidays have propelled you into accepting divorce, you may be experiencing the following:

Dread of living alone, perhaps for the first time in a long time
Fear of the future, especially anxiety over being alone and/or nervousness over dating and starting a new romantic relationship
An understanding of the fact that your soon-to-be-ex-spouse will be creating a new life for her/himself, and that the new life will include new romantic partners
Realization that you are going to have to create a life for yourself after your divorce
Awareness that if you want to be happy, you are going to have to take charge of your life and find happiness on your own instead of waiting for someone else to provide it

Dr. Hecker recommends counseling to assist you with these concerns. As a divorce lawyer, I recommend you also visit a divorce lawyer the second you feel a worry that your marriage is not working. My philosophy is that “if you are worried that you need a divorce lawyer, you do!” Lets get something straight, though, seeing a divorce lawyer, may actually ease tensions and help you save your marriage. On the other hand, if it is not to be saved, you will have taken action as quickly as you can to protect your rights and perhaps prevent a messy situation.

HOLIDAY TIPS FOR PARENTS OF CHILDREN IN DIVIDED FAMILIES

2010-12-21T08:37:00.000-06:00

The material below was written to help visiting fathers during the holidays. I felt the information was applicable to both parents, so I have adapted it to apply to both Fathers and Mothers. No one can tell you how to “best enjoy” the holidays, but it doesn’t hurt to stop for a moment and read someone’s “tips” and think about your children and perhaps adapt a tip or two to your situation. I know my 12 year old daughter seems to like the idea of “dates” with her Father, such as a traditional Saturday morning breakfast out, just the two of us. Think about this type of thing and the tips below and maybe you and your children will have a meaningful time.

ACTION POINTS for Committed Parents

Tell your children you love them, you're proud and pleased with them, and that you pray for them.
During the holidays, spend some time alone with each of your children -- walking and talking about their lives, their interests, their plans. Seek to understand them and affirm them instead of making any value judgments.
During the next few weeks, make it a priority to find ways to laugh with your children. Here's a joke you can use: What do you give the man who has everything? Antibiotics.
Consider giving each of your children a "gift of time" -- a coupon or solid commitment to do something together that he or she enjoys. Make plans to follow through on it soon.
To reinforce the importance of "gifts you can't buy," limit your kids' media time each day, or even try a media-free weekend this month. Replace it with fun family activities.
Read Luke 2:17-18 with your children, and talk about specific ways your family can imitate the way the shepherds responded after hearing the news of Jesus' birth.

Excerpted from information from Fathers.com

FIRST DIVORCE INSURANCE; NOW DIVORCE LITIGATION FINANCING

2010-12-13T09:15:00.000-06:00

On November 1, I blogged on divorce insurance, which provides benefits to people when they divorce. Now, we have lending for attorneys fees to pursue a divorce. The New York Times, the ABA Journal, and others are reporting on a new Beverly Hills lender that offers money for attorneys fees in divorce in exchange for a percentage of the take after the divorce. The company is called Balance Point and is run by Stacey Napp, a lawyer who created the company after struggling for many years with her own divorce. Balance Point caters primarily to females in cases where the marital estate is between $2 million and $15 million in net worth.

Attorneys fees to pursue divorce is a real problem in most states and certainly in Mississippi. If one spouse, (typically the man), controls the money, he can use his superior financial power to “out lawyer” the other spouse and force capitulation and perhaps settlement on unfair terms. Mississippi law seems to allow for the award of attorneys fees on a temporary basis, but few, if any, Judges allow such awards. Many Judges may feel that since they have no power to divide property until there is a divorce that they cannot make an award of attorneys fees to a spouse before the divorce. I have long espoused the belief that Judges should take control of cases early and determine the issues and their legitimacy, and perhaps award fees to the non-moneyed spouse to make sure they have equal representation. Without such temporary awards, financing of attorneys fees would certainly provide relief, but not many people would meet the Beverly Hills criteria of Balance Point.

HANDLE DIVORCE BUSINESS AS THOUGH THE UNTHINKABLE, SUCH AS A DEATH, MAY HAPPEN

2010-12-06T09:04:00.000-06:00

A client of mine recently died unexpectedly. It was a very sad event. We were all happy that he had been able to navigate the emotions of his divorce–which he did not want–and establish what he viewed as his dream life in the hills of the Appalachian Mountains. After his death, questions arose as to his estate, life insurance benefits, and benefits under his pension plans. His current wife had alleged that he failed to change his former wife as a beneficiary on one of his death benefits after the divorce. This lead his former wife to seek those benefits. Fortunately for the estate of this former client, our divorce agreements have at least two blanket waivers of any and all interests in pension plans or estates, etc. Also, fortunately for the estate, the client had changed beneficiaries on other death benefits at our urging. Our firm employs an “exit interview” where we meet with the client after entry of the divorce to go over matters that should be taken care of in the post divorce environment. This checklist is designed to make sure that the other parties’ name does not remain on credit cards, bank accounts, pensions, or life insurance policies. We remind our clients at the exit interview to take care of any of these loose ends, just in case they might have forgotten. This exit interview checklist may be found in my latest ABA book, Forms, Checklists and Procedures for the Family Lawyer which may be ordered by going to the “store” at our web site at www.chinnandassociates.com.

POOR DRAFTING OF DIVORCE AGREEMENTS CAN BE DOUBLE-EDGED SWORD

2010-11-29T08:49:00.000-06:00

Drafting divorce agreements is a perilous pursuit. It calls upon divorce attorneys to anticipate events way out in the future. Sometimes, it is impossible to anticipate the future, but many future problems can be prevented by careful draftsmanship. Attorneys should create a checklist for drafting agreements which is designed to prevent error. Our policy calls for agreements to be as specific as possible. For example, all assets and liabilities are specifically listed by name, bank and account number. Our checklist requires the drafter to specify what is to be paid, when the payments are to start and when the payments are to end. Nothing should be left unstated. (This checklist is found in Mark Chinn’s latest publication, Forms Checklists and Procedures for the Family Lawyer, available at ababooks.org.

The recent case of Lestrade v. Lestrade, NO. 2009–C)A0001354–COA (Decided November 9, 2010), tells this story well. In an agreement drafted in 1989, Audrey was to receive “one half of Oscar's Civil Service Retirement.” Well, Oscar didn’t retire and was still working at 71. Audrey sued, claiming she assumed he would retire at 65. The lower court agreed and reformed the agreement. The Court of Appeals reversed and said it was Audrey’s fault for not specifying when she would get the benefits. On appeal, Oscar complained that once he did retire, Audrey would be receiving one half of benefits he earned after the divorce. Again, the Court held that Oscar had failed to specify when Audrey’s right to accrue benefits ended, so they denied his Motion. The sword cut both ways.

THERE IS NO RIGHT TO EFFECTIVE ASSISTANCE TO COUNSEL IN CIVIL CASES

2010-11-22T08:58:00.000-06:00

Many people often confuse rights granted in criminal proceedings with those in civil proceedings. For example, there is a right to effective counsel in criminal proceedings. If a criminal defendant is indigent, he will be provided an attorney at the cost of the state. These rights do not apply in civil proceedings such as divorce or other family law matters. In the recent case of Parker v. Blevin, No. 2009–CP–00470–COA (Decided October 26, 2010), Parker filed a Motion to Modify custody. After filing the Motion, he fired his lawyer and represented himself. As a result of his self representation, he got sent to jail for failure to pay child support, and was denied the opportunity to modify his child support or custody, and received a judgment against him of $2,500 in attorneys fees. On appeal, he contended he was not effectively represented and the Judge should have helped him. The Court of Appeals stated in no uncertain terms that there is no right to appointed counsel or to effective assistance of counsel in civil proceedings.

ATTORNEYS FEES ARE GENERALLY NOT COLLECTIBLE

2010-11-15T09:22:00.000-06:00

One of the most common questions asked of me is whether a party can recoup their attorney’s fees from the other party. This is particularly important to people where their spouse is clearly the cause of the marriage break up through conduct such as adultery. Unfortunately, an award of attorney’s fees is extremely rare. The standard is that a party must prove that they have the inability to pay their attorney. Usually, parties have either paid their attorney or they receive sufficient assets in the divorce to pay their attorney, thus negating the right to receive fees. This principle of law was very recently affirmed in Forthner v. Forthner, No. 2009-CA-00916-COA (Decided October 19, 2010).

An exception to this rule is contempt proceedings where the Court can award fees to the aggrieved party. But, experience shows that courts typically award a fraction of what it actually costs.

IS PORNOGRAPHY CRUELTY GROUNDS FOR DIVORCE IN MISSISSIPPI?

2010-11-08T15:31:00.000-06:00

One of the hardest things to convey to clients is that divorce is hard to obtain in Mississippi. You cannot get a divorce just because your marriage is bad. There are even circumstances that many people would think would justify divorce, but are not sufficient under our laws. Pornography, apparently, is not sufficient grounds for divorce in Mississippi.

As noted in previous blogs, there are two ways to divorce in Mississippi. The first, is by agreement. This is called “irreconcilable differences.” Both parties must agree to divorce and to all of the terms of the divorce, or to submit what they cannot agree to a judge for decision. If one of the parties does not agree, then the other must have what are called “fault grounds” in order to obtain a divorce. Fault grounds include adultery, drunkenness, use of drugs, desertion, or habitual cruel and inhuman treatment.

The most common fallback ground for divorce is habitual cruel and inhuman treatment. In order to obtain a divorce on the ground of cruelty, the evidence must show conduct endangering to life, limb, or health or which creates a reasonable apprehension of danger. Another way to prove cruelty is to show that the conduct is so unnatural and infamous as to make the marital relation revolting. The Mississippi Supreme Court has recognized that something might be cruel to one person but not another. The non-offending spouse might argue that the conduct was so contrary to their moral values and life style as to make it “revolting” to them, given their particular personality.

In the 2003 decision of Hodge v. Hodge, 837 So. 2d 786 (Miss. Ct. App. 2003) the wife claimed her husband had a fondness for pornography and made her watch it against her will. She presented testimony from her Doctor who testified that she was suffering from her marriage. The wife had several illnesses, but the Court pointed out the Doctor did not relate the pornography to the illnesses. The Court went on to point out that the parties’ two children testified that they had never seen pornography in the house nor heard their Mother complain. (One has to wonder if it is reasonable to assume parents would reveal such a thing to their children). The Court noted that the most the wife could prove was that she was “discomfitted” by the pornography and this was not sufficient evidence of cruelty.

Remember, though, that each case turns on its own facts and the particular judge who hears the case, so don’t accept this decision as carved in stone for all cases.

DIVORCE INSURANCE: SOME FACTS AND PROS AND CONS

2010-11-01T14:05:00.000-05:00

Divorce insurance is being marketed by Wedlock Divorce Insurance. You may visit their web site at http://www.wedlockinsurance.com/. The basics of the insurance are as follows:

“The product is sold as individual policies. You buy it in units of coverage. Each unit is valued at $1250 at a cost of $15.99 per unit. For instance, if you bought 10 units of Divorce Insurance; it would cost you $159 a month.... Policy holders can buy up to 200 units of divorce insurance which is $250,000 in coverage.”

“Then, if you get divorced and your policy has matured (see below for the maturation rules), you would send WedLock proof of your divorce. In return, you’d receive a lump sum of cash equivalent to the amount of coverage you had purchased.”

You must wait four years to divorce to be covered, unless you buy an early divorce rider which allows coverage after 36 months.

A person may buy the insurance for himself. Spouses may buy the insurance for each other. Or a parent may buy the policies for their child.

If a married person buys the policy for him or herself, interesting questions arise. If the policy premiums are paid during the marriage with funds earned during the marriage, the policy could be considered a marital asset. In other words, the person who purchased the policy may have to pay their spouse a portion of the insurance proceeds! This seems to be a “con.”

A “pro” might take place where a parent, believing the child has made a bad marriage decision, buys the insurance. The purchase of the insurance would be with nonmarital funds and would probably not be considered a marital asset. Also, if a parent buys the insurance, the payment of premiums and the existence of the insurance would be less of a burden on the marriage. Purchase by parents, might actually be a smart move.

Of course, prenuptial agreements are enforceable in most states and can be used to protect spouses in a bad marriage.

SEPARATE MAINTENANCE IS AN OPTION FOR SUPPORT WHERE THERE ARE NOT GROUNDS FOR DIVORCE

2010-10-25T08:49:00.000-05:00

There is a little known action in Mississippi called, "separate maintenance." Separate maintenance is an action created by the courts to award financial support to a wife if the husband leaves the marriage or forces the wife to leave. It is a command to the husband to either return to the marriage, or support his wife if he refuses. Mississippi divorce laws make it difficult to divorce on the ground of habitual cruel and inhuman treatment. The standard is that the conduct must be a danger to life, limb or health or so revolting as to make the marriage relation impossible. The lesson here is that parties who are seeking a divorce on some fault ground, particularly cruelty, should always make the alternative plea for separate maintenance. That way, if the divorce fails, there may be a way to still obtain monthly support.

IN FAMILY LAW, YOU MUST ALWAYS "DO RIGHT" TO HAVE THE RIGHT TO ASK THE COURT FOR RELIEF

2010-10-18T09:48:00.000-05:00

It is a natural human reaction to want to retaliate against someone when they do wrong to you. For example, a mother might decide to deny visitation to a father who wont pay support. It seems like the natural thing to do, but in our legal system, it is the wrong thing to do. The doctrine of "doing right" is called, "the clean hands doctrine." It means that you must be able to show the court that you have done what you are supposed to do if you want the court to help you. The family law courts are not big on "self help." People should resist the urge to solve their own problems through retaliation. This is hard to do, and it is hard for clients to understand advice to continue "doing right" even though the other party is not. The strength of this doctrine is demonstrated in the recent decision of S.S. v S.H., No. 2008-CA-02051-COA (Decided September 28, 2010). In that case, a father was accused of sexual abuse. The charges became questionable and he was never indicted. However, in exchange for no prosecution, the father agreed to an order prohibiting him from any contact with the daughter until she was 21. Years later, the daughter was granted a change of her last name from that of her father’s, testifying that she wanted no contact with him, had no desire to see him and did not love him. The father countered that under such circumstances, his support obligation should be terminated. The Chancellor agreed. The Court of Appeals reversed, holding that since the father was in arrears on his child support in excess of $50,000, he did not have the right to ask for relief under the "clean hands doctrine." I’m sure the father thought it was logical that he should not have to pay support for a child he could not see, but he should have consulted a lawyer before he decided not to pay support. Had he paid support, there is a possibility his request to terminate support would have been granted, given the daughter’s attitude toward him.

IS “SEXTING” GROUNDS FOR DIVORCE IN MISSISSIPPI?

2010-10-12T09:18:00.000-05:00

Is “Sexting”grounds for divorce in Mississippi? It depends.

There are two ways to divorce in Mississippi. The first is by agreement. This is called “irreconcilable differences.” Both parties must agree to divorce and to all of the terms of the divorce, or to submit what they cannot agree to a judge for decision. If one of the parties does not agree, then the other must have what are called “fault grounds” in order to obtain a divorce. Fault grounds include adultery, drunkenness, use of drugs, desertion, or habitual cruel and inhuman treatment.

Is Sexting adultery? Sexting alone is not adultery. There is no ground for divorce called “attempted adultery.” However, Sexting may constitute circumstantial evidence of adultery. Where there is smoke there is fire, but without more, Sexting is not adultery.

The most common fallback ground for divorce is habitual cruel and inhuman treatment. In order to obtain a divorce on the ground of cruelty, the evidence must show conduct endangering to life, limb, or health or which creates a reasonable apprehension of danger. The “Sexter” might argue that Sexting is not aimed at the other spouse and therefore is not cruelty to them. Pure sexual banter, they would contend, is not dangerous conduct. In fact, it may be regarded as mere sexual fantasy.

Another way to prove cruelty is to show that the conduct is so unnatural and infamous as to make the marital relation revolting. In a case involving Sexting, the non-offending spouse would contend that the conduct–even though not directed at them–was so unnatural or infamous as to make the marital relation revolting. The Mississippi Supreme Court has recognized that something might be cruel to one person but not another. The non-offending spouse might argue that the conduct was so contrary to their moral values and life style as to make it “revolting” to them, given their particular personality.

In conclusion, Sexting might constitute grounds for divorce, and it might not. It will depend on the parties, the particular facts, and the Judge.

ATTORNEYS FEES ARE ONLY COLLECTIBLE IN DIVORCE IN MISSISSIPPI AFTER A SHOWING OF INABILITY TO PAY

2010-10-04T09:25:00.000-05:00

Most people are under the impression that attorneys fees can be collected from their spouse in a divorce, particularly if the spouse is guilty of misconduct, such as cruelty or adultery. However, the Mississippi appellate courts have repeatedly ruled that a party may not collect attorneys fees unless they show that they are unable to pay them. This seems to mean that attorneys fees are only collectible in cases where the assets that might be awarded are at least equal to the attorneys fees. It also means that persons who do not have assets to pay their attorneys must either borrow the money to pay their attorneys or ask their attorneys to work without pay until a recovery can be allowed. This legal stance was recently confirmed in the case of Sullivan v. Sullivan, No. 2009-CP-10657–COA (Decided 9/14/2010). In that case, Natasha was granted a divorce from Gerard on the basis of Gerard’s adultery. Gerard represented himself and Natasha retained an attorney. The Chancellor awarded Natasha $2500 in attorneys fees. The Court of Appeals reversed, finding that the record contained no evidence of her inability to pay her fees. (Note: the rules pertaining to attorneys fees in contempt cases are different.)

IT DOESN’T MEAN YOU ARE NOT A GOOD MOM IF AN ADOLESCENT CHILD SUDDENLY DECIDES THEY’D LIKE TO LIVE WITH DAD FOR AWHILE

2010-09-27T09:01:00.000-05:00

There is a somewhat surprising phenomenon where perfectly good mothers experience an adolescent child wanting to go live with their dad. I have had many of these mothers in my office. They report that their child has told them that they feel their childhood years are coming to a close and they want to spend a little of that time in the custody of their father. In their young, but surprisingly astute minds, they have calculated that precious years that can never be regained are about to be lost. You can also add to this phenomena the Dad thinking the same thing and wooing the child over to his side with gifts and new-found attention. This phenomenon is so prevalent that I have built a warning about it into my exit interview. I am not sure what a mother can do about it, other than maybe be sensitive to it and prepare to handle it in a way which does not make the child resentful.

AMERICAN AND CHRISTIAN IDEALS CALL FOR US TO SHOW TOLERANCE AND ACCOMMODATION TO ISLAM, NOT OBJECTION

2010-09-13T09:15:00.000-05:00

I usually confine my comments to family law matters, but the anniversary of 9/11 and surrounding events compel me to comment in some public way. Our country is based upon propositions ordained by GOD. America was initially populated by people seeking freedom from religious persecution. The United States was formed on the bed rock of freedom of religion. As hard as it may be, citizens of the United States should stand firm in protecting the right of Muslims to practice their religion and to build a Mosque where ever they desire, within the framework of zoning laws. No justifications should be based upon specious distinctions between what is legal and what is appropriate. Burning the Koran runs contrary to all notions of religious tolerance. Those who oppose the Mosque, and those who want to burn the Koran, and those who don’t want prosecutions to take place in New York, are not only acting contrary to our core beliefs, they are playing into the hands of the persons they seek to denigrate. Let us celebrate the unique and free country we created by showing tolerance in the most difficult of circumstances.

MISSISSIPPI LAW IS IN THE FOREFRONT OF CHILD SUPPORT, EXTENDING SUPPORT TO 21 AND TO COLLEGE

2010-09-07T08:53:00.000-05:00

Many clients ask how long support is payable. Most think it stops at 18. That is true for many states, but not in Mississippi, where the obligation to support stretches to 21. In addition, Mississippi law allows Chancellors to order payment of college tuition, and can even award other expenses such as fraternity and sorority dues, if such payments are in line with the income and customary standard of living of the parties. Saliba v. Saliba, 753 So.2d 1095 (Miss. 2000); Wray v. Langston, 380 So.2d 1262, 1263 (Miss. 1980)

NATIONAL MEDIA MAY FORGET MISSISSIPPI IN THE KATRINA REMEMBRANCE, BUT WE WON’T

2010-08-30T09:41:00.000-05:00

I watched several shows this past weekend remembering Katrina, and virtually none of the coverage focused on Mississippi. Mississippi didn’t just get hit with some wind and some flooding; it got hit by a tsunami. Entire towns were literally wiped off the face of the earth. Storm winds tore through all of southern Mississippi for 150 miles wreaking havoc, cutting off power and killing people. In Jackson, where I live, 150 miles north of the coast, many people were without power for weeks. Gasoline was rationed. Days after the storm, I traveled to Pascagoula, Ms, which was 100 miles east of the epicenter, to help some friends save some of their belongings. It was a war zone. Attached is a picture of the coast of Pascagoula with nothing left but rubble. However, as you can see from the picture, the storm did not dampen the spirit of the Americans living there. There were American flags everywhere, and the people were upbeat, courageous and working together. My friends gathered around a broken spicket in the neighborhood for water to drink and shower. They lived in their drive ways and barbequed. There was no fussing about their predicament. There was true American grit. I came away humbled by their spirit. So, remember New Orleans, but remember Mississippi too. Home of the brave!

PRACTICE/BUSINESS MANAGEMENT TIP: IF YOU GET TOO BUSY, YOU MAY BE SETTING YOURSELF UP FOR NOT BEING BUSY

2010-08-24T08:59:00.000-05:00

Last week I was in trial, depositions, mediations or hearings every single day, with three of those days being out of town. So, you might think things are going great. The problem is that I was not able to do any of my normal client care during that time and I was not able to preform any of my normal marketing activities (such as writing this blog). Businesses which are very busy should be sensitive to the fact that a downward spike in new business is likely to take place as a result of having a good business. The reason is that when we have a good business, we stop doing the things we did to get the business in the first place. In some cases, being too busy my be unavoidable. But, one solution is to be very careful with your scheduling. As I look back on it, I was so intent on getting some things done, I completely forgot about giving myself space. If you are busy, take care not to fall into the trap of trying to do it all at once. Build some buffer time in between appointments or hearings, etc. This will make life less hectic. It will make you more effective and it will keep the pipeline of new business flowing more freely.

WHY DON’T PEOPLE–LAWYERS IN PARTICULAR--USE TECHNOLOGY? IS IT BECAUSE OF THE BILLABLE HOUR?

2010-08-16T09:17:00.000-05:00

I am working with a lawyer who dictates a letter, scans it, has his staff e-mail it to me and then mails it. Another lawyer dictates his letters and then has his staff fax and mail the letter. My question is, “Why don’t they just type an e-mail?” E-mails are instantaneous, require no secretarial assistance, and their delivery and receipt are verified. There is no risk whatsoever that someone will say they didn’t get an e-mail. The worst thing that happens is that an e-mail might get diverted to junk mail. What am I missing? Is there some legal significance to placing a letter in the mail instead of relying solely on an e-mail? Could it be that there is reluctance to charge for sending an e-mail as opposed to a letter? Technology allows us to create a better product and to deliver it more efficiently and quickly. The billable hour discourages lawyers from investing in the obtaining and use of this technology, and it discourages lawyers from pursuing efficiency and imaginative approaches to producing legal results faster.

BUILD BRIDGES OF UNDERSTANDING TO IMPROVE DIVORCE AND POST DIVORCE CIRCUMSTANCES

2010-08-09T08:51:00.000-05:00

The process of divorce can be smooth or bitter depending on how you handle relationships. The same is true for the post divorce experience, particularly where co-parenting situations are involved. One of the greatest moments in my career came when I witnessed a client of mine in church having her children from two different marriages baptized with both the fathers and former husbands standing together at the alter. This miraculous event took place because I had counseled my client to “build a bridge” with her former husband and stop the post divorce war. I did this by suggesting she take the new wife of her former husband out for a glass of wine. She gladly accepted and a bridge between families was built.

Whether you are in the divorce process or the post-divorce process, look for “bridges.” If the parties are gripped in mortal combat, look for another way to bridge the gap. Perhaps there is a sister, brother, uncle or parent with whom a relationship exists. I often ask my clients, “What is your relationship with his/her parents?” If there is a good relationship there, then that can be a place to start to build a bridge to the opposing party.

For more techniques for building bridges, see my book, The Constructive Divorce, published by the ABA and available at ababooks.org.

THE GPS ON YOUR CELL PHONE TRACKS YOUR LOCATION AT ALL TIMES. WHAT ARE THE RAMIFICATIONS FOR DIVORCE?

2010-08-02T08:53:00.000-05:00

I have blogged previously about social networking, technology and divorce. In one, I pointed out that a young mother lost custody due to “bad judgment” in “posting photographs on her MySpace page of herself with different men, of herself at different events where she was surrounded by individuals who were intoxicated...”

In another blog, I noted that “pay as you go” phones can be purchased at almost any cell phone store and can be used to talk on cell phones without a record of any call and no bill, and that there is an iPhone app known as “TigerText” which destroys any text as soon as it is read, thus leaving no evidence.

Now, there is emerging technology regarding the use of iPhones for evidence because they automatically store use history, keystroke data, texts, emails and screenshots of emails the user thinks have been deleted. iPhones with GPS locator apps can be used to track every movement of the user! (A Detroit Free Press article touched on this recently.) Also, Apple has a service named, “Find My iPhone” which shows you the location of our phone if you have lost it. If you have this service, your location is certainly being tracked and mapped at all times.

This technology has huge ramifications in adultery matters and opens up a whole new area of concern about accessing this information within Federal and State laws.

AVOID DELAY AND CONFUSION BY BRINGING A COMPUTER AND PRINTER FOR IMMEDIATE ENTRY OF ORDERS

2010-07-26T08:55:00.000-05:00

I am amazed at the failure of lawyers to utilize the technology available to them to save time, money and confusion. One of those situations involves attending a mediation or court on a motion, hearing, or trial and then leaving without a typed and signed agreement or order. Attorneys typically leave such situations and return to their offices where one attorney later prepares the document and then sends it to the other attorney for approval. This takes extra time and requires a return to the Judges office after agreement is reached to obtain his or her signature. However, it is not unusual for there to be disagreement about what should be in the order. This takes more time and often results in the loss of an agreement or a return trip to the Judge to obtain the Judge’s guidance in the writing of the order.

Abraham Lincoln said, “Write your decree before you go to Court.” This is great advice. Attorneys should write their proposed Agreement or Order before they attend a mediation or a court hearing and then take their computer equipment with them to revise and print the document on site and obtain signatures of approval before departing. Sometimes this takes a little extra time on the occasion, but it saves incredible amounts of time and confusion in the long run. Many Courts also make computers available, and when this is the case, the attorneys can simply take a flash drive with a proposed order or agreement for ease of revision.

This situation is reflected in the recent case of White v. MDHS, No. 2009-CA-00537-COA (Decided July 20, 2010). In that case, a child support hearing was held in February and the Judge ordered an increase in support to take place beginning “on the first of the month.” However, the actual written Order was not prepared and signed by the lawyers and Judge until April 18. The payor of support contended his increased payments did not start until May 1, which was the “first of the month” after entry of the order. A hearing was held over the disagreement in the start date for the support and the Judge ordered that the correct start date was March 1, not May 1. The matter was then appealed. The Court of Appeals affirmed the trial judge’s ruling. So, a hearing and an appeal and all of the expense and delay that goes with them could have been avoided had an order been prepared on the spot at the February hearing.

KILL THE BILLABLE HOUR! ABA TAKES CLEAR STANCE AGAINST THE BILLABLE HOUR IN RECENT “E-ZINE”

2010-07-19T09:12:00.000-05:00

On July 1, 2005, Chinn & Associates dumped the billable hour. Scholars believe the billable hour evolved from cost accounting practices in the forties and gained full momentum in the 70's. Lawyers used to operate from fee schedules but these were banned by the US Supreme Court. The billable hour became king. The problems with the billable hour include:

It creates incentive to delay, because lawyers are paid more if the case takes longer.
It rewards inefficiency, because lawyers are paid more if things take longer.
It discourages the use of innovation and technology because lawyers are not rewarded for doing things faster or more efficiently. The opposite is true.
It discourages early resolution and the use to of positive dispute resolution techniques such as mediation, because lawyers are paid less when they accomplish quick results.
It discourages imagination, because lawyers are paid for time instead of results.
It leads to “process thinking” instead of “resolution thinking” because lawyers are not given an incentive to concentrate on a clear mission, but are encouraged to allow the mission to evolve.
The client never knows what their case is going to cost until the end.
It discourages genuine service and regular client contact, because clients know they are being charged for every “service” they are being provided.
It interferes with good legal work because clients are reluctant to contact their lawyers or ask them to perform certain tasks for fear it will cost them more.

The ABA Law Practice Management Section has been addressing this issue for over 20 years. In a recent “e-zine” the Section produced seven articles dealing with dumping the billable hour. These articles are worth reading for any lawyer or client. I have also written an “e-book” entitled, “Dumping the Billable Hour” which can be obtained on my website at http://www.chinnandassociates.com/store.html#ebooks.

The Billable Hour Zombie: Why You Need to Act Now to Avoid an Attack on Your Business
By Jessika M. Ferm
Various factors seriously threaten the traditional hourly billing system—but some easy-to-implement strategies will help you realign.

Make Time Work For You: Handling Cases on a Fixed-Fee Basis
By J. Benjamin Stevens
There are multiple reasons why handling cases on a fixed-fee basis is better for both our clients and ourselves.

Fixed-Fee Engagements in Litigation Cases: Why and How
By Michael Sherman
Making the argument for why fixed fees are better than hourly billing, along with practical tips for how to make the switch.

Client-Directed Billing: Shifts in Who Defines the Value of Legal Services
By Jim Calloway and Mark A. Robertson
More and more, clients are directing how the value of the legal services they use is determined and many of them are looking at alternatives to hourly billing.

From Practice to Business: Flat-Fee Relationship Engagements for Transactional Lawyers
By Kevin E. Houchin
Getting beyond the hourly billing trap requires admitting there’s a better way—and then acting to implement it.

Getting Creative with Your Fees
By Micah Buchdahl
The creativity can be endless, if you are willing to simply change the way you are used to doing business.

Making Alternative Fee Arrangements Work in Corporate Litigation
By Ed Poll
Why and how to employ an alternative billing philosophy in which lawyer and client share risk based on the case’s outcome.

TRIAL TIP: SUBPOENA YOUR OWN WITNESSES TO TRIAL

2010-07-12T08:43:00.000-05:00

Lawyers typically don’t subpoena their own witnesses to trial. There appears to be no need since friendly witnesses are going to appear of their own free will. It also saves money and effort in issuing and serving subpoenas. But what if your witness is prevented from attending trial due to something beyond their control? This happened to me recently. My own expert was supposed to attend trial on a certain day. We elected to subpoena her just for technical reasons. She was not only a critical witness, she was the only witness that could substantiate my case. She called me an hour and a half before the hearing was to begin and told me she was stuck in another emergency hearing and the Judge would not release her to come to our hearing. My first thought, was, “Thank God I subpoenaed her, or I might not be able to get a continuance.” I’m not one for engaging in needless formality, but many times in law, it is important to follow the technical details carefully in order to avoid disaster.

PRACTICE TIP: TEMPORARY ORDERS ARE A GOOD IDEA, EVEN IN SETTLEMENT CASES

2010-07-06T09:19:00.000-05:00

Most authorities agree that litigation should be discouraged. Many would argue that reconciliation should be pursued whenever possible. However, waiting to protect legal rights in legal proceedings can result, on occasion, in serious damage. For example, the general rule is that the accumulation of marital assets lasts until the entry of divorce. This means that assets acquired and wages earned during a period of separation but before divorce, could be considered to be marital assets and divided. A good example is found in the recent case of Wheat v. Wheat, No. 2008-CA-00476-SCT (Decided June 24, 2010). In that case, Judith Wheat had an affair with a co-worker in September, 2004. As a result, she resigned her position and received a severance of almost $400,000. Apparently, she and her husband attempted to work things out until their separation on March 1, 2005. The parties then attempted to negotiate a faultless divorce, but that failed and Mr. Wheat filed for divorce on adultery on May 27, 2005. It is unclear when the severance was agreed to or paid, but, in the end, the severance was included in the marital assets and divided. Judith contended that the severance was for future wages, but the Supreme Court disagreed and affirmed the division of the package.

The practice question is whether Judith would have been better off financially filing for divorce and obtaining a temporary hearing and order before the severance was paid. The law seems clear that the accumulation of marital assets can be considered to stop after the entry of a temporary order. The practice tip is for parties and attorneys to consider entering into a temporary order, even though negotiations are amicable, in order to prevent assets being deemed marital that probably should not be. Another matter to consider is the tax deductibility of payments made during negotiations. If they are paid pursuant to an order and the wording is correct, the payor may be able to deduct the payments.

PRACTICE TIP: FILE A MOTION FOR ADDITIONAL TIME TO PREVENT POSSIBLE DEFAULT

2010-06-28T08:51:00.000-05:00

The practice of law is a veritable minefield of deadlines and rules. Deadlines probably cause lawyers to lose more sleep than anything. Lawyers should purchase case management software to help them monitor deadlines and prepare properly for motions and hearings. Another technique for taking the worry out of practice is to file a Motion for Additional Time the very second a complaint or counterclaim is received. For example, the lawyer receives a complaint for divorce against one of his clients. Rules of procedure require an answer within a certain time frame or a default judgment might be entered against the client without further notice. The first action should be to calendar a reminder for when the answer is due. The second action should be to file An Entry of Appearance with a Motion for Additional Time to Answer. We usually ad a “general denial” just for extra protection. This form can be generated in moments by trained staff and filed immediately.

Once this is filed, the worry about the deadline is significantly diminished because the rules of procedure require notice of all proceedings to all parties who have entered an appearance. Of course, steps should be taken to file a timely answer, but this process relieves a significant amount of worry. This procedural matter was revealed in the recent case of Burnsed v. Merritt, NO. 2009-CA-00051-COA (Decided June 22, 2010). The Court reversed a decision where no notice was served on a defendant who filed a Motion for Additional Time. The only caveat to this technique is where there are jurisdictional questions. If there are such questions, the filing of the Motion for Time could negate the jurisdictional challenge. This technique and the form Entry of Appearance will appear in my next book: Forms, Checklists and Procedures for the Family Lawyer which is to be published this summer by the American Bar Association.

YOUNG MOTHERS BE CAREFUL WITH ROMANTIC INTERESTS; YOU COULD LOSE YOUR CHILDREN

2010-06-21T15:44:00.000-05:00

There are many times in family law where we lawyers simply do not know how a judge is going to rule. However, it seems almost uniform that judges do not like custodial parents having lovers stay overnight with the children present. The feeling against that is so strong that it can lead to a loss of custody. The recent case of Sullivan v. Beason, No. 2008-CA-01827-COA (Decided June 15, 2010) is a good example. There, the young mother of two minor children lost custody because of alleged failure to provide a stable home and for immorality. Proof showed the Mother had a boyfriend who would stay overnight several times per week. The children were also tardy getting to school 18 times during the first semester. The Mother also took up with another boyfriend who was violent, but she got rid of him.

The Court found that even though the children were doing well in school and did not seem to be directly affected by the Mother’s problems with men, the fact that the children were not able to attend school the next day is evidence the children were adversely affected by the Mother’s activities. This case ought to cause all divorcing and divorced parents to think about how and when they introduce members of the opposite sex to their children.

DECEPTION AND IMMORALITY COST STAY-AT-HOME MOM CUSTODY

2010-06-14T16:25:00.000-05:00

In my early March, 2010, blog I dealt briefly with the complex legal issues that can arise with assisted reproductive technology, commonly called, “artificial insemination.” The recent case of Wells v. Wells, No. 2001-CA-01813-COA (Decided June 1, 2010), brings some of theses issues to life. Reyna was a nurse and Forrest was a plastic surgeon. During their marriage, they utilized artificial insemination to parent twins. After the birth, Reina stopped working. Later, unbeknownst to Forrest, Reina had herself artificially inseminated with a donor sperm resulting in the birth of a third child. Reina deceived Forrest into believing this was his child until she was about 8 months pregnant. Forrest could not abide by Reina’s deceit and separated. Later, Reina developed a relationship and Forrest sued for adultery. The trial court awarded custody of the twins to Forrest. He found the parties equally suited for custody in every way except moral turpitude which he found favored Forrest. The trial court found that intentionally deceiving Forest about her pregnancy brought “her moral fitness into question.”

The trial court also considered her adultery and found that she exercised poor parental judgment in allowing her boyfriend in the home overnight with the children there (at the time the children were 3). Once again, a woman loses custody of her child because she allows a man to stay overnight in her home with the children present.

COURT SAYS IT’S OK TO AWARD CHILD SUPPORT FROM MENTALLY DISABLED MAN EARNING ONLY SSI BENEFITS WHICH ARE EXEMPT FROM SEIZURE

2010-06-09T15:18:00.000-05:00

The Social Security Act established SSI to assure a minimum level of income for people age 65 and over who are disabled and do not have sufficient resources to maintain a standard of living. The Social Security Act specifically prevents any person from taking this money. In Barnes v. DHS, No. 2009-CA-00438-SCT (Decided June 3, 2010), the local Chancellor ordered totally disabled Kenny Barnes to pay $100 a month in support out of his monthly SSI payments of $637. Barnes had no other income or assets. Barnes appealed, claiming Federal Law prevented “attachment or garnishment” of his benefits. The Supreme Court agreed holding that Barnes’ SSI could not be subject to garnishment or withholding because such was prohibited by Federal Law. However, the Court stated that Chancellors can calculate support using SSI income as a consideration. The interesting question is that the only way to enforce a support order without attaching, garnishing or withholding is to place the payor in jail for contempt. Does this mean that a totally mentally disabled man who receives only $637 per month in income for his disability is liable to confinement in jail for not paying money which is specifically exempt from seizure?

BE CAREFUL WHEN DIVIDING PENSIONS OR STOCK ACCOUNTS

2010-06-01T10:30:00.000-05:00

Financial determinations in divorce cases are a moving and blurry target. Stock accounts and pension funds, in particular, vary in value from nanosecond to nanosecond. This makes writing language to divide these accounts treacherous territory. If you divide the accounts using a per centage, a change in the value of the account could upset the overall intended division of assets. If you use a number, problems are created when the amount of the account changes. A good example of this is found in the recent case of Wood v. Wood, No. 2009-CA-00679 SCT (Decided May 27, 2010). In that case the parties divided a pension account, using the following language in the agreement: “Wife shall receive $203,200 from the GGC savings account which has an estimated balance of $376,000. Husband shall receive the sum of $172,800.”

The agreement was made before the 2008 market crash. By the time of the hearing on the matter, the account was $206,000. The Wife contended she was owed the amount of $203,200. The Husband contended that even though they used specific numbers, they really intended to divide the account 54/46%. The court found that even though they did not use per centages, it was logical that they intended to use per centages because they used an estimated amount of the account and stated amounts for each person. The Court noted that to construe it any other way would make it impossible for the parties to pay each party what was specified.

One has to ponder how lucky the husband was that his lawyers stated an amount to go to him. Had they not, it is likely he would have lost the battle and ended up giving almost all of the account to his former wife.

While the vicissitudes of life make it nearly impossible to draft agreements to cover every contingency, the Wood case demonstrates the importance of using precise language and maybe even including some examples. For example, perhaps the husband’s lawyer should have made sure the agreement said, “The parties intend to divide the account by a per centage of 54% for Wife and 46% for husband, which at the present date would mean that Wife shall receive $203,200 from the GGC savings account which has an estimated balance of $376,000 and Husband shall receive the sum of $172,800. The parties recognize that the market balance will change from day to day and such change will change the actual amounts each receives, however, the per centage shall remain 54% for Wife and 46% for husband.” The Wife’s attorney might have tried to use the following language: “The parties intend to divide the account so that Wife shall receive $203,200 or 57% of the account upon the date of division, whichever is greater, and husband shall receive the balance. For example, if the amount of the account is greater than the current amount at the time of division, Wife shall receive 57%, even though that may be greater than $203,200. On the other hand, if the amount of the account is less than the current amount at the time of division, Wife shall still receive $203,200, even thought that may be a greater per centage than 57%.”

Of course, the problem with talking about what should have been done is that agreements are negotiated, and lawyers often cannot get the exact language they want in the give and take of negotiation.

WESTERN AUSTRALIA CHIEF JUSTICE CALLS FOR A SHAKEUP OF HOURLY BILLING

2010-05-24T14:33:00.000-05:00

In a Law Week speech to the Perth Press Club on May 17, 2010, Western Australia Chief Justice Wayne Martin called for a shake up of the practice of hourly billing. He stated that “there are serious problems with time billing in that it rewards inefficiency, encourages lawyers to spend more time, limits customer satisfaction and does not focus on outcomes.” You may view a news story about the speech here.

Chinn & Associates saw the serious problems with hourly billing back in 2005 when we abandoned hourly billing and adopted “value pricing.” The movement away from hourly billing has been led by the American Bar Association ABA Law Practice Management Section Task Force on Alternative Billing Methods in 1989. This Task Force published Beyond the Billable Hour: An Anthology of Alternative Billing Methods. In 2002, the ABA Commission on Billable Hours published its report.

The report contained a Preface by ABA President Robert E. Hirshon which discussed the many reasons for abandoning the billable hour. In the first sentence of his Preface, he opines that “many of the legal professions contemporary woes intersect at the billable hour.” He writes that the billable hour is responsible for a lack of balance in lawyers lives, negative impacts on lawyers families, loss of professional mentoring, decrease in lawyer service, less collegiality and a loss of focus on efficiency.

There have been three important ABA publications on alternative billing: Beyond the Billable Hour: An Anthology of Alternative Billing Methods, Winning Alternatives to the Billable Hour, and Billing Innovations: New Win-Win Ways to End Hourly Billing.

The ABA has recently stepped up its efforts to promote the concept of value pricing. The ABA Journal from August, 2007, was entitled, “The Billable Hour Must Die.” It featured an article with the same title by Chicago author and lawyer, Scott Turow, in which he concluded:

“If I had only one wish for our profession from the proverbial genie, I would want us to move toward something better than dollars times hours.”

Chinn & Associates works hard to create customized, fixed and capped prices for its clients which are related to the value of the project to the client and the resources of the client and resources necessary to deliver superior legal product which is “outcome and service oriented” instead of time oriented.

FOUR AREAS OF INQUIRY ON PRENUPTIAL AGREEMENTS

2010-05-17T10:59:00.000-05:00

Prenuptial agreements are enforceable if properly prepared and executed. While some people might call them “romance killers,” they can be effective tools for preventing litigation and for saving assets for children from another marriage. Here are the four key inquiries:

Was there adequate financial disclosure? The way to solve that inquiry is to attach accurate financial statements.
Was there legal counsel? If both parties have counsel, there is little chance the agreement will be set aside on the grounds of duress or ignorance.
Was there fraud or duress? Many agreements are handed to the prospective spouse on the day before the wedding with the ultimatum, “sign this or there will be no wedding.” Such conduct places the agreement in great jeopardy of being set aside. The best practice is to have the agreement signed weeks in advance of the wedding with both sides being represented by counsel.
Is the agreement unfair? This is a very vague inquiry, but if a court feels the agreement is patently unfair, they may set it aside on that basis alone. However, if there is adequate financial disclosure, counsel, and plenty of time to evaluate the agreement, it is probably not going to be set aside on this basis.

Source: “Prenuptial Requisites” by Mark A. Chinn and Charles Greer, Family Advocate, American Bar Association Family Law Section, Vol. 24, No. 3 (Winter 2002) (see www.abanet.org/family/advocate)

YOU HAVE RIGHTS IF YOUR SPOUSE LIED IN THE DIVORCE ABOUT PROPERTY, BUT DON’T DELAY IN EXERCISING THEM

2010-05-10T14:41:00.000-05:00

There are surely many occasions where a party lies in a divorce proceeding about assets, and that lie is never uncovered. But sometimes a lie is discovered. For example, there are more than a few cases where a party has won the lottery and not disclosed that winning in the divorce proceeding, but caught later. Rules of procedure in most states allow a party to challenge a ruling for lack of disclosure of assets or other evidence. These rules typically allow this challenge to take place for up to 6 months after the entry of the order of divorce.

Our firm has a case management system which allows us to program important dates and deadlines into our calendar and reminder system. We have programmed this system to send a letter to clients five months after their divorce advising them that they may be able to challenge any order or agreement of divorce if they have discovered evidence that was not properly brought to light during the proceedings. Parties should be very careful to make sure they bring these challenges within the normal 6 month time frame after divorce. However, this time frame might be substantially extended in certain situations.

The recent case of Trim v. Trim, No. 2007-CT-01648–SCT (Decided April 29, 2010) contains such a situation. In that case, the man filed a financial statement during the divorce stating his business stock was worth $100,000. More than a year after the divorce, the man became embroiled in litigation with his fellow stockholders and his stock was valued at over a million dollars. Upon learning of this, the former Mrs. Trim filed a Motion to set aside her divorce decree based upon fraud in stating the value of the stock. The Chancellor agreed and awarded Ms. Trim additional money. The Court of Appeals reversed, holding that Ms. Trim should have brought the fraud to the attention of the Court within the traditional 6 month time period. The Supreme Court reversed, finding that the fraud was a “fraud upon the Court” and the 6 month time frame did not apply.

The lessons in this are as follows:

Remain vigilant after your divorce for any possible fraud that may have been perpetrated upon you. You may be able to something about it.
Take the 6 month deadline seriously and make sure you examine the situation within that time.
Fraud upon the Court may be uncovered long after the divorce and dealt with.

A COUPLE OF TECHNOLOGY TRICKS TO LOOK FOR IN CONCEALING AN AFFAIR

2010-05-03T15:03:00.000-05:00

Lawyers seeking proof of adultery often subpoena cell phone records. When there is an affair, these records will usually show multiple calls per day, long calls and calls at odd hours and early morning hours. If you are suspicious of an affair, the first place to look is the cell phone for texts and the cell phone bill for these unusual calls. If your spouse is savvy to this, they have a couple of technological tools to hide the verbal contact. One is a pre paid or “pay as you go” phone which can be purchased at almost any cell phone store and even Walmart. When both parties use these phones, there is no record of any call and no bill. If your spouse has such a phone, this is a sure red flag. Another technology is an iPhone app known as the “tigertext” app. This app destroys any text as soon as it is read, thus leaving no evidence. So, if you see this app on your spouses’ phone, that is a sure fire sign of shenanigans.

SHOULD A WOMAN DISABLED BY BIRTH BE DENIED ACCESS TO HER CHILDREN? SHOULD THEY BE DENIED ACCESS TO HER?

2010-04-26T12:05:00.000-05:00

I usually write about concrete concepts of law, and rarely make personal comments, but I am moved by the plight of Abbie Dorn and her parents who are being denied visitation of any kind with her triplets. Abbie became totally disabled during child birth. She held her triplets only once. Later the father divorced Abbie and has custody of the triplets in California. He and his lawyer are denying Abbie any visitation. The reasons are that she is in a vegetative state and cannot communicate whether she wants to see her children, and that it would be traumatic for her young children to see her.

As a family lawyer, I cannot conceive of a just basis for denying contact between a mother and her three children where there is no overt danger to them. I don’t have all the facts, but I would like to know what possible basis there could be to support this position. It would seem to me that some day these children are going to become very resentful of being deprived of experiencing their life, which includes a mother who gave her normal life for their birth. What other psychological damage might befall them? For the mother’s part, what kind of pain is she suffering but unable to express? What torture is she quietly bearing? If there are people, lawyers, or mental health professionals out there with viewpoints on this, I would like to hear from them.

SIMPLE RULES FOR SEIZING CONTROL OF YOUR LIFE

2010-04-19T09:35:00.000-05:00

Most people let their life activities, responsibilities and businesses control them, when the truth of the matter is that those pursuits should be used to serve the purposes of your life. Here are some simple steps for gaining control.

Write a personal mission statement. Write down what you want to achieve and what the purpose of your life is. Its hard to do but it pays off, just the way the U.S. Constitution has paid off for America.
Develop healthful and efficient habits and stick to them. Create routines for everything you do. Think of Michael Jordan shooting a basketball. He had a routine he followed every time. Three dribbles, a back spin of the ball, breath, visualization, shoot. Translated: get up at the same time every day, eat at the same times every day, determine when you are going to work and when you are going to stop work. Try to do it the same way every day.
Create scheduling rules. Study what stresses you. Study when you like to do certain things and when you are most effective. For example, in my practice, I do not schedule appointments before 9:30. This allows me time to organize my day. I don’t schedule appointments “back to back.” This allows me to collect myself and prepare myself for each appointment.
Write a list of things to do each day. If you find yourself becoming frantic, go back to the list and simply follow it. This will calm you and bring focus.
Don’t allow interruptions. If you need to focus on something, don’t take that phone call. Let them know you are working on something and will call them back.
Schedule time for vacations as well as some time off each week. Schedule them well in advance. Put them on your calendar and stick to them.
Schedule 15 minutes of quiet time, meditation or prayer each day, preferably in the morning. Study breathing techniques to enhance the experience.
Determine a time you are going to leave work each day and stick to it. There will be plenty to do tomorrow and there is no point in trying to get it all done today. You will find yourself becoming infinitely more focused and efficient and you will enjoy life more.
Work out hard 6 times a week. (If the President has time to do it, so do you).

For more on this, see my book, How to Build and Manage a Family Law Practice, published by the ABA Family Law Section and available at ababooks.org and through my website, chinnandassociates.com.

A CHILD’S PREFERENCE IN CUSTODY CASES IS NOW DIMINISHED: LAW CHANGE

2010-04-15T16:39:00.000-05:00

A recent Court of Appeals decision underscores the misperception of the public that a child can select the custodial parent once he or she reaches the age of 12.

Section 93-11-65 has always provided that a child over the age of 12 has the right to state a preference for which parent should have custody. Prior to 2006, the statute stated that a child over 12 had the “privilege” of choosing the parent to live with as long as both parents were fit and it was in the best interests of the child.

In 2006, the Legislature amended the statute to provide that the Chancellor “may consider the preference of a child of 12" in considering determining the best interests of the child. In the recent case of Phillips v. Phillips, NO. 2008–CA–02019–COA (Decided April 6, 2010), the Court of Appeals opined that the subtle language change in the statute has weakened the power of the child’s preference in a custody determination. In so finding, the Court affirmed a decision of a Chancellor declining to accept the preference of a 14 year old to live solely with her father.

IS INCREASE IN AN IRA AFTER MARRIAGE MARITAL PROPERTY?

2010-04-06T16:27:00.000-05:00

A key issue in determining marital property involves the “commingling” of property that was either brought into the marriage or received by gift or inheritance during the marriage. Another key–and sometimes connected–issue is the increase in value of separate property during the marriage.

The recent case of Gregg v. Gregg, No. 2008–CA–02025–COA (Decided March 23, 2010) provides examples of these key issues and also creates what may be some confusion.

Prior to marriage Joe owned a home into which the couple moved after marriage. The couple renovated and added on to this home. The court determined that this home was marital property because they had lived in it and spent joint funds on the renovation. This is consistent with what is known as “commingling” by “marital use.” On the other hand, Pat had a home acquired before the marriage, but the couple never lived in it. The Court found that even though Joe performed some chores on the home, the chores were not significant enough to cause the home to lose it’s separate identity. The Court also held that the increase in the value of the home was not marital property. This would be consistent with law that holds that “passive” increases in the value of non marital property are not marital.

The confusion: Joe had an IRA which had $38,000 in it at the time of the marriage and $86,000 in it at the time of the divorce. He argued that the increase in value was not marital property; that it was a “passive” increase which was not the result of marital effort or contribution. Joe’s position is consistent with the overwhelming majority of jurisdictions that hold: “Appreciation in separate property is marital property if it was caused by marital funds or efforts; otherwise, it remains separate property.” Equitable Distribution of Property, by Brett R. Turner, (McGraw Hill 1983, 2nd ed.) Contrary to prevailing authority, the Court of Appeals, stated simply, “the retirement income which was accumulated during the marriage is marital property.”

Perhaps there are some facts which would explain this. It is hoped that the court clarifies this apparent deviation from traditional views on the “passive” increase in separate property.

DOES YOUR DIVORCE ATTORNEY CHECK ON YOU POST DIVORCE?

2010-04-01T17:38:00.000-05:00

Our firm follows an elaborate post closing follow up with the client. Our case management software allows us to calendar important dates in the future with the preprogrammed “touch of a button.” I got the idea for this when a client of mine from many years before was lamenting how she had paid for college and gotten no help from the father. I told her, “I could have gotten him to help with that if I had only known.” She said, “well, I didn’t know to ask you.” I decided no client of mine would ever have that happen again. I also decided that post divorce follow up was a good way of staying in contact with the large body of people who had already made the decision to hire me. Some examples of dates we calendar are:

Thirty day check–we call clients 30 days after their divorce to see how they are doing.
Yearly anniversary check--The anniversary check is designed to keep the client aware of their rights and to ensure that problems can be fixed or contempts filed or modifications obtained where necessary.
Lump sum alimony payments
Termination of rehabilitative alimony
College approaching
Birthdays of client and children (we send cards)
Child reaching age of majority (21 in some states, 18 or 19 in others)
Deadlines for sale of property
6-month fraud deadline to challenge the final order--an order cannot generally be challenged after six months have passed. For example, suppose a client learns a couple of months after the entry of the final order, that their former spouse had won the lottery and concealed that from them. If this is to be brought before the court, it generally must be raised within 6 months. So, we send a letter to each client five months after their divorce, warning them of this deadline.

Our “post divorce follow up” is performed at no additional charge to the value priced fixed fee we charged for the initial work.

IF YOU CAN'T CO-PARENT AFTER DIVORCE, TRY "PARALLEL PARENTING."

2010-03-23T16:57:00.000-05:00

The biggest factor in the health of children in the post-divorce period appears to be a reduction in conflict. Listed below are some tips for reducing conflict. Children are clearly best off when their parents parent cooperatively, making decisions together, attending school events together, remaining flexible on visitation issues, and disciplining together.

Cooperative parenting may not be possible at times in the post-divorce period. If so, “parallel parenting” should be tried. Parallel Parenting is a process of parenting next to one another because parents are unable to parent together or co-parent.

Here are some techniques for parallel parenting:

Disengagement: Avoid situations or communications which might create conflict.

Don’t communicate unless you have to. Avoid communication about minor things.
Don’t tell the former spouse how to parent.
Avoid criticisms of the other parent’s parenting.
Avoid conflict in all communications. When your former spouse makes an accusation, don’t “set the record straight.” You will never change their mind. You will only escalate the conflict by replying with your view point.
Provide basic information only.

Communicate by email or letter. When writing to your former spouse:

Be factual and concise.
Be business-like.
Avoid sarcasm.
Don’t share your communications with the children.
Don’t ask the children to ask your former spouse something or give your former spouse a request for something. E.g. Ask your father if he wants to see you on this Sunday, or, Ask your father how you are going to be able to participate in the school play if I don’t get your child support.
Limit non-emergency information to twice per month (more if child is under age 5).

Things to Promote:

Ignore (rather than arguing back) when the other parent tries to tell you how to parent.
Support different styles of parenting in order to avoid conflict. Even in happy marriages, people differ on parenting. Pick battles very carefully. Most parenting differences are not worth fighting over. E.g., bed times or cleanliness of a room or house.
Accept that there is more than one “right way” to parent.
Learn to be less rigid and more accepting of the child’s other parent.
Don’t try to change how other parent does parenting job.
Do best job of parenting during the time child is with you, without criticizing other parent. Children usually resent a parent who criticizes the other parent.
Children are capable of being parented in two different styles.
Many children of divorce adjust quite well to two very different homes. Some may, in fact, enjoy it, if the parents reduce conflict.

Credit: “Children’s Adjustment Following Divorce: Risk and Resilience Perspectives” by Joan B. Kelly and Robert E. Emery.

MYSPACE POSTINGS CAUSE YOUNG MOM TO LOSE CUSTODY OF YOUNG SON AND DAUGHTER

2010-03-15T19:06:00.000-05:00

I think I have seen it written that Internet social networking is a factor in a third of divorces. As a practitioner, I am constantly amazed at the evidence that emerges in family law cases from social networking. I have seen married couples join dating web sites and publish that they are single. I have seen texting of suggestive and nude photographs, and I have seen the posting of photos on networking sites that are totally incriminating.

A good example of the dangers of being indiscrete on the Internet is found in the recent decision of Brown v. Christopher, No. 2009–CA–00310–COA (Decided March 9, 2010). Caelan, five years old, and Brendon, four, were born out of wedlock to Lori and Christopher. Christopher admitted paternity and paid support. The parties agreed upon visitation. Five years after the birth of her daughter, Lori filed an action to declare her custody and grant her support. Christopher counterclaimed. At trial, Lori lost custody to Christopher. Perhaps the major factor in the decision was Lori’s “bad judgment” in “posting photographs on her MySpace page of herself with different men, of herself at different events where she was surrounded by individuals who were intoxicated....”

I had a boss once that told me, “Never write anything anywhere that you are not comfortable having published on the front page of the newspaper.” Well, the “newspaper” is now the Internet and it doesn’t just reach subscribers; it reaches the world.

ASSISTED REPRODUCTIVE TECHNOLOGY IS OPENING MANY OPPORTUNITIES FOR PEOPLE AND CREATING A WHOLE RANGE OF LEGAL ISSUES

2010-03-08T09:25:00.000-06:00

Two basic technologies, “intrauterine insemination,” and “cyropreserved embryos” are leading to potentially massive impact on peoples’ lives and the legal community. “Intrauterine insemination” is what many people have always referred to as “artificial insemination.” Although the technique has been around for centuries in animal husbandry, it has also been in use with humans since the late 18th Century. In this method, sperm is “artificially” placed in the female for fertilization. In “cyropreserved embryos,” eggs are removed from the female and fertilized outside of the uterus. The combinations of uses of these procedures and the people these procedures can help are many. The legal implications are also complicated and relatively unchartered at this time.

Interesting opportunities and legal scenarios come from the taking of many eggs from a woman. Couples who go through in vitro fertilization often remove many eggs from the woman and use the embryos to create pregnancy and then “freeze” or “cyropreserve” the rest for future use. Several options present themselves for unused embryos, such as storing them, donating them for research or thawing them and discarding them. If a couple has stored embryos and then divorce, issues have arisen as to what should happen to the embryos that have been stored. It is thought that there are literally hundreds of thousands of stored embryos.

There is some case law out there regarding these issues but there appears to be little uniformity. Three states have passed laws touching on some of these issues. The National Conference of Commissioners on Uniform Laws proposes a model act called, “ART,” for “assisted reproductive technology.” Lawyers should educate themselves on these matters in order to assist people and open up these magnificent technologies for more use.

(All material taken from the seminal publication on this topic authored by my friend Professor Charles Kindregan, Jr., and Maureen McBrien, Assisted Reproductive Technology, (ABA, 2206) which may be obtained at ababooks.org.)

NON-CUSTODIAL PARENTS HAVE STATUTORILY GUARANTEED RIGHTS OF ACCESS TO SCHOOL AND MEDICAL INFORMATION OF THEIR CHILDREN

2010-03-01T14:04:00.000-06:00

In my practice I see countless situations where schools and medical professionals accept instructions from primary custodial parents to deny the non-custodial parent access to their child. I have even seen where parents instruct schools to deny the non-ustodial parent the right to visit their child at school for lunch or other events or to pick the child up. I believe such conduct is contrary to the spirit, if not the letter, of the law, and is detrimental to the proper parenting of children.

In 1989, the Mississippi Legislature passed a law expressly providing that “access to records and information pertaining to a minor child, including, but not limited to medical, dental and school records, shall not be denied to a parent because the parent is not the child’s custodial parent....”

In addition, it is important to note that the Mississippi Statute (93-5-24) setting forth custody does not use the term “visitation” but defines custody as “where the child is.” This means that the Mississippi Legislature has also attempted to create custody situations which do not elevate one parent over the other or denominate one parent as “the visitation parent.”

Custody, in most situations, should be thought of as a “parenting plan” as opposed to one parent getting custody over the other. Of course where abuse or neglect is involved as well as many other possible situations, it may be appropriate to view the matter differently.

Should I leave the house? What is desertion?

2010-02-22T10:17:00.000-06:00

One of the first things I always hear from clients is they had been told by "everyone" that the number one rule is not to leave the home. In many cases that is true, but it is not as iron clad as many people think. People also think leaving the home constitutes “desertion” as a ground for divorce and this is simply not true in most cases.

If you are in a divorce situation, you should not leave the home if you want to have it. If you want to keep something, you are better off asking the Judge to let you keep it than you are asking him to give it back. From another standpoint, if you leave the home and you later appear in court at a temporary hearing asking the judge to let you have use and occupancy of the home, the Judge may conclude that since you had already left, you had “voted with your feet,” and on a temporary basis he is not going to change that. On the other hand, if you had good reason to leave and you are granted custody of the child or children, there is a strong body of law that the custodial parent should be granted use of the home, even though they may have left it for a while.

If you have no children, or, if you have children and the means to support yourself and no desire to remain in the home, that is a circumstance where leaving the home may be a good idea.

Many people believe that they should not leave the home simply because that will be considered “desertion.” At some point, it could be, but the ground for divorce of desertion requires that a court find that you had left the marital home continuously for one year--without just cause--and refused to return, despite being asked. So, the ground of divorce of desertion takes quite of bit of time and facts to develop. It is, indeed, an extremely rare ground for divorce, given all that can happen in a year.

Whether or not to leave the home is a very complicated issue, and if the issue ever presents itself, you should immediately seek legal counsel.

YOU MUST DO EQUITY TO RECEIVE EQUITY.

2010-02-16T11:22:00.000-06:00

Family law matters are handled in the Chancery Court system in Mississippi. Mississippi is one of the few states with a dual justice system where the court systems are divided in two: The Circuit Courts, which handle law related matters such as contracts, criminal, and tort cases; and the Chancellor system, which handles land matters, estates and family matters. The Circuit Courts are called upon to follow laws and written contracts and to apply them objectively. The Chancery Courts are deemed courts of “equity” and they are called upon to look at each case individually and do what is fair and just for all parties.

Since family matters are handled in these “courts of equity,” divorcing or divorced people have a special burden to act with fairness and decency toward their opposing spouse or ex spouse. This is often hard for people because family situations such as divorce are often accompanied by betrayal, cruelty, adultery, and anger. The desire to “strike back” or make things difficult for the other party is often very strong. Attorneys often walk the tight rope of advocating for and being sympathetic for their clients position while at the same time encouraging them not to take action which might later be deemed by a court to have been unfair.

The recent case of Day v. Day 2009-CA-01296-COA (Decided February 9, 2010) demonstrates this point. In that Case, the parties’ divorce agreement called for the marital home to be sold within 24 months. If it were not sold, the agreement called for Mr. Day to purchase the home from the former Mrs. Day for the amount of equity determined from an appraisal. But the former Mrs. Day had so much anger for Mr. Day that she refused to cooperate in obtaining an appraisal. She knew Mr. Day was far away in Ohio and would have to go to great expense to hire an attorney to make her comply with the order, so she stalled and refused to cooperate. Then she made the mistake of suing Mr. Day for contempt on some relatively minor issues. This caused Mr. Day to have to hire an attorney and he responded with a counterclaim for contempt against Mrs. Day. As a result, an appraisal was ordered. The appraisal showed substantial appreciation in the home since the end of the 24 month period. The former Mrs. Day wanted her half of that appreciation, but the Chancellor refused. He found that she should not profit from her failure to adhere to the agreement in a timely fashion. He awarded her a mere $6,000. The Court of Appeals affirmed, citing the former Mrs. Day’s unjustified interference with the sale in a timely fashion.

Both clients and attorneys must always be reminded that in Chancery Court, “you have to do right to get rights.” You must “come into court with clean hands” in order to get help from the Chancery Courts.

You can never be too careful...

2010-02-08T09:07:00.000-06:00

Attorneys should use checklists to make sure everything is done and clients should be careful to make sure the business is taken care of.

Our firm utilizes checklists for just about every action we take. We utilize the check lists even when they pertain to matters that we have well in hand. I learned about the importance of checklists during my pilot training. I was surprised to see that my highly trained instructor, who had served over 20 years in the air force as a rescue pilot, still utilized checklists for procedures he had done a thousand times. When you board a plane, peek through the pilot’s door, and notice how these men and women, who fly every day for a living, are going over their checklists.

The recent case of Henderson v. Henderson, No. 2008-CA-02107-COA (Decided January 19, 2010), is illustrative on the point. In that case, the parties reached agreement on a divorce on irreconcilable differences. They signed the Agreement and the Judge signed the Decree of Divorce. However, for some reason, the signed order was never filed in the Chancery Clerk’s office. Then, two years later, the whole divorce was dismissed under court rules calling for cases to be dismissed for lack of activity. The husband decided to try and take advantage of this and stopped paying alimony and filed for divorce on grounds of desertion. Fortunately for the Wife, the Judge would have nothing of this and signed a new Decree dating back to the time of the original agreement. The Court of Appeals affirmed.

Our firm has a “File Closing Checklist.” One of the items on this checklist is a check to make sure we have a “stamped filed” copy of any final order. Utilization of such a check list ensures that bizarre or unfair results don’t take place because of clerical errors.

SIGNS OF DOMESTIC VIOLENCE

2010-02-01T10:10:00.000-06:00

I recently had the opportunity to meet with representatives of The Center for Violence Prevention located in the Jackson, MS area. This Center is a non profit organization dedicated to assisting victims of domestic abuse. They also offer counseling to perpetrators of abuse. Part of our discussion dealt with why victims of abuse simply don’t leave. This is a complicated issue. One reasonable explanation of course is that the perpetrator makes the victim fear that leaving is more dangerous than staying. The counselors informed me that the average victim attempts to leave seven times before finally completing the act of separation. This means victims are often caught in this cycle for very long periods of time. Listed below are some characteristics of abusers:

Extreme Jealousy
Controlling behavior
Unpredictable behavior
Unrealistic Expectations
Isolates the victim
Blames others
Minimizes or denies abuse
Cruelty to children or animals
Uses force during sex
Verbally Abusive
Sudden mood swings
Past history of battering
Threats of violence
Breaks or strikes objects

My professional experience is that the abusive personality is often concealed from outsiders by a charismatic personality. Abusers are manipulators and they can change their personality at will.

The Center may be contacted at 601-665-2950.