Mississippi Family Law Blog

Social Security and Divorce--who gets the benefits?

The Wall-Street Journal recently posted an article discussing social security and divorce. The questions included:

How long do you have to be married for a person to collect social security benefits? At least 10 years, you can't be remarried, you have to be at least 62, and your ex-spouse must be eligible for social security benefits.

Does my ex-spouse getting social security benefits reduce my benefits? No.

Can I re-marry and still get my ex-spouse's social security benefits? No.

The Kisselburgh Law Firm represents individuals in Mississippi going through a divorce. If you are contemplating a divorce, contact us at 601-936-4040 or online to discuss your legal rights.

New York Times advice on divorce

In a recent series, the New York Times ran some articles offering financial and practical advice for those going through or contemplating a divorce. Here are the articles:

Financial Decisions to Make as You Divorce
Experienced in Love and Money.

Marriages in Texas since 2005 may not be legal

Texas may have itself a big problem. In 2005, it approved a constitutional amendment banning gay marriages. Under the amendment, it states in the first part:

Marriage in this state shall consist only of the union of one man and one woman.

That portion is not the problem. The problem is the second part of the amendment which says:

This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

That's a big problem. If the state does not recognize any "legal status identical or similar to marriage", then how can it recognize a marriage? The Democratic candidate for Attorney General in Texas, Barbara Radnofsky, says the amendment endangers the legal status of all marriage as it "eliminates marriage in Texas" including common-law marriages.

You can be assured this issue will be raised in a divorce proceeding for a couple married in Texas after the amendment went into effect. If the parties were not legally married, due to the constitutional amendment, then no divorce is needed. However, a major problem arises given Texas is a community property state. In Texas, all property acquired during the marriage is presumed to be community unless otherwise proven. So, a couple married after 2005 in Texas and seeking a divorce could argue that there is no community property. No marriage equals no community property. So, the spouses only have separate property and one spouse loses out to the wealthier spouse. Then there is the issue of alimony.

It should be interesting to see how this issue is resolved, but the folks who drafted this constitutional amendment really should have seen this argument arising and done a better job of drafting the amendment.

Source: Fort Worth Star Telegram

Reported by: Robert Kisselburgh, Mississippi Divorce Lawyer

More Fathers get custody of children in divorces

In Mississippi, as well as other states, more women are working and becoming the primary breadwinner in the family. One downside some women are finding in working so hard is that their husbands are getting primary custody of the children in a divorce. In a recent New York Times article, it was stated:

There are now 2.2 million divorced women in the United States who do not have primary physical custody of their children, and an estimated 50 percent of fathers who seek such custody in a disputed divorce are granted it.

With more women in the workforce and some fathers opting to stay at home to care for children, this trend will continue.

Reported by: Robert Kisselburgh, Mississippi Divorce Lawyer

Dividing personal property in a divorce

A fellow divorce attorney from South Carolina, Ben Stevens, wrote a nice post about dividing personal property in a divorce. Check it out here.

Lamar County divorce case partially remanded back to Chancellor for third look

Sometimes a case just never ends. That has to be the feeling for a divorce case out of Lamar County, Mississippi. Last week, the Mississippi Supreme Court sent the case back to the Chancellor for a third trial. In Lowrey v. Lowrey, the original final judgment of divorce was signed in September 2002. The wife appealed that initial decision. In 2005, the Mississippi Court of Appeals affirmed the divorce, but reversed and remanded the case for the Chancellor to decide "unresolved matters of child custody, child support, property division and alimony." A second trial was held by a different Chancellor from the first case. And to add to the problem, the case was heard on different dates (2006 and 2007), a common occurrence in Chancery courts in Mississippi. Both parties appealed the final decision by the Chancellor.

The Mississippi Supreme Court recognized this "piecemeal" litigation, where the Chancellor will hold multiple hearings to decide the issues, is a problem with our Chancery Courts.

Hearings can be, and often are, separated by weeks or even months, as occurred in this proceeding. Chancellors are required to follow the testimony of witnesses, review documents offered as exhibits, and attempt to make contemporaneous notes. Trial judges are not afforded the advantage of appellate courts to review the full record of a case without interruption.

Continue reading "Mississippi Supreme Court sends case back to Chancellor for a third trial" »

Mississippi Court reverses Chancellor for not making deductions before calculating child support

The Mississippi Court of Appeals reversed a Jones County Chancellor for failing to make the statutory deductions from the non-custodial parent's gross income before calculating the child support owed. In Holloway v. Holloway, the Chancellor failed to make any deductions from the husband's gross income before making a determination of what he owed in monthly child support. Mississippi Code Section 43-19-101(3)(b) is explicit that certain mandatory deductions are subtracted from a non-custodial parent's gross income before calculating child support owed. In this case, the Chancellor failed to make any deductions for taxes paid, so the amount of child support awarded was based on his gross income, not his adjusted gross income.

It is difficult to understand what the Chancellor was thinking in this case as making the mandatory deductions from the gross income before calculating the child support owed is a rather elementary situation.

Reported by: Robert M. Kisselburgh, Mississippi Divorce Attorney

New law authorizes casinos to collect child support from winners

Colorado enacted a new law that requires casinos to do a computer check of any person winning more than $1,200. If they are delinquent, the money goes to the state as opposed to the unhappy gambler. It is about time! Colorado, according to the article, collected over $320 million last year in back child support through this new law. Hopefully, Mississippi will enact a similar law.

Information provided by: Robert Kisselburgh, Mississippi Divorce Attorney

Tennessee woman faces contempt for Facebook "poke"

A 36-year-old Tennessee woman was arrested and charged with violating a protective order that prohibited her from "telephoning, contacting or otherwise communicating with the petitioner." How did she violate the order? It seems she "poked" the other petitioner on Facebook. According to Facebook, if you "poke" someone, they will receive a poke alert on their home page. According to the article, her attorney says she was surprised that a "poke" violated the order. I guess she has a hard time understanding what "contacting" means. It is rather apparent if you "poke" someone on Facebook, you are contacting them. Good luck at her contempt hearing.

Information provided by: Robert Kisselburgh, Mississippi Divorce Attorney

Texas judge declares same-sex marriage ban violates equal protection clause

Texas, just as Mississippi, has a ban on gay marriage. In Texas, voters approved a constitutional amendment banning same-sex marriage and the Texas Family Code also prohibits such unions. However, a Dallas, Texas district court judge found the prohibition violates the equal protection clause to the Constitution and paved the way for two gay men to divorce. The judge held the court "has jurisdiction to hear a suit for divorce filed by person legally married in another jurisdiction." The attorney general said he would appeal the decision. The Texas Supreme Court will most likely reverse this ruling, but you can expect the case to be appealed to the U.S. Supreme Court based on a violation of the 14th Amendment to the U.S. Constitution.

Source: Dallas Morning News

Reported by Robert Kisselburgh, Mississippi Divorce Lawyer

Multimillion dollar lawsuit against divorce attorneys

Susan Stanford, wife of jailed Houston, Texas financier R. Allen Stanford, filed a malpractice lawsuit against her previous divorce attorneys alleging they failed to inform her of a $200 million dollar divorce settlement offer allegedly made in January, 2008. According to the lawsuit filed in Harris County, Texas, Susan filed for divorce from Stanford in 2007 and Allen Stanford's attorney made a verbal settlement offer of $200 million to settle the case. The offer was later withdrawn in February, 2009, at about the same time all the assets of Stanford Financial Group and R. Allen Stanford were frozen by U.S. District Judge David Godbey. Mrs. Stanford alleges that if she became aware of the offer, she would have accepted it. The interesting question is whether Ms. Stanford would have been able to keep any of those assets if she did settle the case given the current SEC action and its attempt to "claw back" the assets associated with Stanford Financial Group.

Stanford Financial Group has a Mississippi connection. Laura Pendergest-Holt, Stanford Financial Group's Chief Investment Officer, and James Davis, CFO of Stanford Financial Group, were both from Baldwyn, Mississippi. In August, James Davis plead guilty to fraud and obstruction of justice charges related to a $7 billion dollar scheme to defraud investors. Pendergest-Holt has pled not guilty to 21 felony counts of fraud, conspiracy and obstruction of justice.

Dog shares time with split owners

Here is another story of an expensive custody battle except in this case it was over a dog. A New Jersey couple spent the last three years battling over who gets the dog. $40,000 later, the judge ruled that the couple must share custody. The six-year-old pug, Dexter, will spend alternating five week periods with each party.

The amazing part of the story is that the husband is considering appealing the decision. I guess they have a lot of extra income they don't mind spending on attorney fees. According to the article, the wife, who frequently dresses Dexter in costumes and lavishes him with gifts, was pleased with the decision.