Mississippi Family Law Blog

Step 2: Get a Safe Deposit Box to store important information

If you follow the coming steps, you will have a lot of important documents and photographs that need safekeeping. The best advice is to get a safe deposit box unless you have some other place outside your home to store your documents.

Check with your bank and see if you can rent a safe deposit box. Or you may be able to keep your documents at work. The important part is to safeguard the documents you have and the ones you obtain. You want to keep them in a place where your spouse cannot tamper with them.

You may also want to get a post office box. This is important if you are close to hiring an attorney and have not told your spouse. This ensures communications with your attorney are kept private if you are still living with your spouse.

Step 1 - Hire a Wise Advisor

We live in a DIY (Do It Yourself) society. Many believe they can get divorced on their own. You can probably find some forms on the Internet that will allow you to file your own divorce. In fact, if you have no children, have been married for only a few years, have little or no debts, and you and your spouse agree to the divorce and property settlement, you could probably file the divorce without hiring an attorney. But this does not describe the majority of people contemplating a divorce. For most, you need a wise, experienced lawyer to lead you through the process and protect you from the consequences of divorce. Divorce involves many pitfalls and you will not be able to weather the storm alone.

Look for a lawyer who has experience in family law and courtroom experience. Know your lawyer’s philosophy regarding settling versus litigating cases. You don’t need a lawyer whose attitude is fight at all costs. This type of lawyer costs you hard earned dollars in attorney fees and creates conflict rather than seeks resolution. You also don’t want a lawyer who is unwilling to take your case to trial if needed. You need the lawyer who understands the difference between compromise and capitulation. You need a lawyer who seeks to resolve conflict, but if unable, is willing to take your case before a judge for resolution.

Steps to Prepare for Divorce in Mississippi

Several months ago, a fellow blogger (Michael Sherman, Alabama Family Law Blog) offered some sage advice for those preparing for divorce. I have taken his series, modified it for Mississippi, and added to it. Over the next few weeks, I will offer 12 steps to prepare for divorce in Mississippi.

Before we start, let me be clear. I am not advocating divorce for anyone. In fact, if you are unsure, get help from a professional counselor. It could save your marriage. However, if you have decided to proceed forward with a divorce, you need to be prepared. Read these posts over the coming month and you might find some useful tips to assist you in the process. Let’s get started.

Mississippi Court refuses to return property hidden for purposes of fraud

This week the Mississippi Court of Appeals upheld the decision of a Jones County Chancellor who refused to transfer property back to the original owner given the man transferred the property to his live-in friend for the purposes of defrauding Medicaid.

Rickey Ellzey and Sherry James started living together in Jones County, Mississippi in 1979. Later, Ellzey inherited some land in Jones County after his father died. In 1994, Ellzey had a heart transplant. He qualified for Medicaid assistance from the State of Mississippi which helped pay his medical bills. However, he learned an oil well on his inherited property would soon produce royalty checks. Fearing this newfound wealth would terminate his Medicaid benefits, he deeded the property to Jones with the intent to get the property back once his medical bills decreased.

Continue reading "Mississippi man admits fraud, but wants property back" »

Couple Divorces 4 days After Wedding

There is a new show on ABC called Dirty Sexy Money. I happened to watch a bit of it last week as it follows Private Practice, the Grey's Anatomy spin-off (my favorite show). During the show, the rich spoiled daughter got married. Just after the wedding, the new bride walked over to her attorney and asked for a divorce. I sat there thinking this is crazy. Nothing like this happens in real life. Well, I'm wrong.

A couple in Israel are seeking a divorce just 4 days after their wedding. The reason for the divorce, according to the article, is the husband says his new wife refuses to live with his parents and the wife claims the husband promised to rent an apartment so they could live on their own. It also appears that the wife was unhappy with the "cheap" wedding gifts the husband's family gave them. The divorce was granted.

Here is a case where some premarital counseling may have helped or at least opened the eyes of this couple to the realities of marriage and the necessity for communication and compromise.

Two Army colonels face criminal charges over DNA scam

When I served in the military, random drug testing was standard and steps were taken to ensure that someone did not pose as another in an attempt to beat a drug test. But here is a new one. An U.S. Army colonel is accused of posing as his friend to give a DNA sample in a child support dispute.

According to reports, a Virginia woman sued Colonel Carlson for child support and a paternity test was ordered. Instead of Carlson showing up for the test, his friend Colonel Adkins showed up posing as Carlson in hopes of defeating paternity. Now both face criminal charges in addition to the end of their military careers if found guilty.

If the allegations are true, one has to wonder what these two, supposedly intelligent, individuals were thinking. If you are the father of a child, you have a legal obligation, not to mention a moral one, to support your child. Remember, child support is for the child, not the parent. So no matter what your feelings are towards the child's mother, the support is for the child.

NOTE: I had a reader send me an e-mail saying my comments only pointed out the child support obligations of fathers, not mothers. Although the story was about a father allegedly attempting to shirk his responsibilities, it should be reiterated that child support is the responsibility of both parents.

Michael Jordan agrees to $168 million payout

According to recent news reports, Michael Jordan has agreed to pay his wife $168 million in a divorce settlement. The financial settlement would break the previous record for celebrity divorces.

Some couples should not be married

In an opinion this week out of the Mississippi Court of Appeals, Justice Irving wrote a separate opinion calling on the Mississippi Legislature to reform Mississippi's divorce laws to allow an irreconcilable differences divorce even when one spouse does not want the divorce.

The case centered around a Monroe County couple who dated for twenty years before marrying. The honeymoon was short-lived as they started to fight constantly following the first year of marriage. The husband filed for divorce based on cruel and inhuman treatment while the wife denied the grounds for divorce and sought spousal maintenance. At trial, the chancellor denied the divorce and ordered the husband to pay spousal maintenance.

Continue reading "Justice calls on Mississippi Legislature to reform divorce laws" »

Man unlikely to get father of the year

A Michigan father (using that term loosely) failed in his attempt to get out of paying child support given he did not want the child. He argued that his girlfriend said she was infertile and was also taking birth control as extra protection. After the relationship soured, she informed him she was pregnant. He argued that the mother had the right to chose an abortion (in his words, a choice to disclaim parenthood), so he should have the equal right to disclaim parenthood by not paying child support.

The 6th Circuit Court of Appeals didn't buy his argument and agreed with the lower court which dismissed his claim as meritless. Essentially, Michigan's paternity laws, similar to other states, are gender neutral, placing the obligation of support on both parents. Given it is a gender neutral law, it does not violate the Equal Protection Clause.

For a copy of the decision, click here.

Child support—some avoiding jail, while others get out to work off non-payment

More news today about different states cracking down on parents who fail to pay their child support. In Pittsburgh, a five-day amnesty program expired on Friday allowing parents who had warrants for their arrest for non-payment of child support to come forward, pay the support, and avoid jail time. During the five-day program, over $118,000 in child support was collected according to the article in the Pittsburgh Post-Gazette.

While amnesty was offered in Pennsylvania, Georgia officials were starting a work-release program for those parents jailed for non-payment of child support, according to a recent article out of Savannah.

The non-payment of child support is a difficult situation to generalize. There are many stories of people who do not pay up until such time as they are facing time behind bars while there are others who do not have the means, or limited means, to pay the support orders in place. There are no easy answers, but at least some states are attempting to find workable solutions to the problem.

Property bought during a separation—who owns it?

As a Mississippi divorce attorney, I get a fair amount of questions concerning property ownership. An example is this one. If my husband and I separate and file for divorce, does my husband have a legal right to any property I buy after we separate but before the divorce is finalized?

Normally, all assets acquired during the marriage are presumed to be marital property. Given there is no such thing as a legal separation in Mississippi, any property acquired from the date of marriage until the date of divorce is presumed to be martial property. There is one exception. In Godwin v. Godwin, the Mississippi Supreme Court held that:

Continue reading "In a Mississippi, who owns property acquired during the pendency of the divorce?" »

In Mississippi, court can't require child support past 21st birthday.

In a case last week out of Jackson County, the Mississippi Court of Appeals reaffirmed the rule that a parent can not be obligated to pay for a child’s expenses past the age of 21. Daniels v. Bains was a paternity action and child support case. After DNA testing proved Daniels as the father, the court ordered Daniels to pay child support. Part of the support order required Daniels to pay for his daughter’s college expenses. Specifically, he was required to pay all of his daughter’s undergraduate college expenses and one-half of the expenses for graduate school, conditioned on his daughter’s grades.

On appeal, Daniels argued the order required him to pay for expenses after his daughter turned 21, the age of emancipation in Mississippi. The Mississippi Court of Appeals agreed and reversed the part of the order requiring him to pay beyond his daughter’s 21st birthday. As the court reiterated, Mississippi Code Sec. 93-11-65(8) states in part, “the duty of support of a child terminates upon the emancipation of the child.” Emancipation occurs at the latest when the child turns 21 years old. For more discussion on this issue, see my previous post.

In Mississippi, unlike a majority of states, a child is emancipated at the latest when they turn 21 years old. Once emancipated, a court cannot obligate the parent to pay child support, whether it is basic living expenses or expenses related to college.

Unforeseen and unanticipated increased expenses could justify modifying periodic alimony payments in Mississippi

Continuing on with my discussion about modification of periodic alimony, a change in health condition and increased medical costs of the recipient spouse due to a kidney transplant justified an increase in alimony payments. In Makamson v. Makamson, the Mississippi Court of Appeals approved a chancellor’s decision to increase the alimony payments 12 years after the divorce due to the medical costs associated with a kidney transplant of the recipient spouse. The costs associated with her transplant were not something anticipated at the time of the divorce although she was diagnosed with the kidney problem 5 years before the divorce. As the court noted, the test for modification is a substantial change in circumstances which:

“must have been some change which resulted from ‘after-arising circumstances of the parties not reasonably anticipated at the time of the agreement’ and furthermore the change must ‘be one that could not have been anticipated by the parties at the time of the original decree.”

Continue reading "Do increased costs following a divorce justify modifying alimony payments in Mississippi?" »