Mississippi Family Law Blog

Social Security and Divorce

2009-06-03T16:36:24Z

Can I collect Social Security benefits using my ex-spouse's employment history?

Typical scenario: Husband and wife have been married for twenty years and they get divorced. For the majority of their married life, husband was the bread winner in the family while the wife was a stay-at-home mom. Following the divorce, the wife goes back to work but never makes what her husband. When it comes to retirement, the question is whether the wife can collect social security benefits using her employment record or can she seek social security benefits using her ex-husband's employment record.

In an article today on ABC news, the author said the general rule is:

In addition to the required 10 years of marriage, there are four key qualifications to collect divorced spouse benefits:
The person seeking to collect must not have remarried.

This person must be 62 or older.

The benefit this person would collect based on his or her own earnings record must be smaller than what they would collect on their former spouse's earnings history.

And the ex-spouse must be entitled to Social Security retirement or disability benefits on their own.

Another rule is that if you remarry, you generally cannot collect your ex-spouse's benefits unless the current marriage ends in death, divorce, or an annulment. The Social Security Administration also has some good information on their website.

If you or a loved one are contemplating divorce, you should speak with an experienced attorney. At the Kisselburgh Law Firm, we are experienced in representing clients going through a divorce. Call us at 601-936-4040 or contact us online to set up a consultation.

Dividing debts in a Mississippi divorce--who is liable?

2009-04-19T12:34:25Z

Liability for marital debts when you divorce in Mississippi

In a recent Los Angeles Times article, the author gave some good tips to couples dividing debts during a divorce. The overriding concern and point that should be reiterated is that just because you and your spouse agree that one of you will be responsible for a debt, it does not change the relationship with your creditor. Here is an example.

A Madison County, Mississippi couple are divorcing and have joint credit cards with American Express and Visa. The husband agrees to take on the American Express payments while the wife agrees to pay the Visa bill. After the divorce, things don't go well for the husband and he defaults on his payments to American Express. American Express goes after the wife for payment. She says how can that be? Well, if she was a joint account holder on the card at the time the debt was accumulated, then she is jointly liable for those debts. She probably has an agreement from her husband to indemnify her (standard in a divorce), but that indemnification agreement means nothing to the creditor. American Express must be paid and the wife will be jointly responsible. While she can then go after the husband for the money, if he does not have it, the indemnification agreement does not do her much good.

Lessons learned?

1. When divorcing, you need to ensure that you are aware of all debt accumulated during your marriage.

2. If you have joint credit cards, cancel the joint cards.

3. If there are balances on those cards, make sure one spouse opens up an account to transfer the balance to so it is no longer a joint debt or pays off the debt.

4. As for other jointly-held debt, such as mortgages and automobiles, you need to refinance the debt if possible. Those lenders will enforce their original agreement where both of you agreed to pay the debt even if your divorce decree says one spouse is responsible for payment.

I spoke about this issue before in a previous post. If you find yourself contemplating a divorce, call the Kisselburgh Law Firm at 601-936-4040 or contact us online to set up a consultation to discuss your rights.

Husband says ex-wife owes mortgage balloon payment; Court rules otherwise

2009-04-10T16:51:16Z

Understand a divorce property settlement agreement before you sign it

This week the Mississippi Court of Appeals sided with a Madison County Chancellor who ruled a husband was responsible for paying a balloon payment on the divorced couple's mortgage. The case highlights the importance of being represented by an attorney when divorcing and also making sure you understand the documents you sign.

When the couple divorced, the husband agreed to pay alimony in the amount of the monthly mortgage payments "until such time as the mortgage on the property ... is fully satisfied." To ensure payments, he also agreed to provide a life insurance policy in the amount of $150,000. The tricky part was the mortgage contained a balloon clause. At the end of the mortgage term, a final payment of $142,268.41 payment was due. When it came due, the husband claimed he did not owe it.

A hearing was held and the Chancellor ruled in favor of the wife. The husband appealed. The Mississippi Court of Appeals sided with the chancellor. The question came down to whether the dissolution agreement was ambiguous or not. In Mississippi, as in many other states, a divorce property settlement agreement is a contract between the parties. The Court will look to the document for its intent unless the contract is ambiguous. In this case, the Court found that although one provision was ambiguous, the agreement provided the husband would pay the mortgage until it was "fully satisfied." The mortgage could not be "fully satisfied" unless the final balloon payment was made. Further, by the husband agreeing to provide a life insurance policy for the value of the house, it showed his intent to be obligated for the full amount of the mortgage. As the Court of Appeals stated, "it would be nonsensical for [the husband] to voluntarily obligate himself to obtain life insurance for the full amount due under the mortgage if he were not intending to obligate himself for this amount."

Let me repeat an important lesson. The wife was represented by an attorney who drafted the dissolution agreement, but the husband represented himself in the divorce. Too many times I receive calls from folks who did not have representation at the time of their divorce and are now calling to say there did not realize they were obligated to do certain things. At the Kisselburgh Law Firm, we represent those going through divorces. If you are contemplating a divorce, call us at 601-936-4040 or contact us online to set up a consultation to discuss your rights.

Mississippi couple's divorce set aside--back to square one

2009-03-15T18:08:25Z

Mississippi divorce set aside for couple representing themselves

A Hinds County, Mississippi couple, each representing themselves, had their divorce set aside by the Mississippi Court of Appeals last week. When the wife originally filed for divorce, she sought a fault-based divorce on grounds of adultery and habitual cruel and inhuman treatment. At trial, the Court denied the wife's fault-based grounds, but gave the parties an opportunity to agree to the divorce. The parties agreed to an irreconcilable divorce by filing a consent for divorce. The Chancellor then divided the marital property. The husband, upset with the division of property, appealed the case.

On appeal, the Mississippi Court of Appeals said the Chancellor erred when she granted the divorce based on irreconcilable differences. The reason was the parties failed to seek to properly withdraw the fault-based grounds for divorce. Under Mississippi law, if the divorce is originally filed as a contested divorce, the parties are required to seek leave of court, and the court must approve, the withdraw of their contest or denial of the fault-based grounds before a divorce can be granted on irreconcilable differences. The parties failed to do so. So the case was reversed and the parties have to start all over.

This case highlights the problem of representing yourself in divorce proceedings. While the parties thought they could probably "save some money" by representing themselves, they are now back to square one AND still married.

If you or a loved one is contemplating a divorce, you need to consult an experienced Mississippi divorce attorney. Contact us online or call the Kisselburgh Law Firm at 601-936-4040 to set up a consultation.

Child Support Payment Modifications during tough economic times

2009-03-08T00:59:05Z

Don't let the child support payments get behind in Mississippi

Everyone understands these tough economic times. Layoffs are mounting along with unemployment benefit claims. If you are a victim of a layoff, then these times also bring the realization that the child support you are ordered to pay was based on your previous income and you may not be able to afford the payments. The important point is if you can no longer afford your child support payments due to a recent layoff, you need to act now by seeking a modification of the child support from the Court. If you delay, you might find yourself behind in payments and your ex-spouse bringing a contempt action. Further, in Mississippi, once the child support payment is due, it cannot be reduced. Let me give you an example:

Dan lives in Madison, Mississippi and was divorced in Hinds County, Mississippi three years ago. He has two children and is required to pay $600.00 a month in child support. When the child support order was entered, he was making $45,000.00 a year. However, six months ago, Dan was laid off from his job and he has yet to find a new job. His savings ran out three months ago and has not paid child support in three months. He is only living on unemployment benefits. His ex-wife has now filed a Motion for Contempt since Dan is no longer making child support payments. Dan answers the Contempt motion by filing a Motion for Modification.

Since Dan waited to seek a modification in the child support until he was past due, he still owes the three months in back child support. The Chancellor cannot reduce amounts once they become due. The solution to this problem was for Dan to seek a modification once his income was reduced dramatically. If he had, the Chancellor could have reduced his child support payments.

Lesson: Don't wait until the bills are mounting and take action before you get behind.

At the Kisselburgh Law Firm, we represent those who are seeking either to enforce a child support order or those who are seeking a modification. If you find yourself in either situation, contact us online or call us at 601-936-4040 to set up a consultation to discuss your case.

Divorces down with economy

2009-03-04T14:55:24Z

Economy drives down divorces as well as 401K

During these down economic times, people fear opening the mail to look at their 401K balances which are reaching new lows. But less people should fear finding divorce papers in the mail according to a recent article. It seems the economic downturn is also related to a downturn in divorces. And the cause is not more marital harmony, but less money--some people can't afford to get divorced.

When the two largest assets of a marriage, the home and the 401K, are down to new lows and many people are living in homes where they owe more than it is worth, how does an unhappy couple divide their assets. They don't. Rather, if they divide anything it will be debt. So some of these unhappy couples are deciding to live together as opposed to divorcing. Hopefully, we will not see an increase in domestic violence as unhappy couples live together.

If you find yourself in an unhappy relationship and are contemplating divorce, you need to get advice from an experienced divorce attorney. Call the Kisselburgh Law Firm at 601-936-4040 or contact us online to set up a consultation to discuss your case and the options you have or click here to get your free copy of the Mississippi Divorce Guide.

Kidnapped child found 6 years later in Texas

2009-02-28T15:12:45Z

Mother in custody after hiding daughter from father for 6 years

It is every divorced parents' nightmare. Your ex-spouse takes your child and does not come back. In 2001, Kostas Lazarides was awarded sole physical custody of his daughter in what was described as a bitter divorce. The two moved from Tennessee to Montana, but returned three years later for the summer. While in Tennessee, Kostas agreed Hope Lazarides, the mother, could keep their daughter during that summer until school started. That was the last time Kostas saw his daughter until he was reunited with her this week after 6 years of separation. The daughter was found in Dallas, Texas living with her mother. According to the article, Hope Lazarides is now facing charges of kidnapping and custodial interference in Tennessee.

When pre-martial property becomes marital property

2009-02-23T14:16:00Z

Home bought prior to marriage becomes marital property

The Mississippi Court of Appeals recently handed down a decision in a Copiah County, Mississippi divorce case. In this case, the husband lived in a home in the Hazlehurst, Mississippi area prior to marrying his wife. After they married, the couple lived in that house before selling it to buy a new home. They used the proceeds from the sale of the home to buy the new home. When the parties divorced, the husband argued the proceeds from the sale of the pre-marital home were not marital property as he owned it prior to marriage and it was purchased with pre-marital funds. The chancellor disagreed holding that the home was marital property given it was used by the family during his marriage. The Court of Appeals agreed.

The Court noted the well-settled rule that "non-marital assets may lose their characterization as such if the party commingles the asset with marital property or uses them for familial benefit." Even though the husband owned the first house prior to his marriage, "the property gained status as a marital assert upon its prolonged use as their family home." This concept is sometimes termed the "family use" doctrine.

The husband's second argument was that the wife did not contribute anything to the house given she stayed at home. Thus, she should not benefit from the increase in value of the home. Again, the Court disagreed. The wife stayed at home as a homemaker, raising the family, and going to school to further her education. All with the encouragement of her husband. As such, her role as homemaker and mother was sufficient to show a contribution to the equity of the home. "Any contributions or efforts by either party in the marriage, 'whether economic, domestic or otherwise, are of equal value."

This case provides a good analysis of the trying to divide property in a divorce, some of which was acquired prior to the parties' marriage. The Kisselburgh Law Firm represents individuals involved in divorces. If you are contemplating a divorce, contact us online or call us at 601-936-4040 to set up a consultation.

Alimony--Using Craigslist to get out of paying?

2009-02-19T13:51:20Z

Man offers to pay for someone to marry ex-wife

Imagine sitting at your computer and you are browsing the classified ads on Craiglist and suddenly you come across the following ad:

Nice well taken care of ex-wife. Mid 40's. Pretty and loyal. Never smoked and very little drinking. Will make someone a good companion (I know).... Will pay 10K to the man or woman who marries her in a way that stops me from having to pay her alimony.

There's the hitch. The man, trying to end his alimony payments to his ex-wife, is offering to pay a potential suitor to marry his ex-wife. Not being totally callous, the guy actually had some "terms and conditions" for this transaction.

1. This transaction offer only valid if she is not aware of it.

2. Must treat her good, no abuse tolerated by me.

3. This offer is null and void if it is determined to be illegal in any way -- I am not a lawyer.

4. The end result must be that I am no longer liable to her for alimony and you make best effort to be good to her.

5. This ad is not in any way intended to demean my ex-wife. She is a nice person and is a fine catch for anyone.

OOPS. I think the cat's out of the bag on condition #1. With news of the post hitting newspapers, she or some friends might find out. He might also have a problem with condition #3. At least he did not want to "demean" his ex-wife in any way--what a guy.

In Mississippi, if you are paying alimony to your ex, don't use this tactic to end the alimony. Not only will it fall flat in front of the judge, but you can be assured your ex will not find the humor in being marketed on Craigslist.

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Good Morning America looking for couples contemplating divorce

2009-02-17T16:28:57Z

Good Morning America wants couples who are contemplating divorce

If you and your spouse are contemplating divorce, but want try to save your marriage, then Good Morning America is looking for you to contact them. Couples chosen will undergo an intense counseling session to save their marriage.

As I have said before, our firm does not promote divorce and hope that all couples will attempt to go through counseling to save their marriage. If you are one of those couples, you can also check out the Mississippi Marriage Help website which provides a list of counselors who specialize in marriage counseling.

Mississippi Court of Appeals says no decrease in alimony for Meridian, Mississippi man

2009-02-13T14:13:38Z

Mississippi man seeks reduction in alimony, Court says no.

In a Lauderdale County, Mississippi case decided this week by the Mississippi Court of Appeals, the wife was originally awarded $3,250 a month in alimony. Seven years later the trial court reduced the alimony to $2,900 a month. Seven years later, the husband filed a complaint seeking to reduce or terminate the alimony. After a trial on the matter, the chancellor denied his request to modify the alimony. The husband appealed.

The issue on appeal was whether the parties' financial situations had changed such that a modification of the alimony was warranted. The Court first noted the general rule regarding modification of alimony.

"Alimony awards by the court or by an agreement incorporated into the decree of the court, if not lump sum, have long been subject to modification upon proof of material change in circumstances subsequent to the entry of the decree because of public policy."

However, the material change "must not be one that is anticipated by the parties at the time of the original decree." If there has been a material change in circumstances, then the Court must apply the Armstrong factors. In applying those factors, the Court stated, "the chancellor must compare the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree."

]]> The man argued his income had declined since the last agreement and his ex-wife's income had increased. Further, he had a child with his current wife and was also supporting his two step-children. While the chancellor agreed his income had declined since the divorce, he also noted that his expenses were voluntarily incurred to maintain a certain lifestyle. While his ex-wife's income had increased, so had her expenses. The Chancellor determined that while changes had occurred in both parties' financial situations, the changes were not material in nature and could have been anticipated by the parties at the time of the divorce. The Mississippi Court of Appeals agreed.

This case illustrates the need for parties to understand that it can be difficult to change an award of alimony at the time of divorce even when the parties financial conditions changed. The analysis applied by the Court is based on the specific facts of each case. While the general rule is whether there has been a material change in circumstances since the entry of the order, the material change has to be one which could not have been anticipated at the time of the original decree.

Given the economic times upon us where many people's income is in decline, you should consult with an attorney to see if your specific facts could warrant a modification of alimony. At the Kisselburgh Law Firm, we can discuss these matters with you to ensure your rights are protected. Call us at 601-936-4040 or contact us online to set up a consultation.

Facebook entry leads to divorce

2009-02-07T12:28:48Z

Divorce--Facebook style?

In a new twist to the traditional "Dear John" letter, a woman discovered her husband wanted a divorce from his entry in his Facebook account. The woman's friend, according to the article, was looking at the husband's Facebook and saw a message which said he had "ended his marriage." One problem--he had not told his wife. The wife said even after she heard about the message, her husband did not say anything. He is now living with his mother.

It appears the technological age has added a new twist to the divorce arena. First we had the wife ranting on YouTube about how her prenuptial agreement was unfair while complaining of her husband's shortcomings to the public via the Internet airwaves and now this husband posting his divorce intentions for everyone to read before telling his wife he wanted a divorce. What's next??

Word of advice. If you are divorcing your spouse, limit your public comments. Keep off the internet and don't make any videos--neither which will play well before the judge in court.

Joint Physical Custody in Mississippi does not mean equal custody

2009-01-30T12:14:15Z

Mississippi court holds joint physical custody does not mean equally divided custody

In Mississippi, the Court usually awards one parent physical custody while granting liberal visitation to the other. However, in some cases, courts can award the parties joint physical custody. Many parents believe that means custody on an equally divided basis. That is not necessarily true. Mississippi Code §93-5-24(5)(c) provides that "joint physical custody' means that each of the parents shall have significant periods of physical custody." What does that mean?

In a recent case out of DeSoto County, MIssissippi, the Court Appeals upheld a chancellor's ruling giving the mother more physical custody than the father despite awarding the parties joint physical custody. In this case, the mother was awarded physical custody during the child's time in school and the father was given all spring breaks as well as the summer except for two weeks. Alternating weekends, Thanksgiving Day, and the Christmas holiday were equally divided. The Court found that the chancellor's decision was not an abuse of discretion--the standard required to reverse the ruling. The Court noted that the statute did not require an equal amount of time and the father was granted a significant period of visitation. Finally, the Court noted that the child's grades suffered when the child was "shuffled" between parents during the school week.

If you are contemplating a divorce or involved in a custody dispute, you should consult with a lawyer to ensure you fully understand the terms used in any marital dissolution agreement or custody arrangement. At the Kisselburgh Law Firm, we can discuss these matters with you to ensure your rights are protected. Call us at 601-936-4040 or contact us online to set up a consultation.

U.S. Supreme Court says ex-wife gets pension benefits

2009-01-27T14:39:18Z

Unanimous U.S. Supreme Court holds ex-wife entitled to pension benefits

In a follow-up to a previous post concerning a dispute between an ex-wife and her daughter over the ex-husband's pension benefits, the U.S. Supreme Court issued a unanimous opinion upholding the Fifth Circuit Court of Appeals' decision giving the benefits to the ex-wife. However, the U.S. Supreme Court disagreed with the Fifth Circuit reasoning and affirmed the ruling on other grounds.

To recap the facts, Mr. Kennedy was an employee of DuPont and participated in their savings and investment plan (SIP) that was an ERISA benefit plan. In 1971, Mr. Kennedy married and three years later signed a beneficiary designation identifying his new wife, Liv Kennedy, as the sole beneficiary of the SIP plan. Twenty years later, the couple divorced. As part of the divorce, the ex-wife agreed to relinquish all rights to husband’s pension benefits with DuPont. The agreement to waive those benefit was contained in the divorce decree. However, a Qualified Domestic Relations Order was not submitted covering these benefits nor did the husband ever change the beneficiary designation for the account.

In 1998, Mr. Kennedy retired from DuPont and later died in 2001. His daughter was appointed administrator of his estate. She sent a letter to DuPont requesting the Estate be paid the funds in the SIP. DuPont refused, stating that the beneficiary designation identified the ex-wife as the beneficiary. She also asked the ex-wife (her Mom) to relinquish her rights to the account and she refused. In fact, ex-wife asked DuPont to pay up and they sent the ex-wife the $400,000.00. Daughter, on behalf of the Estate, brought a lawsuit.

]]> The District Court sided with the Estate and ordered DuPont to pay the funds to the Estate as opposed to the ex-wife. The ex-wife appealed to the Fifth Circuit Court of Appeals which reversed the district court and said the funds should be paid to the ex-wife. The Fifth Circuit said the divorce decree was not a Qualified Domestic Relations Order (QDRO) and a QDRO was the mechanism which needed to be used "for addressing the elimination of a spouse's interest in plan benefits."

The United States Supreme Court agreed with the Fifth Circuit's holding, but disagreed with its reasoning. In short, the U.S. Supreme Court said that a QDRO was not needed to eliminate a person's right to a benefit plan. Rather, the key was the beneficiary designation form and the procedures set up under the plan. The plan set up a procedure for the husband to designate a new beneficiary and he did not. The plan also set up a procedure for the ex-wife to waive her right to benefits, and she did not. Therefore, the employer had to pay the benefits as stated in the original beneficiary designation form no matter what the divorce decree stated. Thus, ex-wife gets the benefits and daughter does not.

What is the lesson learned? If you divorce, you must ensure that your designated beneficiary forms under any pension and/or retirement plan covered by ERISA are changed. You must make the change yourself following the rules given by your employer. Do not rely on a waiver of benefits in a divorce decree or QDRO. Change the beneficiary form or it could result in unintended consequences at your death--your ex-spouse getting your benefits. As a post-script to the case, court documents show the ex-wife, who got a little more than $400,000 in pension benefits, spent all of it and died in 2007.

At the Kisselburgh Law Firm, we represent those going through a divorce. If you would like to discuss your case, contact us online or call at 601-936-4040 to set up a consultation.

Fathering Court--an alternate remedy to jail?

2009-01-26T12:43:33Z

New alternative to jailing those delinquent in child support

In Washington D.C., a new program has emerged for those parents behind in child support payments who are without a job. The key is that they want to pay, but do not have the means. The new approach is Fathering Court. According to the article, it is an effort to put fathers on the right track to paying for their children and "emphasizes employment, starting with the basics."

While jail is still a remedy for those who just don't want to pay child support, this new approach is something Mississippi should explore. In many cases, especially during hard economic times, the non-custodial parent is without work and cannot pay. Jail provides no opportunity for that person to find a job. This program could be the answer.