Posts Tagged ‘Brandon Divorce Attorney’

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Telling Your Children You Are Getting a Divorce

Monday, January 9th, 2012

by Chris Palmer

One can only imagine how difficult it is to explain to your children why their parents are divorcing.  The questions, the pleading, the tears, the apologies and the shattered desire of sheltering your children from life’s pain.  For a parent that puts their children first, this pain has to be right at the top of the list of unpleasant experiences. However, others use that moment not to delicately guide their children into their new existence, but to destroy the other parent in the eyes of the children.  Too often children are intentionally sucked into divorce litigation and they become the victims of their parent’s need to win at all costs.

A recent article provides a thoughtful analysis of the process of explaining to your children that you are divorcing.  There are right ways to tell the children and there are certainly wrong ways to tell the children. The article recommends the following steps as the correct way to ease your children into a divorce:

  1. Tell your kids together, despite your differences.  They need to see that both of you will still be their parents.
  2. Don’t blame or criticize your spouse.  Accept responsibility for the split and use this as a first step in developing a new relationship with your children as divorced parents.
  3. Explain what post-divorce life will look like for the children.
  4. Rehearse the conversation with your spouse.  Anticipate the questions and be prepared with responses.
  5. Remind the children that they did nothing to cause the divorce.
  6. Be patient and give your children time to adjust.

Anyone divorcing, with children, would do well to take the points mentioned in the article and use them in discussing divorce with their children.

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Posted in About Divorce, Collection, General | No Comments »

When Does Flirting Become Cheating?

Thursday, July 14th, 2011

by Chris Palmer

When does online or text flirting become cheating? That is not a simple question to answer in the context of a divorce but a recent article has articulated nine red flags that may indicate that more than flirting is occurring.  While none of the listed factors are proof that a spouse is cheating, they are an excellent indicator that more investigation is needed. In fact, a study indicated that the Internet is typically the first step toward the ultimate goal of real-life cheating.  If you suspect your spouse is cheating, call us immediately because you may need to act quickly to preserve evidence critical to your divorce.

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Annulment of a Marriage

Wednesday, July 13th, 2011

by Chris Palmer

Mississippi Code Ann. 93-7-1 states that, “All bigamous or incestuous marriages are void, and a declaration of nullity may be obtained at the suit of either party.”  A bigamous marriage is one in which one of the parties is already legally married to another.  An incestuous marriage is defined by Miss. Code Ann. 93-1-1, which states:

(1) The son shall not marry his grandmother, his mother, or his stepmother; the brother his sister; the father his daughter, or his legally adopted daughter, or his grand-daughter; the son shall not marry the daughter of his father begotten of his stepmother, or his aunt, being his father’s or mother’s sister, nor shall the children of brother or sister, or brothers and sisters intermarry being first cousins by blood. The father shall not marry his son’s widow; a man shall not marry his wife’s daughter, or his wife’s daughter’s daughter, or his wife’s son’s daughter, or the daughter of his brother or sister; and the like prohibition shall extend to females in the same degrees. All marriages prohibited by this subsection are incestuous and void.

(2) Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.

Marriages that are founded on bigamy or incest are considered void  in Mississippi and may be set aside by either spouse or by third parties.  Once granted, an annulment is as if the marriage never occurred.

Mississippi Code 93-7-3 addresses situations where marriages are “voidable” by spouses but are not necessarily void unless one of the spouses raises the issue.  The statute lists five situations where a marriage is voidable if the situation exists at the time of marriage:

1.  Incurable impotency;

2.  Adjudicated mental illness or incompetence of either or both parties;

3.  Failure to meet licensing requirements if not followed by cohabitation;

4.  Lack of consent, whether through physical means, age, mental acuity, fraud or force, provided that the cause for annulment is brought within six months after discovery;

5.  Wife’s pregnancy by another, as long as the husband did not know of the pregnancy and the action is brought within six months after discovery of the pregnancy.

Children born from marriages that are annulled for reasons other than incest are considered legitimate and are governed by same rules applied in divorces.  Children born of an incestuous marriage are considered illegitimate.  Miss. Code Ann. 93-7-5.

Annulments are not as common as divorces and it is rare that a client is entitled to an annulment instead of a divorce.  However, if you feel that you may be entitled to an annulment, it is critical that you meet with an attorney immediately since there are time limitations as well as potential defenses that may prohibit an annulment.

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Child Support Contempt Defense

Wednesday, July 6th, 2011

by Chris Palmer

The laws and procedures concerning the enforcement of child support orders greatly favor the person receiving the money.  But there are defenses.

Normally, the person receiving child  support simply alleges that child support was not properly paid and then it becomes the obligation of the payor to prove that payment was made or to prove a valid defense.  If payments were properly made, then the contempt action is dismissed.  If payments were not made, the person paying must prove a recognized and valid defense to the allegation of nonpayment in order to avoid being held in contempt of court.

One of the main defenses to a charge of contempt (other than proving payment) is that the nonpayment is based on an inability to pay the child support.  There has to be a genuine inability to pay and not a situation where the paying party overextended themselves through frivolous spending.  This means that the party must spend money on only basic needs and then apply everything else to the child support payment.  A defendant that claims inability to pay but on cross examination reveals the amount of money spent of non-necessities (beer, cigarettes, etc.) often leaves the courtroom in handcuffs.

Ambiguity in a child support award can also be a valid defense.  For example, a court order that requires a person to pay “14% of their monthly income” would be unenforceable and too ambiguous since it would be subject to multiple interpretations.  Support awards should contain a specific dollar amount in order to avoid ambiguity in interpretation.

While there are other valid and acceptable defenses, the best defense is to avoid getting behind in the payment of child support in the first place.  Finding yourself on the wrong side of a contempt complaint can result in incarceration, wage garnishment and having to pay the other party’s legal fees.   If finances create the necessity of a “financial juggling act” when monthly bills come due, it is far better to not pay a credit card bill than it is to not pay child support.

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Does My Spouse’s Adultery Mean I Get Custody of the Children?

Tuesday, June 28th, 2011

by Jake Adams

You either caught your spouse cheating or your spouse caught you. Divorce is imminent. Does the “guilty” spouse lose custody of the kids because of his or her adultery? Not necessarily.

There are many factors contemplated by the court in determining child custody. These are known as the Albright Factors, – a custody test provided by the Mississippi Supreme Court in 1983. As to marital fault, Albright specifically says:

Marital fault should not be used as a sanction in custody awards.

The Supreme Court wants the best interest of the children to prevail, and in Albright, it recognized that in some cases the better parent is not necessarily the better spouse.  So, marital fault in and of itself is not the dagger to custody hopes many people believe. However, in some cases the underlying behavior that leads to the finding of marital fault is critical. For example, in the case of a parent who participates in an adulterous relationship in the presence of his or her child, the Court will most likely find against that spouse as to “moral fitness of the parent” – a key Albright factor.

If you have questions concerning marital fault and custody, speak to an attorney as soon as possible.

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Do I Need a Lawyer?

Thursday, June 23rd, 2011

by Chris Palmer

Can’t I get a divorce by just filling out some forms?  I saw online where I can get the divorce forms for a lot less than the cost of a lawyer, is that a bad idea?  These are questions that come up periodically and the answer to both questions is “yes.”  To explain, a no-fault divorce can be very simple for a lawyer to put together for a client and can take very little time by the lawyer to do so.  But, the final product you see is the culmination of years of education, experience and familiarity with the differing requirements of chancery court judges along with careful drafting of documents that address the client’s unique circumstances  For divorces, there is no “one size fits all” form.

Proper preparation of divorce documents is critical.  Lawyers look at both the immediate goal of obtaining a divorce as well as the long-term consequences of the divorce judgment.  Usually, parties that try to get divorced without the benefit of a lawyer create documents that are so awful, they often end up being completely unenforceable or void.  If that happens, it is almost certain that the parties will end up paying much more money in legal fees to repair the mess that they would spent to do it correctly in the first place.

The decisions you make in a divorce, and the documents that result, can control aspects of your family for tens of years and drastically impact your finances and property.  Nothing that important should be relegated to a do-it-yourself kit.  While there are certainly legal documents you can create without a lawyer that will serve you well, in a divorce, there are no short cuts.  Do it right the first time to avoid major problems in the long-term.

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How do I Increase or Decrease Child Support Payments?

Thursday, June 23rd, 2011

by Chris Palmer

When child support payments are set by court order and there is a desire to either increase or decrease the amount of the payments, the person seeking the change must show that a substantial and material change in the  circumstances of either the parents or the child has occurred since the date of the child support judgment.  The process is begun by the party seeking the modification filing a Complaint for Modification and having it, along with a summons and court date, served on the defendant.  In reviewing a request to change the child support amount, the court considers the increased needs of older children, higher expenses, a child’s medical needs, the parents’ financial situation, the health and needs of the parents, the monthly living expenses of the party ordered to pay child support, the parents’ tax obligations, the respective costs of each party’s residence and any other facts and circumstances the court considers relevant.  However, the most common reason for either party seeking a change in child support amount is a change in the payor’s income.

A modification cannot relitigate issues already decided in the original decree.  Modifications must be based on facts that occurred after the court established the original child support order.  If you were not satisfied with the original order then the remedy was to ask the court to reconsider and/or appeal the decision, but there are strict time frames in which that must be done.  Also, the change in circumstances sought to be used as the basis for a change in child support amount must be unanticipated at the time of the original decree.

Lifestyle decisions cannot be used to justify a child support modification.  For example, a payor cannot purchase a new car and then claim he should pay less child support because the car loan is too expensive.  Additionally, a payor cannot have child support reduced because he or she decides to have more children.

Typically, a modification is brought because the person receiving child support discovers that the payor has received an increase in pay.  If so, a substantial increase in pay will justify a modification with the court considering the child support guidelines.  Likewise, if a payor receives a substantial decrease in pay, a downward modification may be appropriate.  However, if the payor created the decrease in pay, the situation may be a little more difficult to address because courts are traditionally reluctant to take child support away from a custodial parent simply because the payor wanted to take a lower paying job.  In those situations, the court is likely to pay close attention to the motivation behind the payor’s actions.

If a modification is sought, it is important to act quickly because a modification is generally only effective from the date of the complaint to modify (at the earliest) or the date of the court order modifying the amount.

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Posted in Child Support, FAQ, Modification of Child Support | No Comments »

Will I Get or Pay Alimony?

Wednesday, June 22nd, 2011

by Jake Adams

One of the most frightening aspects of divorce is the question of how it will affect your financial future. That’s why many clients usually want to know if they will receive financial support from their spouse in the event of a divorce. In Mississippi, the law provides for a spouse to receive alimony under certain circumstances. As you will read below, the test for alimony is somewhat complicated, but in very general terms alimony is based on two things: (1) need, and (2) ability to pay.

For example, in a long-term marriage where the wife’s primary position was that of homemaker and parent while husband was the primary wage earner and has the ability to pay, the wife will most likely receive some type of alimony.

The two most common forms of alimony are rehabilitative alimony and periodic alimony.

Rehabilitative alimony is usually awarded to the spouse who needs financial support, but has the ability and skills to become self-supportive or to acquire the education and skills necessary to become self-supportive. Generally speaking, rehabilitative alimony is common for middle aged and younger spouses in shorter marriages. It’s design is just like the name implies – to support the needing spouse until he or she has time to get on their feet. Sometimes this is six months. Other times the rehabilitative alimony will extend for several years or more.

Periodic alimony is more permanent and usually ends only upon the death or remarriage of the spouse who has need. Again generally speaking, a spouse is more likely to receive periodic alimony as the result of a long-term marriage if the needing spouse is unemployable or unlikely to ever be able to reach the income level of the paying spouse.

Mississippi law provides a very specific and somewhat exhaustive set of factors a court must consider in order to determine the appropriateness of alimony. These are commonly referred to as the Armstrong Factors.

The Armstrong Factors the court MUST consider are as follows:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide child care;
7. The age of the parties;
8.  The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault of misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

As you can see, there are many factors the court must consider, and the circumstances of every marriage will apply differently to these factors, but the ultimate goal of Mississippi law is to provide financial support for spouses with a need.

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Internet Infidelity

Tuesday, June 21st, 2011

by Chris Palmer

Unless you have been living in a hole with no access to news, you have undoubtedly heard of the scandal involving Congressman Anthony Weiner, who recently resigned after it was revealed that the married congressman had sexual conversations with females, sent females lewd photographs of himself and then publicly blamed the fiasco on a “hacker.” What started as a foray into the temptations of internet anonymity and access, ended with public embarrassment, career destruction and possible divorce. Weiner’s public self-destruction teaches the average married person a valuable lesson in trust, proper marital boundaries and the use of technology to facilitate “internet infidelity.”

Engaging in sexual conversations, flirting and conversing with someone other than your spouse via email, Twitter, Facebook or text messaging destroys the trust between spouses. Often, the ease of communication can lead to very intimate “electronic” relationships that give the appearance of infidelity.  In my opinion, the presence of an “internet infidelity” can be just as devastating to a marriage as a physical affair because the innocent spouse will always believe that a physical affair has occurred or is in the process of occurring. Once the suspicion of an affair takes hold, a divorce complaint often follows since the discovery of adultery usually begins with suspicion.

Adultery is a ground for divorce in Mississippi and is defined as “voluntary sexual intercourse of a married person with a person other than the offender’s spouse.” Owen v. Gerity, 422 So. 2d 284, 287 (Miss. 1982). Because of the secretive nature of adultery, direct proof is not required and one may prove adultery by circumstantial evidence. Essentially, to prove adultery by circumstantial evidence, the proof must show (1) a spouse’s adulterous nature, which usually involves infatuation or adulterous inclination and (2) a reasonable opportunity to act on the infatuation or inclination.  Facts that support a finding of adultery have been secretive actions by a spouse, frequent telephone calls and letters to a suspected paramour.  Clearly, engaging in intimate conversations with someone not your spouse over the internet, by text message or other means will likely satisfy the element of proving infatuation or adulterous inclination.  However, unless you are able to prove a reasonable oppurtunity to act on the infatuation or adulterous inclination, then you will be unable to obtain a divorce on the basis of adultery (unless there is an admission or some form of direct proof).

Engaging in actions such as those committed by Anthony Weiner may not constitute grounds for divorce alone, but it is likely that with proper investigation, proof of reasonable opportunity may be discovered.  If you suspect your spouse is committing adultery and you are considering divorce, it is important that you speak with a lawyer before confronting your spouse.  With proper legal advice, steps may be taken to preserve evidence and to make sure you are able to present the strongest case possible. Additionally, if you suspect adultery, it is critical that you do not resume a sexual relationship with your spouse because if you do, the law considers you to have forgiven your spouse of the adultery and you will be unable to use the adultery as a ground for divorce. You may ultimately decide that forgiveness is the best course of action for your family but you should first seek legal advice from a competent divorce attorney so that you have the knowledge to make an informed decision as to your marriage.

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