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.

Holidays can be filled with stress in even the most solid families but in divorced or divorcing families, they can quickly become one of the most miserable times of the year.  Finances usually come into play, as well as increased demands on time, but the misery that parents sometimes experience usually results more from their need to be inflexible and unyielding in their plans as well as the need to feel as if they “beat” their former spouse.  Unfortunately, this behavior typically results in the children enjoying the holiday less as well, making everyone unhappy.  Put the children first and leave the fighting out of the picture.  Common sense and focusing on helping the children enjoy the holiday is the best pathway to an enjoyable holiday.  Here is a good article that addresses some of the issues.

Merry Christmas!

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.

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.

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.

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.

This isn’t really divorce related, but worth addressing.  Wesley Snipes looks like he’ll be spending the next few years in prison for tax evasion. He was convicted of tax evasion but while he appealed the conviction he was out on bail.  Now that the appeal is concluded, so is his freedom, at least for a while.  While Snipes intentionally sought to evade taxation, and will pay a heavy price, normal people can find themselves with a financially devastating tax situation if they neglect their taxes.  While not a criminal offense normally, failing to file returns or to pay the required tax results in penalties and interest and a debt collector that you really can’t hang up on.  In the middle of a divorce, the last thing a divorcing person needs is delinquent tax debt.  File your returns, pay your taxes and avoid significant financial consequences.  Remember – the IRS will still be married to you even if your spouse is not.

Recently, a company called SafeGuard Marketing Management, Inc. began selling a product called “Divorce Insurance.”  You certainly have to admire the ingenuity of a company to come up with a product like this.  However, the value of the product is questionable both morally and financially.  If you are contemplating marrying the love of your life, but at the same time anticipating a divorce, then you should probably just skip the pain and not get married.  The concept of “divorce insurance” trivializes marriage and in my view, encourages people to make no effort to resolve their differences.  In fact, it would actually provide an incentive to divorce and contribute to the destruction of many families.  If potential spouses want “insurance” against divorce, then their money would be better spent by investing in premarital counseling and marriage counseling, if problems arise.   Here is an article written by an attorney in California that expands further on the topic.

Divorce can be devastating financially as incomes are split, property is sold at a loss and the financial burden of single parenting takes effect.  For this reason, the financial toll must always be considered when couples are considering a divorce.  According to a recent article on findings by the Census Bureau, a study over a period of 15 years showed that couples who remained married during that time built up nearly twice the net worth of people who remained single.  Considering the visible toll on finances caused by divorce and the findings by the Census Bureau, a stark picture is painted for those that end their marriages.  Of course, situations differ among couples and a thorough evaluation of your finances is a critical component in understanding the pros and cons of divorce and reconciliation.

The typical scenario when a spouse learns that the other has done something that destroys the marriage is that the innocent spouse meets with a lawyer, who guides the spouse through the divorce process.  Occasionally, though, you find that while listening to the “outrage” that a client expresses over learning that their spouse has had an affair you also learn that your “innocent” client has also been having an affair.  So what do you do if a client wants a divorce but both spouses are committing adultery?  An agreed resolution on the ground of Irreconcilable Differences would be the preferable outcome, but litigation may be the only option in some circumstances.

The Mississippi Supreme Court recently addressed a similar scenario in Jenkins v. Jenkins.  In Jenkins, the court was faced with a situation where the lower court granted a person a divorce on the ground of Habitual, Cruel and Inhuman Treatment.  The guilty spouse tried to defend the charge by claiming the defense of “recrimination”, which is a common-law defense that states if each party proves a fault ground for divorce then neither is entitled to a divorce.  The defense of recrimination has been altered by Miss. Code Ann. 93-5-3, which allows a court to grant a divorce, even if both parties prove a fault ground for divorce, by determining which spouse’s actions constituted the proximate cause of the destruction of the marriage.  The Mississippi Supreme Court determined that although the wife admitted committing adultery, the trial evidence showed that the husband’s habitual, cruel and inhuman treatment was the cause of the divorce, not the wife’s adultery, and that the lower court properly denied the husband’s recrimination defense.

Although a scenario where both parties are committing actions that constitute divorce grounds is not the preferable situation, a spouse may still be able to obtain a divorce without his/her spouse’s consent if the facts are supportive.  If you find yourself in this situation, speaking with an attorney to help analyze the proximate cause of the destruction of the marriage very early on is vital.