Mark Chinn's Family Law Blog

IT'S ALMOST NEVER OVER!

2014-06-30T09:20:00.000-05:00

Many people talk about getting a divorce “over with.” However, the truth of the matter is that no divorce order that involves custody, support or spousal support is ever final. They are always subject to change. The standard for all such changes, except visitation, is a “substantial change.” The logic behind requiring a “substantial change” is that the Court system cannot bear litigation over every little change.

Divorce clients should stay in contact with divorce attorneys at least once a year to at least briefly review their situation to determine if changes are necessary. Austin v. Austin, 981 So. 2d 1000 (Miss. Ct. App. 2007)

IF YOU GO TO COURT, MAKE SURE YOU RAISE ALL ISSUES

2014-06-23T09:30:00.000-05:00

Divorce orders are subject to change or “modification” usually if there is what is known as a “substantial change in circumstances.” When such a change occurs, divorced persons should contact a lawyer. However, there is a caveat: make sure all issues are addressed. If a person goes to court seeking a change and fails to bring up everything that could be changed, they might be barred from bringing that issue up in the future. Howard v. Howard, 968 So. 2d 961, 973 (¶27) (Miss. Ct. App. 2007)

NON-MARITAL PROPERTY CAN BE CONSIDERED IN EQUITABLE DISTRIBUTION

2014-06-16T10:14:00.000-05:00

Many parties and attorneys mistakenly assume that only marital property is relevant in a divorce case. Marital property is simply defined as all property acquired during the marriage, except by gift or inheritance. (Non-marital property can also be commingled or “transmuted” to marital property). Even though non-marital property is not generally subject to division, it is always subject to review.

After a court has looked at the marital property, it must then examine the situation of the parties after a potential division, including a review of each parties separate property. If things look unfair, the Court can award a larger percentage of the marital estate where the other party has a substantial edge in separate property. Ainsworth v. Ainsworth, No. 2013–CA–00148–COA (5/27/14)

AGREEMENTS MUST BE CLEAR

2014-06-09T09:57:00.001-05:00

Divorcing parties should take care to make sure their agreements are clear and state exactly what they mean. For example, in a recent case, the agreement stated that the parties would pay “any other expense related to day care or school.” In addition, the agreement provided that the parties would divide college “tuition.”

In a contempt action, the Supreme Court held that since the first phrase did not include “tuition”, as did the second phrase regarding college, the agreement did not require either party to pay private school tuition. Gaiennie v. McMillan, No. 2012–CA–01772–SCT (5/15/14)

DON’T MAKE SIDE DEALS

2014-06-04T08:50:00.002-05:00

Divorce parties often make side deals or adjustments to their relationship without consulting a lawyer. While Courts and lawyers encourage cooperation, making significant changes to the divorce order without actually changing the order is very, very dangerous.

An example is found in the recent case of Gaiennie v. McMillan, No. 2012–CA–01772–SCT (5/15/14). There, the Mother was supposed to make a contribution to a college fund, called MPACT (a state sponsored college savings plan). The grandfather established a different college program, so the Mother and the father agreed that the Mother could pay private school tuition instead of contributing to the MPACT plan.

Later, disagreement arose and the Mother sought a written acknowledgment from the Father of their side deal. He refused and later sued her for contempt. The trial judge found her in contempt. Although the case was later reversed for other reasons, the lesson is the same: don’t make side deals.

GRANDPARENT VISITATION DOES NOT APPLY TO GREAT GRANDPARENTS

2014-04-21T14:33:00.000-05:00

The Mississippi statute allowing grand parent visitation defines “grand parent” as the parent of the parents. It therefore does not include great grandparents. Lott v. Alexander, No. 2013-CA-00104-COA (3/11/14)

JUST BECAUSE PROPERTY IS NON-MARITAL DOES NOT MEAN SHOULD NOT BE CONSIDERED

2014-04-16T09:02:00.000-05:00

A lot of clients do not think they need to disclose the contents or value of separate property or non-marital property. This is not the case. Parties are obligated to disclose and value all of their assets whether they are marital or non-marital. In the end, the analysis of a proper division takes into consideration the separate property even though the separate property will not be divided.

In a recent case, the Court of Appeals justified a better than 50% division of marital property to the wife on the grounds the husband had considerable non-marital property in his name. The Court reiterated that “equitable division” does not mean “equal division” and found the division fair. Roberts v. Roberts, NO. 2012-CA-01523-COA (4/1/14)

WARNING FOR CHILD SUPPORT PAYERS: DOCUMENT, DOCUMENT, DOCUMENT!

2014-04-14T09:19:00.001-05:00

Thirty years ago I represented a yard man who was sued by his wife for back-due child support going back 20 years. The wife testified as to the amount of support and said the man never paid. The man was a yard man who made an honest living but did not have a checking account. He scraped together a few money order receipts for support but that was about all he could come up with. In what I still regard as one of the most inequitable rulings ever, the Judge found this poor man in contempt because he couldn't prove he had made payments and certainly could not prove he made payments 15-20 years ago. The Judge ruled it was his burden.

Despite the inequity of the ruling, it was right in a legal sense. All payors of obligations must know that it will be their burden to show they made payments they were supposed to make. All payments should be made by check or other means which can be clearly documented. Automatic deposits in bank accounts is a great method. Documentation as to the nature of the payment should be clear. Payments for different things should not be combined in one check or payment, but separated: e.g., payments for medical reimbursement in one check, payments for school activities in another, and child support in another. Roberts v. Roberts, NO. 2012-CA-01523-COA (4/1/14)

A MISGUIDED BUSINESS VENTURE CAN BE REGARDED AS MARITAL WASTE

2014-04-09T09:09:00.000-05:00

There are many circumstances in divorce cases where clients complain their spouse invested money unwisely in ventures. Many times, lawyers advise and courts find that the misguided investment is a risk both parties bare and neither party should be reimbursed–so to speak–for the lost investment. The reasoning is that the venture could have turned a profit and there would have been no claim then that the money should not have been invested. However, lawyers and clients should not just dismiss arguing that foolish or near-frivolous investments constitute a form of marital waste for which the marital estate should be “reimbursed.” Recently, a Mississippi Gulf Coast Chancellor was affirmed in making a man pay back to the divorcing wife one-half of money the man had invested on his own in what the Judge characterized as a “frolic.”
Roberts v. Roberts, NO. 2012-CA-01523-COA (4/1/14)

TENNESSEE RULING REINFORCES INEVITABILITY OF SAME-SEX MARRIAGE

2014-03-31T12:31:00.000-05:00

I previously blogged that there would be a cascade of rulings eroding ant-gay laws:

Another ruling just came down from the federal district court in Tennessee which granted a preliminary injunction against the enforcement of Tennessee's constitutional and statutory provisions against recognition of same-sex marriages from other states. Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014).

The opinion cited most of the relevant post-Windsor federal court case law, noting that the federal courts have so far unanimously held that the states are not permitted to restrict marriage to persons of the opposite sex, and finding a likelihood that the plaintiff will prevail on the merits.

Thanks to Brett Turner of National Research Group, pre-eminent research specialist, research@nlrg.com.

HOW TO HIRE A LAWYER WITHOUT BEING DETECTED

2014-03-24T09:05:00.003-05:00

Most of the time, divorce clients should contact their lawyer without their spouse knowing it. Early advice without detection can be critical. The technology of today has made finding and hiring a lawyer without detection difficult. Here are some tips:

Don’t look for your lawyer on an internet connection traceable to you. Phones, tablets, and computers create a “search history” which can be discovered. Even if you know your spouse will not have access to the particular device, they may be able to see your searches through the cloud or other remote technology. (If you are familiar with it, you can enable “incognito mode” and search without leaving a history).
Don’t call you lawyer on your cell phone. Cell phones leave a call history. Cell phone bills can be checked at any time over the internet to discover call history.
Don’t pay your lawyer with checks or credit cards to which your spouse will have access to statements or computer access to payment records.
Don’t take your cell phone to the appointment, as many cell phones are equipped with GPS which could allow your spouse to track your movements.

CAN’T GET DIVORCED IN MISSISSIPPI? TRY ANOTHER STATE.

2014-03-19T14:36:00.000-05:00

Mississippi requires either mutual agreement to divorce or that one party have what are known as “fault grounds” such as adultery, cruelty, drunkenness, or use of drugs. The requirement for fault puts many people in a position where they cannot get the other party to agree to a divorce and cannot get a divorce because they do not have a “fault ground.” This leaves parties stalemated in unhappy marriages.

One solution is to move to another state where fault grounds are not required and obtain a divorce there. Many people chose states that have short residency requirements and no fault ground requirements for divorce such as Montana, and Nevada. Southeastern states such as Alabama, Texas, and Florida have relatively short residency requirements and are “no fault” states. If the state considers the residence legitimate, it can move forward to divorce, but may not be able to decide custody or property issues without what is known as personal jurisdiction.

Once a party divorces in another state, they can return to Mississippi and request a decision on the other parts of the marriage, such as custody and property division. See: Pierce v. Pierce, No. 2012–CA–01966–SCT (2/20/14)

OPENNESS IN GOVERNMENT IS KEY TO FREEDOM

2014-03-17T09:22:00.000-05:00

Freedoms seemingly basic to us have been fought for and do not exist in Russia or Crimea today. We take for granted our open access to our government. March 16 was “Freedom of Information Day,” and we are reminded that the fourth U.S. President, James Madison, was responsible for the introduction of the Bill of Rights.

All court proceedings are open to the public. Most records are available to the public. Meetings of public boards are open to the public, with certain logical exceptions. This freedom to access our government was fought for at the beginning and is a continuing battle.

I, personally, was involved in 1979 in the drafting of the Mississippi Open Records and Open Meetings Laws. We take these laws for granted today, but the Legislators who passed these bills had to have the forward-thinking and the will to fight for these freedoms. What we take for granted today was a battle in 1979. All credit goes to State Senator Carroll Ingram and Lieutenant Governor Evelyn Gandy. America marches on as the leader of freedom and must remember it is a continuing battle.

18 YEAR-OLD N.J. GIRL WILL NOT WIN HER SUIT AGAINST HER PARENTS. THE STATE WILL NOT SUPPORT A DISOBEDIENT CHILD.

2014-03-12T11:57:00.000-05:00

Rachel Canning

CARLO ALLEGRI/REUTERS/LANDOV

18 year-old New Jersey school girl Rachel Canning's suit will fail in court and will succeed in ruining her family and that important part of her future. She may think she is the first one to think of such action, but she is far from it. There are not many of us that did not run away from home at some point in our lives to a sympathetic neighbor's house trying to avoid family discipline. However, most of us do it at age three. This spoiled brat and her enabling and meddling adult friends are doing it at age 18.

While the Youth Courts of most states are charged with making sure parents do not neglect their children, this is not one of those cases and Rachel is going to lose. The New Jersey trial Judge correctly pondered if this type of suit was going to open the flood gates for suits by children to get particular presents from their parents. In 1919, a Mississippi Court said exactly the same thing in denying the suit of six children against their father, stating, “We are not opening the door of the courts to any unruly or disobedient child who may complain at either the amount or kind of support provided by a father. Rawlingsv. Rawlings, 121 Miss. 140, 148 (1919) This legal position has been back up in subsequent decisions, such as ones denying college support for children who refuse to have a relationship with the parent from whom they seek payment for the privilege.

One final query: children must normally bring suits through adults such as parents or guardians. Therefore, either Rachel is not legally competent to bring the suit on her own, or, if she believes she is legally competent to pursue legal relief without her parent’s consent, then she is surely emancipated enough to support herself, too.

AN INCREASE IN VALUE IN SEPARATE PROPERTY CAN BE CONSIDERED MARITAL PROPERTY

2014-03-10T09:10:00.000-05:00

Let’s assume a person has a company that was clearly started before the marriage, maybe even with inherited funds or by gift. This company is not a marital asset. However, if the company increases in value during the marriage, that increase in value can be considered a marital asset.

The key inquiry is whether the spouse took effort during the marriage in increasing the value of the company. Factual situations can very significantly, but, generally, when a spouse actively participates in the company, that active participation is considered “marital effort” and the increase in the value of the company is “marital.”

One way to help us look at it is the difference between a spouse owning stock in Coca Cola versus stock in a small family store. The increase in the Coca Cola stock is not due to the efforts of the spouse, but to the “passive” forces of the market, and will not, therefore, be marital property. However, the spouse’s efforts in a small family-owned business which contribute to the increase in the value of the business will be marital and therefore divisible under equitable distribution.

Such situations require valuation of the business both at the time of the marriage and at the time of divorce, and perhaps expert testimony on the reasons for the increase in the value of the marriage. For a Mississippi case on the subject, see: A & L, Inc. v. Grantham, 747 So. 2d 832, 839 (Miss. 1999).

DON’T AGREE TO TOO MUCH CHILD SUPPORT IN AN AGREEMENT, EVEN IF YOU WANT TO

2014-03-03T09:01:00.000-06:00

Many times a non-custodial parent wishes to help his children and agree to pay an amount of support which exceeds the statutory amounts. This is admirable but not advisable in most circumstances. The problem comes when there is a change in circumstances or when it is apparent the obligations cannot be met.

The high obligation may be a bad deal, but the payor can get stuck with it and held in contempt. See: Short v. Short, No. 2011–CT–01096–SCT (2/6/14). All other things being equal, the best policy is to agree to the statutory amount and then make voluntary payments to supplement the lifestyle.

ARE BAD INVESTMENTS CONSIDERED MARITAL WASTE?

2014-02-26T09:02:00.000-06:00

Many people complain their spouse has “wasted” assets by making investments which prove to be bad or by making investments without their knowledge. In one recent case, the woman complained the husband had wasted money on a Hawaii house that fell upside down and a pizza business that went belly side up. Neither the trial court nor the appellate court regarded the failed investments as waste. Ward v. Ward, No. 2012–CA–01468–COA (2/4/14).

The law requires the judge to investigate each case on its merits given the so-called “Ferguson factors.” One would speculate that the woman in Ward would not have complained if the investments had worked out well, even though she didn't know about them when they were initiated. For that reason, such investments will probably rarely be considered “waste.”

FACEBOOK POSTS COST STAY-AT-HOME MOM CUSTODY

2014-02-24T13:01:00.000-06:00

I continue to be amazed at what people are willing to put on Facebook. People should realize that postings on Facebook are really postings to the whole world. Divorce attorneys are showered each day with social networking proof both for and against their clients.

I was amazed the other day to hear of local Facebook postings regarding a divorce and communications between a father and his children. Such information does not belong on Facebook. While people today may not mind having the world know their thoughts, they should know it can cost them dearly in court.

A good example is the recent case of Borden v. Borden, NO. 2012–CA–01258–COA (1/21/14). There, a stay-at-home mom lost custody of her children after the father introduced 75 pages of lurid posts on Facebook by the mom with two different men.

The trial judge stated: “The mother testified that the children are in a stable environment. But they had one before if she’d stayed off the internet and stayed off of her contact with her two boyfriends especially running around on her husband. All of this indicates to me that she really has no stability of the home life.” Ironically, the mother lost custody even though the judge found there was not sufficient proof of adultery! Be warned, what you post on Facebook and other social networking sites can cost you dearly.

RETROACTIVE REDUCTION IN CHILD SUPPORT PAYMENTS IS NOT ALLOWED

2014-02-19T09:08:00.001-06:00

In a recent case, a woman was guilty of lying on her financial statement and awards of alimony and support were made based upon those lies. Later, when the Judge found out about the lies, the Judge tried to correct the wrong by retroactively reducing the payments. The Supreme Court found that this was not allowable even though the previous support was based upon fraud!

Here is their discussion:

“In child support modification proceedings . . . the chancellor is accorded substantial discretion and is charged to consider all relevant facts and equities, to the end that a decree serving the best interests of the children may be fashioned. . . .” A.M.L. v. J.W.L., 98 So. 3d 1001, 1016 (Miss. 2012) (quoting Tedford v. Dempsey, 437 So. 2d 410, 417 (Miss. 1983)). Each time child support payments become payable, those payments vest in the 14 child. A.M.L., 98 So. 3d at 1017. Further, “[a]ny order for support of minor children . . . shall not be subject to a downward retroactive modification.” Miss. Code Ann. § 43-19-34(4) (Rev. 2009). If downward modification is warranted, reductions become effective on the date of the judgment ordering modification. A.M.L., 98 So. 3d at 1017 (citing Cumberland v. Cumberland, 564 So. 2d 839, 847 (Miss. 1990) (citations omitted)). ¶31. Therefore, the chancellor erred in allowing a retroactive downward modification to Stewart’s child-support obligation dating back to the August 2010 hearing. Thus, Stewart was required to continue $1,300-per-month payments until the judgment ordering modification was entered in February of 2011. See Cumberland, 564 So. 2d at 847; Thurman v. Thurman, 559 So. 2d 1014, 1016–1018 (Miss. 1990); Brand v. Brand, 482 So. 2d 236, 237 (Miss. 1986); Hailey v. Holden, 457 So. 2d 947, 951 (Miss. 1984); Hambrick v. Prestwood, 382 So. 2d 474, 476 (Miss. 1980).

Finch v. Finch, No. 2011-CT-00306-SCT (1/16/14).

ESCALATION CLAUSES IN CHILD SUPPORT ARE IN!

2014-02-17T09:32:00.001-06:00

It makes sense to build clauses into child support agreements which allow the support to fluctuate up or down depending upon the income of the payor. These clauses are called "escalation clauses." In Mississippi, the Supreme Court suggested years ago that attorneys use escalation clauses. The reason is that they allow for changes in support without making the parties go back to court.

However, the Court later imposed criteria for the clauses which made it impossible for any attorney to draft an effective clause. In what appears to be an attempt to bring escalation clauses into more widespread use, the Court recently addressed this situation and stated that clauses tied to a percentage of adjusted gross income on the tax return are likely to be considered valid as “clear and measurable” and “adequately and sufficiently providing for the needs of the child.” Short v. Short, No. 2011–CT–01096–SCT (2/6/14).

IF YOU FUDGE ON YOUR DIVORCE FINANCIAL STATEMENT, THERE IS NO TIME LIMIT ON A COURT REDRESSING THE LIE

2014-02-12T11:31:00.001-06:00

Clients often want to withhold some financial information from a divorce financial statement. Often, clients don’t want to list inherited property or accounts they have with other people, such as a joint account with their mother, “because the money is really Mother’s.”

Such actions jeopardize the entire proceedings, can be redressed at any time in the future, and can lead to retroactive penalties. Such actions are regarded as a “fraud upon the court” and can be raised even years after a matter is final. See: Finch v. Finch, No. 2011-CT-00306-SCT (1/16/14).

ATTORNEYS SHOULD USE FILE CLOSING CHECKLISTS

2014-02-11T12:17:00.001-06:00

I have just finished working on a case where the attorneys for both parties failed to close their files after the parties reconciled, and failed to properly dismiss the divorce action. Later, when the parties fell apart again, this presented a procedural quagmire. A recent decision, Brewer v. Holiday, No. 2011-CT-00964-SCT (1/9/14), also highlights the problems that can come from failing to double-check file closing details.

There, the parties and their attorneys signed an Agreed Order for a change in custody and child support which the parties operated under for years. However, neither attorney ever presented the Agreed Order to the Judge. When things fells apart, Momma sued Daddy for back due support pursuant to the unmodified order. The Chancellor refused to even hear testimony about the prior Agreed Order, ruling (correctly) that only he could modify an order and since he was never given the order, it meant nothing. The Court of Appeals agreed. The Supreme Court reversed and instructed the Chancellor to examine the equities of the matter.

That being said, all of these problems can be avoided if attorneys follow a meticulous procedure of determining when their responsibilities are concluded and following a “File Closing Checklist.” Among the things on the checklist:

Have all fees and expenses been paid?
Have all original materials been returned?
Have all pertinent provisions of the order been complied with?
Is there a final order of some kind that has been signed and filed which absolves the attorney from responsibility and ends the matter?

One of the forms in my book is a “File Closing Checklist” found in Forms, Checklists and Procedures for the Family Lawyer, published by the ABA and which may be purchased at ababooks.org.

FATHER ORDERED TO ALLOW HIS CHILDREN TO PARTICIPATE IN BASEBALL

2014-02-05T08:51:00.000-06:00

Non-custodial parents often have limited time for visitation, such as every other weekend and some time during the summer months. Children’s activities can interfere with that visitation. How do we resolve those issues. The case law is apparently quite fluid on this.

As a starting point, we know that a parent’s visitation cannot be restricted in any way unless there is a danger to children. In addition, we have some basic law that the non-custodial parent cannot require participation of the children in activities during the other parent’s visitation. One would hope that parents would use common sense to balance the need of the children to participate in activities and still get time with their visiting parent. Some people can’t do it though.

In the recent case of Jaggers v. Magruder, No. 2012–CA–00097–COA (1/7/14), the divorced parents of three children actually litigated for several days over the children’s participation in baseball programs. The children were gifted in baseball and wanted to participate, but the amount of baseball interfered with the father’s visitation.

After a lengthy trial, the Judge weighed the desires of the children to play, the father’s right to visitation and the father’s right to have unfettered visitation. The Chancellor also weighed the fact that the Father had full knowledge of and did not interfere with the children’s enrollment in baseball. The solution: allow the children to participate but allow the father make-up visitation if he needed it due to baseball tournaments. One has to wonder why parents would have to litigate if they were both thinking about their children and not themselves and their resentment for each other.

YOU CAN LOSE CUSTODY IF YOU DON’T FOLLOW THE DIVORCE ORDER

2014-02-03T09:13:00.002-06:00

The rules for custody and custody modification seem to change if parties agree to joint physical custody. Changing custody which is not joint requires an adverse change in circumstances in the custodial parent’s household which adversely affects the children. This is a very difficult two-part standard to meet. However, where the custody is joint the standard is relaxed to allow Chancellors to make changes which are “practical.”

In Pogue v. Pogue, No. 2012–CA–01339–COA (11/26/13) the parties had agreed to joint custody with a “week on/week off” custody schedule. The mother moved out of the county and in with a boyfriend, thus making it impractical for her to take her children to school. In a custody battle between the two, the Mother lost because the proof showed she had let the children stay with the father to attend school and could not practically take the children to their school due to her living arrangements.

In a divorce agreement in 2010, the parties agreed to week on/week off custody of their children. The Court of Appeals ruled the Chancellor had the right to determine what was best for the children, “taking the parties as he found them.”

DO NOT CHANGE YOUR DIVORCE AGREEMENT WITHOUT CONSULTING AN ATTORNEY!

2014-01-29T08:50:00.000-06:00

At the exit interview with out clients we counsel them not to deviate from the divorce order without consulting us. We advise that deviations from the order without changing the order can bring trouble.

This happened to the wife in Pogue v. Pogue, No. 2012–CA–01339–COA (11/26/13). There, the parties divorced, and the husband got the home and agreed to refinance within 6 months and pay the wife $50,000. If he failed to refinance, the wife was to get title to the home.

The husband moved out and was unable to refinance. He offered the home to the wife but she refused. Instead, she allowed the husband additional time to pay her the $50,000. Later, the parties went to court over the issue and the Judge held that the wife had made an unauthorized change to the agreement and she could not therefore hold the husband in contempt. The Chancellor ordered the house deeded to the wife.