I get that question fairly often. The most recent was a couple of weeks ago when a young college student came into my office in Hattiesburg. I told him what you probably expect me to say, “Yes, you need a lawyer.” Now, I know there’s some of you who will say that my answer is motivated solely by money, but that’s not true. It’s based on my own experience. (I’m using divorce as an example here, but this advice is true regardless of the legal issues faced)
Two days after graduating from law school, my (then) wife told me that she wanted a divorce. Being someone who not only had just graduated law school, but who, in his last year of law school, had taken Domestic Relations, I felt I was smart enough to handle this myself. And you know what, I was smart enough. The problem was, I was emotionally involved in the case.
As I have posted before, when you’re going through a divorce, you need the advice of someone who’s not emotionally connected with your case. I made a lot of stupid mistakes because I was hoping for a reconciliation. I gave in to demands I shouldn’t have.
For your average person, there’s another potential “trap.” The legal system can be complex, and if you make a mistake it can cost you literally and figuratively. For example, in Mississippi, the venue (where you file the case) of a divorce is also jurisdictional. If you file the divorce in the wrong county, the court may dismiss the case, and you would have to file again in the correct county. (And no, the court shouldn’t tell you where to file because that’s giving legal advice). That means you have to pay another filing fee, increasing the cost of the divorce.
To wrap this up, I want to remind you of two saying. The first is that the person who represents himself in court has a fool for a client. The second is, a fool and his money are soon parted. Represent yourself, and it may cost you.
Most people understand that if both they and their spouse want a divorce, there is almost nothing that could keep a court from granting that divorce. What happens, though, if you and your spouse don’t agree on the divorce?
As with many legal issues, the answer begins with, “that depends.” The Mississippi Code recognizes 12 causes for a divorce:
- Natural impotency;
- Being sentenced to any penitentiary, and not being pardoned before arriving;
- Willful, continued, and obstinate desertion for at least 1 year;
- Habitual drunkenness;
- Habitual and excessive use of illegal drugs;
- Habitual cruel and inhuman treatment;
- Mental illness or mental retardation at the time of marriage;
- Pregnancy by another, if, at the time of marriage, the husband did not know of the pregnancy;
- Being related to one another by a degree of kindred that makes such a marriage against the law; and
- Incurable mental illness.
So, if you can meet one of these grounds, you would be able to file for a divorce. You would have to take your spouse to court and prove to the judge the basis for you wanting a divorce.
Hattiesburg is home to Camp Shelby. As such, lawyers here in town often have the opportunity to represent military personnel or their spouses in a divorce. I have previously written about military divorce, but focused on the 20-20-20 Rule. Now I’d like to look more broadly at military retirement benefits in a divorce.
A federal law, the Uniformed Services Former Spouses Protection Act, permits states to consider military retirement as marital property, and, indeed, Mississippi does so. The USFSPA allows a state court to have jurisdiction over the retirement benefits only if the servicemember is domiciled or resides there, or consents to the jurisdiction.
It is important to note that even if retirement benefits are awarded to a spouse, that spouse may not be directly paid by the military unless the couple was married for at least ten years of the member’s service. Even then, there is a cap on the benefit that can be received—50% for one spouse, and 65% for all former spouses.
On the other hand, if the couple was married for less than ten years of the member’s term of service, then payment of the benefit must come from the member spouse. While this can lead to more “uncertainty” regarding the payment, there is an upside to this. The 50% cap that is imposed through direct payment does not apply to payments received from the member spouse.
There are other benefits to consider as well, including disability benefits and survivor benefits. Those are topics for another day.
“Adoption by couples of the same gender is prohibited” in Mississippi. Anyone who follows the news knows that this is against the current trend of states allowing such adoptions. The U.S. Court of Appeals for the Fifth Circuit, in February of this year, issues its opinion on a Louisiana case that makes me wonder how much time that Mississippi law has left.
In Adar v. Smith, the court was faced with a situation in which an unmarried male couple adopted a Louisiana infant under New York law. New York allows the adoption of a child by unmarried couples and Louisiana does not. The couple sought to have their names listed as the parents on the birth certificate, as adoptive parents may do, but the Louisiana registrar denied their request, citing Louisiana’s ban on adoption by unmarried couples. The court found that Louisiana had to grant the request because the state had to give the New York adoption decree full faith and credit.
There is a small, but possibly critical difference in the Louisiana law and Mississippi’s statute. The Louisiana prohibition focused on the marital status of the adoptive couple, and Mississippi’s statute focuses on the gender of the couple. Courts have used such a small difference to uphold one law when another similar law has been found unconstitutional.
I’m not really sure if this difference is enough to cause a court’s opinion to differ. You can be sure if the constitutionality of Mississippi’s same-gender prohibition is challeged, Adar will be used in the support the challenger’s argument. Regardless of my personal views on the subject, I think the Mississippi statute’s days are numbered if it is ever challenged.
Please leave your opinions below in the comments.
We live in an age where, if we believe statistics, 50% or more of marriages end in divorce. So why, if it is so common, is there a stigma associated with it?
My guess is that it’s all part of the competitive nature of our society. People no longer are happy to just keep up with the Joneses, they want to do better than the Joneses. That probably extends to our marriages as well.
Even the traditional marriage vows add to the stigma. According to tradition, marriage is “until death do us part.” Instead, it sometimes seems as it’s until something better comes along.
We–or at least I did, after my divorce–feel like a failure when, after trying your hardest to make it work, one of you finally has had enough and decides to get a divorce. Looking back on my own experience, and looking at those that I help, I can tell you that you shouldn’t feel like a failure, and you definitely shouldn’t hang your head in shame.
Don’t get me wrong, I’m not saying divorce is something desirable or that should be taken lightly; Heaven knows it’s not. I look at it two ways. First, while no one should tear apart “what God has joined together,” many marriages, if we’re completely honest, were not joined by God. Rather than being the product of careful thought, prayer, and love, the marriage was rushed into by a rush of hormones and warm fuzzy feelings. Second, I have yet to see someone who chose divorce rather than giving their marriage all they could. Sometimes, marriages are too damaged for mere mortals to put them back together.
You’re going to hurt; that’s normal. You’re going to feel afraid and alone; that’s normal, too. But it’s important to realize that you’re not alone, and you’re not a failure.
What do you think? Should there still be a stigma associated with divorce?
Sure, most of my work is divorce, but occasionally, I get to work on something a little cheerier. For example, every now and then, I get to work on one of the happiest events in a person’s life, the adoption of a child.
Adoptions can be open or closed. An open adoption means that the birth parents and the adoptive parents reveal their identities to each other. There is no one model for an open adoption; there are many variations of the degree of openness between the birth parents and the adoptive parent.1
As with everything, there are advantages and disadvantages to an open adoption.
For the birth mother, the advantages include having a sense of control from knowing, interviewing, and picking the adoptive parents; an better ability to deal with the sense of loss that comes from giving up the infant; and the potential to develop a relationship with the child after the adoption. The disadvantages for the birth mom include the potential for disappointment as the reality of the adoptive parent doesn’t meet the “fantasy,” and a feeling of obligation to go through with the adoption when she wants to change her mind.
For the adoptive parents, biggest benefit is the ability to be medically informed, that is, to be familiar with the medical history of the birth mother and perhaps even take part in some of the prenatal care. Other advantages include less anxiety over the birth mother’s intentions (since the adoptive parents are familiar with her) and a feeling of “participation” as you see the birth mother progress through her pregnancy. The birth parents should be aware of the downsides: disappointment if the birth mother later decides she wants less interaction with the child or the adoptive parents, and the necessary of setting boundaries with the birth mother.
Of course, there are advantages and disadvantages for the child as well. In an open adoption, the child receives the benefit of knowing “where did I come from,” and the ability to know his or her family medical history. On the other hand, the openness may result in a difficulty to assimilate into the adoptive family, but this risk is present in a traditional “closed” adoption as well [edited by Tim]. Another problem is the risk of the feeling of rejection should the birth mother later decide she wants to reduce the amount of contact.
I was looking back over some of my old posts, and I was surprised that I had not yet covered non-contested divorces in Mississippi, or as their properly called, “irreconcilable differences” divorces (abbreviated to “ID Divorce”).
Mississippi does not have true no-fault divorce. If you want a divorce without having grounds for the divorce, you and your spouse must agree to end the marriage. You can leave certain issues, such as property division and child custody, for the court to decide, but there can be no disagreement concerning the desire for divorce.
Sometimes, even when there are grounds for the divorce, the divorce papers will be filed on a fault basis, but alternatively seeking an irreconcilable differences divorce. This is done in case the spouse contesting the divorce later changes his/her mind; it’s easier to then dismiss or withdraw the contested grounds and proceed with the ID Divorce.
This week, the Mississippi Court of Appeals heard a case in which this was not done. The judge found that the wife was not entitled to the contested divorce on the basis she sought, but at the conclusion of the trial, the judge told the parties that she could grant them an ID divorce if they could agree.
A few days later, the couple filed a consent to divorce, but there was never a withdrawal of the contested grounds. Despite this mistake, the trial court granted the divorce on the basis of irreconcilable differences.
The husband later filed an appeal contesting the judge’s decision regarding the property division. I bet both parties were surprised when the Court of Appeals came back and essentially said, “You were never divorced, so we can’t decide the issue of property division.”
Don’t worry. Our unhappy couple will still be able to live their separate lives. The Court of Appeals sent the case back to the trial court for the couple to follow the correct procedure.
I wonder if the judge doesn’t change the property settlement if the husband will again appeal? My guess is he will. Can you figure out what makes me say that?
While not yet popular in Mississippi, collaborative law is a process by which the parties (frequently divorcing couples), use a series of meetings to come to a fair and mutually acceptable outcome. To have a collaborative divorce, both spouses (and the lawyers) must sign a participation agreement. The key points of the agreement state:
- The lawyers will not litigate the case. If the process fails, and litigation is the only recourse, the original lawyers must withdraw and the parties must retain new lawyers;
- Neither party will take advantage of mistakes by the other side;
- The parties will freely disclose all pertinent information and will not hide any material facts;
- What is said in the settlement meetings remains confidential;
- All experts will be neutral, and hired jointly by both parties and their children; and
- Everyone will behave courteously and in good faith.
As you can see, this appears much different that what most people think of when they think of a divorce. Many experts consider the first provision, the so-called “disqualification” provision to be the key to collaborative law. By not allowing the original lawyers to litigate the case, it takes away any real or perceived incentive for the lawyers to sabotage negotiations. Instead, it aligns the lawyer’s interests with the client’s.
Collaborative divorce is similar to using mediation in a divorce. However, in mediation, the parties can decide to stop negotiating and proceed to litigation. Additionally, mediation uses a third-party, a mediator, to facilitate negotiations while collaborative law depends on the parties’ attorneys to facilitated.
There are no formal training programs in collaborative law recognized by any of the state bars. However, there are various independent organizations, such as the International Academy of Collaborative Professionals that offer training to professionals who want to learn more about the collaborative law process.
Over the years, a number of prospective clients have asked about how mean a lawyer I can be. I used to tell them that I could be as mean as I needed to be. Now, I prefer to discuss some other, related issues.
1. What is the client’s overall objective in getting (or getting through) the divorce? Is it punishment for perceived wrongs? Is it to end up with adequate resources to be comfortable after divorce? Is it to have primary custody of the kids or to have a way to share time and responsibility for raising the kids? Is it to end up with certain valuable assets? Is it to come out debt free? Or something else? There’s no right or wrong answer. It just helps the lawyer to know what the target is.
2. What kind of relationship does the client want to have with his/her ex-spouse? No relationship, a good one, best friends, neutral relationship or a bad relationship? Again, there’s no right or wrong approach. The attorney just needs to know in order to work out the appropriate strategy.
3. What “mean” actions would the client want to take? Some actions are not permissible because they are illegal or unethical for a lawyer to do, and the client needs to understand that. Some actions are legal and ethical, but could be considered “mean” in some circumstances. Within that limited category, what would the client want?
4. How does the client think “meanness” will advance his/her cause? Some clients don’t realize that being mean to the other side leads to more hostility and less cooperation. Will that help the client meet his/her needs or achieve his/her objectives?
5. Is the client willing to spend the extra money required to be mean? Unfortunately, for the client, “mean” isn’t cheap. The attorney’s fees increase dramatically when the attorney sends out numerous letters complaining or demanding action, files numerous pleadings complaining or requesting actions, sets hearings, conducts numerous depositions, demands voluminous discovery and so on. Also, the “tit for tat” strategy comes into play, meaning that whatever one side does to the other is returned again to the first party. The result: more letters, pleadings, hearings, depositions, discovery, etc. Being mean keeps the attorney busy, but it also increases the cost of divorce for both parties.
Often, the desire to hire a mean lawyer is just the natural reaction to pain,anger or fear the client is experiencing. There are certainly times when an attorney must act aggressively and firmly, but most clients just don’t need or want a really mean lawyer when they learn how that will affect the case and their lives. And many or most clients can’t afford or won’t want to pay for a mean lawyer. Having the discussion about taking the mean approach can really be surprising to the client, but it can lead to planning for a better divorce.
Today, I welcome a friend of mine from the Boston area, Gabriel Cheong, Esq. Gabriel has graciously written a post on how to find the right divorce lawyer for you. Take it away, Gabriel …
Divorce lawyers are not once-size-fits-all. A divorce lawyer that your neighbor liked and used might not be a good fit for you. So how do you find and evaluate a divorce lawyer?
Finding a divorce lawyer is the easy part. First, look at your circle of friends and family for recommendations. If you are too embarrassed to ask or if you don’t like their suggestions, then there are online resources you can use. I would suggest Google (search term: <your city, state> divorce lawyer), Avvo.com and Justia.com. [Tim here; just wanted to note that avvo.com does not yet list attorneys in Mississippi.]
After you have a list of lawyers you want to evaluate, what criteria do you use? I suggest looking at three: Quality, Personality and Price.
You evaluate a lawyer’s quality by first talking with them. Call them up and ask them some relevant questions. What is the focus of your practice? Are you a general practice law firm? Have you handled my type of case before?
Do a Google search on that lawyer and their firm. Browse through their website and hopefully they have a blog you can look through as well. Blogs are a great way to get to know a lawyer because it lets you see how they think and how they write. It also should give you information about your situation.
You’re going to be working with your divorce lawyer for some time so you want one that fits you and your personality. If you’re butting heads with your attorney and trying to get the most from a divorce, you’re fighting two fronts at once.
Generally, you want a divorce lawyer who’s willing to be aggressive but who’s not an aggressive person. You want the lawyer to stand firm but you don’t want them to be unnecessarily aggressive all the time. This is because divorce is mostly about negotiations. An always aggressive person does not generally negotiate well.
Whereas most people look at price first, I would dare to suggest you look at price last. Here’s why.
Hopefully finding a divorce lawyer is a once in a lifetime process. Therefore, do you really want to be bargain shopping for the cheapest lawyer you can find? Probably not. You want a lawyer who satisfies the first two criteria.
Price is of course an issue. If you cannot afford a $300/hr attorney, then you can’t afford them. However, if it’s a decision between a $200/hr attorney and a $250/hr attorney, then I would seriously ignore the price and look carefully at the first two criteria. Also, ask if the lawyer is willing to do fixed price billing or value billing.
Gabriel Cheong, Esq. is the owner of Infinity Law Group located in the Boston metro area of Massachusetts. He practices in the areas of Family Law and Estate Planning. For more information about Gabriel and his practice, please visit the firm’s website http://www.infinlaw.com or his blog at http://gabrielcheonglaw.com.