Mississippi Divorce Law Update

Today an article came to our attention, and we thought you mind find it interesting, too.  Jack Elliot Jr. of the AP wrote “Analysis: House declines to expand divorce laws,” an article discussing recent activity in the Mississippi House of Representatives regarding proposed divorce legislation.  The article tells us that thirty years ago Mississippi enacted “no-fault,” or uncontested, divorces.  More recently, State Rep. Mark DuVall (D-Mantachie) sought to add compulsive gambling as a 13th ground for divorce last week.  The bill ultimately failed with 40 votes for and 74 against.  Other bills dealing with child custody issues and premarital agreements have been filed this year, and a few others have proposed adding irreconcilable differences (a frequently-used ground for divorce in uncontested divorces in Tennessee) as a 13th ground, but the irreconcilable differences failed as well.  Opposition to these bills has expressed the desire to keep the state from making divorce any easier.  What do you think – do additional grounds for divorce make getting a divorce easier?  Do you think compulsive gambling or irreconcilable differences are reasonable grounds for divorce?

Annulments…After Death?

Today’s post covers a little of a few legal worlds, everything from marriage to divorce to probate. We had a situation crop up recently that had never occurred to us and inspired a little digging, with surprising results. A client’s father passed away several years ago and he wished to have his father’s marriage declared void or annulled, as it was affecting his inheritance. Sounds like a case of a simple desire for more money, right? Well, it gets more interesting. His father, it turns out, was married twice – and was never divorced the first time. This renders the second marriage void and thus any rights of the second wife to inheritance (barring any mention of her in a will). The son does in fact have the ability to file a bill for annulment, as a void marriage can be attacked by annulment after the death of a party. Evidence would be required to prove the dual marriage – public records confirmation as well as verbal testimony on the part of the first and second wives would be necessary. It’s definitely not an everyday situation, but we found it really interesting that Tennessee law gives you the right to pursue an annulment post-death!

Common Law Marriages – Am I In One?

Angelina and Brad. Goldie and Kurt. It’s becoming more and more common for couples (and parents) to live together for extended periods of time – decades, even – and remain unmarried. We’ve had some clients wondering if, after they have lived with a significant other for a long time, they have what is called a “common law” marriage. Well, if you live in our tri-state area of Arkansas, Tennessee, or Mississippi, you can live with each other for seventy years and still not be considered part of a common law marriage – none of the three states recognizes the practice of common law marriages. In fact, there are very few – less than fifteen – states that recognize them in any form.

In case you are moving to one of these states, what does it take to be recognized as being a spouse in a common law marriage? You must have lived together for a significant period of time, act for all intents and purposes as a married couple (using the same last name, titles of “husband” and “wife”, and filing a joint tax return), and you must intend to be married. Once your common law marriage exists, you and your spouse are treated legally as a married couple. You must even go through a legal divorce should you wish to end your marriage. And if you leave one of the few states that still recognize common law marriage, other states will continue to recognize you as married, but national institutions (like the Social Security Administration) may not unless you stay in a state that continues to recognize them as valid.

Mother’s don’t automatically get custody of the children in a divorce?

The factors that go into determining child custody in a divorce are many, and are not cut and dry.  Laws in Tennessee and Mississippi provide several considerations for judges to reflect on before appointing one parent or the other as the primary residential parent. One factor is made explicitly irrelevant though: both states refuse to allow the gender of the parent to affect whether or not they are named the primary residential parent:

Tennessee Law States:

“It is the legislative intent that the gender of the party seeking to be the primary residential parent shall not give rise to a presumption of parental fitness or cause a presumption in favor of or against such party.”  -  Tennessee Code § 36-6-412

Mississippi Law Says:

“There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.”  -  Mississippi Code § 93-5-24 

We have found this especially difficult to get parents to believe, on both sides – as a mother, you are not guaranteed custody simply for being female, and as a father, you are not automatically denied custody simply for being a male.

Do not make assumptions without knowing the laws regarding your case. Contact a good Memphis divorce lawyer or Memphis child custody lawyer today to learn more about the factors that are relevant when determining child custody!

Do Non-Custodial Parents have rights in Tennessee or Mississippi?

We have heard from many of our clients and friends the myth that noncustodial parents really have no rights at all when it comes to information about their children.

Fortunately, that is just not true. Both Mississippi and Tennessee law state that noncustodial parents have every right to important records about their children, including mental, dental, and school information.

Tennessee gets really specific, stating that noncustodial parents have the right to know their child’s teachers, access to report cards, attendance records, and class schedules. This is all hinged on the fact that the noncustodial parent’s rights have not been legally terminated due to adoption (of the child or children by someone else) or by a termination of parental rights proceeding in which they gave up their rights.

So don’t let a myth become your fact – you have every right as a noncustodial parent to know about your child’s medical and school situation!

New Tennessee law looks at paternity issues

On the legislative news front, the Tennessee House of Representatives today postponed voting on a child support bill that has been much debated by sending it back to the judiciary committee.  The proposed bill would allow a person that is found to not be the father of a child to recover child support payments he had already paid out from the actual biological father. 

The bill is sponsored by Rep. Stacey Campfield (R-Knoxville), and is being debated over the potential psychological impact such actions may have on the children involved.  Democrat Rep. Sherry Jones argues that the bill is “terrible for children” in its ability to tear kids away from the men they’ve known as fathers.  You can follow the bill’s journey by clicking here. 

We can understand both sides of this contested bill – while it must be frustrating to have made child support payments only to discover you are not the biological father of a child, it can be equally emotionally difficult on the child’s behalf to come to the same realization and deal with the consequences of that, including a lengthy legal process that can make it seem to be all about the money to the child. 

The only recommendation we have for this kind of situation is to be sure of paternity before a divorce is final – this way all parties are clear from the get-go, support is being paid from the correct source, and the children are able to come to terms with any changes at an already changeful time in their lives.

Memphis domestic violence victims – You need help!

Last week Michael Lollar of the Commercial Appeal wrote an article highlighting the growth of domestic violence cases in Memphis over the past year, stressing that out of 4,001 domestic violence cases last year there were 35 deaths and a four percent increase in repeat offenders.  In our previous post, we discussed the possibilities surrounding divorcing a jailed spouse, and we want you to know that the same options exist for those who are the victims of domestic violence.Tennessee grounds for divorce include two separate references to cases of abuse: “ The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct,” and “The husband or wife has offered such indignities to the spouse’s person as to render the spouse’s position intolerable, and thereby forced the spouse to withdraw.”  As we mentioned in the last post, you can seek either a “no fault” divorce or, should the matter become contested, you can file for divorce on one of the above grounds.  Mississippi also provides for victims of domestic violence, citing as grounds for divorce: “Habitual cruel and inhuman treatment.”

There are many resources both locally and nationwide to reach out to should you become the victim of domestic abuse.  The National Domestic Violence Hotline, at 1-800-356-6767 or 1-800-799-7233, is an excellent resource, as is the local CAAP Domestic Violence Program Hotline, at 901-272-2221.

If you’re the victim of domestic violence DO NOT stay in the relationship. No matter what you may hope, things rarely turn for the better. Seek counseling today!

The 3 Different Types of Memphis Divorce Lawyers

My friend, and fellow divorce lawyer Michael Sherman who practices law in Alabama (his blog can be found at www.alabamafamilylawblog.com), had an interesting post a few days ago concerning the different types of lawyers you see in family law. I’ve taken his idea and decided to post about these types of divorce lawyers on the Memphis Divorce blog here.

The first type of divorce lawyer you have in Memphis is the Lamb. The Lamb is the kind of lawyer who doesn’t want to offend anyone or rock the boat too hard. He or she will usually bend over backwards to make sure that confrontation is avoided at all costs. Unfortunately avoiding confrontation “at all costs” usually means that his or her client gives up more than they should in their divorce or custody case. The Lamb will usually tell there clients to sign off on the first offer they see. He or she also will try to stay as far away from the courtroom as possible.

 The next type of divorce attorney is the Pit Bull. We’ve all heard about these divorce lawyers. They’re the nasty and vicious sorts who will do anything to win a case. They often times don’t worry about what’s best for the parties, but instead only want to devastate the opposition.

The Pit Bull is the type of Memphis divorce lawyer who can’t stand to settle a case. Instead they’ll do anything and everything to avoid settlement and to go to court. When people say they want a mean SOB to represent them this is the guy or gal who they’re talking about. The Pit Bull comes with a cost though, both figuratively and literally.

Unfortunately being a Pit Bull is not best for their clients. If you know anything about Pit Bulls you know that they are great at causing damage to whoever their up againt but this usually comes at a great loss to their own health. They often go so far in trying to hurt others that they cause irreparable damage to themselves. The Pit Bull attorney’s attacks usually end up hurting their own clients by racking up enormous client fees and getting nowhere in negotiations. Usually the Pit Bull will spend tens of thousands of their clients dollars only to end up with the same outcome that would have been had if they had been willing to work cordially with their opposing counsel.

The Pit Bull is aggressive just for the sake of being aggressive and not for the benefit of actually helping their client.

Often people going through divorce will think they need an aggressive lawyer to represent them in their divorce.  They are wrong.  What they need is a lawyer who is assertive.  There is a difference.  It is the difference between the Pit Bull and the third type of Memphis divorce lawyer, the Fox.

Our third type of lawyer, The Fox is wise and cunning.  He sees the big picture.  The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients.  He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests.  He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge.  Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.

When choosing a divorce lawyer, you should avoid the lamb and the pit bull at all costs.  Instead, find yourself a fox.

Divorce Proofing Your Relationship – The “Three P’s”

As divorce lawyers serving Memphis and North Mississippi, unfortunately we see relationships end for many different reasons. Often times the saddest part about this is that these divorces could have been avoided if the couples would have taken part in one of the “Three P’s”.

Dawn Elaine Bowie over at the Maryland Father’s Rights Blog had an interesting post addressing these issues and the “Three P’s”, and I’m including her post below.

“The right to marry is a fundamental human right protected by the United States Constitution and the constitutions of most states. With divorce rates at between 50% and 60%, and the human misery I routinely see as part of my daily work, it’s very easy to be seduced by the idea that if we could just force people to use some common sense we could reduce some of the misery.

On the one hand, I wish it was possible to require folks to go to premarital counseling before they married. Or pass a test before they could procreate. But not only does that kind of government intervention run afoul of the Constitution, it isn’t realistic. Human behavior can’t be legislated in, or out, of existence.

There is no foolproof way to keep a second, third or subsequent marriage from failing. But there are real, common-sense ways to increase your odds for success.

If you need help with a premarital agreement, and you live in Maryland, let me know. I’d far rather get to know you that way, than through representing you in divorce litigation.

Remember the Three P’s:

• Patience – Take plenty of time to get to know your partner before you seal the deal.
• Prenuptial Agreement – Get one, preferably one that covers more than just money and property.
• Premarital Counseling – Spend a little money now and increase your chances of avoiding the big money and the bigger heartache later!”

 The original post can be found on the Maryland Father’s Rights blog here.

Remember, it’s always best to try to make the marriage work. However, for many people this just simply isn’t an option. If you and your spouse can no longer stay married and need a divorce, either in Memphis or North Mississippi, call the us at 901-754-1340 or email us at contact@lawferrell.com and we’d be happy to help guide you.

James Ferrell honored in Memphis Magazine as a “Five Star Attorney”

We are pleased to announce that our firms principal attorney, James Ferrell, has been selected as a Five Star: Best in Client Satisfaction Wealth Manager in the Attorney Section.

This is a great honor for the firm and for Mr. Ferrell and he would like to thank all of his clients and Memphis Magazine for this great honor.

The full list of selected advisors will be published in an upcoming fall issue of Memphis Magazine. Look for Mr. Ferrell’s listings under the Lawyer/Attorney section.

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