Monthly Archives: March 2012

Why Didn’t My Attorney go all Al Pacino on the Judge?

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Especially when Chancery Judges have days they hear motions and temporary matters, you can hear lots of chatter outside or in the hallways about how mean and cruel a certain judge is. How he/she is not being fair to them. They can’t believe their attorney is not jumping up and down going all Al Pacino on this grave injustice. Obviously the judge is sexually attracted to their spouse or spouses’ attorney. And my personal favorite – the judge has been paid off (even if their soon-to-be-ex is broke). Obviously, there is no way they can get a fair trial now, even though this was just a temporary hearing that lasted 15 minutes. This judge has got to go.

Most attorneys don’t mind asking a judge for a recusal if there is a valid reason. Usually, the request is not necessary, as the judge will do a voluntarily recusal on their own motion. But what if there is no valid reason? What if you just don’t like the judge? Can you get a new one? Not likely. Chancery judges are usually assigned to cases at random. They have the case until it is concluded. Getting mad at your lawyer usually will not help if they don’t feel your doubts about the judge rise to the level of asking for a recusal. Long after your case is over; your lawyer will have other cases in front of this judge.

Being a Chancery Judge would have to rank as one of the hardest jobs I can imagine. Making decisions that affect children and their families must be a heavy burden. I’m sure sometimes the decision is obvious, but I also know at times there is no “good” option, only the lesser of two bad ones. That would keep me up at night. Do they make mistakes? Sure, we are all human and mistakes happen, but I can’t help but believe, especially when children are involved, that a Chancery Judge makes the best decision they can based on the facts presented.

Pro Father’s Rights or Pro Mother’s Rights?

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I’m often asked if I am pro father’s rights or pro mother’s rights.  I say I’m simply pro child.  Throughout the years, I have met many wonderful parents and a few I would not even let babysit my cat (she is completely self-sufficient anyway).  Some people are just naturally better at parenting than others, regardless of sex.  That does not mean the other parent loves the child any less.  Usually, it just means that one parent is more willing and able to perform the parenting duties and the other parent just gets out-of-the-way.

But oh my how this can change once a custody case is going.   Suddenly, the previously unknown parent is showing up everywhere.  They want to go to every doctor visit, teacher conference, boy/girl scout meeting, dance/piano/karate/pottery lesion, sporting event, field trip; you name the event and there they are.  They want to be included on every decision, no matter how trivial.  Depending on the age of the child, their reaction can be anywhere from ecstatic about the extra attention to absolute anger with the constant interference.

If you find yourself involved in a custody case, do your children some big favors.  Try to keep things as normal as possible.  Try your very best not to interfere with the routines of the children.  Don’t talk bad about the other parent in front of your children and don’t undermine his/her parental authority.  Children will by nature play one parent against the other.  They did this before the break-up and they will continue to do so.  Don’t make it easy for them.  One parent should not be the “fun” parent and the other the “discipline” parent.  Calm and steady makes children feel safe and loved.  At this critical time, that is what they will need, because if you think this is hard on you, it’s even harder on them.

So remember, be pro child.  Take the high road, even if the other parent is not.  Try your best to make the right choices, not just the easy ones.  And don’t forget, the successful child custody case starts long before the case is filed, by being an active and involved parent.

Upcoming Pro Se, Pro Bono/Legal Clinic Events

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Upcoming Events:

MVLP & UM Law School Partners To Offer: “It Starts With the Basics” Family Law CLE/Legal Clinic
www.probono.net/ms/calendar/event.417236
Thursday, April 5, 2012
Time: 12:00 PM – 5:00 PM

Location:
University of Mississippi School of Law
481 Coliseum Drive
University, Mississippi

By: University of Mississippi School of Law, MS Volunteer Lawyers Project (MVLP)

MVLP FREE CLE “Family Law Basics” and a Legal Clinic “Aid for the People”, in McComb
www.probono.net/ms/calendar/event.417240

Wednesday, April 11, 2012
Time: 12:30 PM – 4:30 PM

Location:
Pike-Amite-Walthall Library
1022 Virginia Avenue
McComb, Mississippi

By: MS Volunteer Lawyers Project (MVLP)

MVLP and Washington County Chancery Court Pro Se Divorce Legal Clinic-Greenville, MS
www.probono.net/ms/calendar/event.417242

Wednesday, June 20, 2012
Time: 9:00 AM – 2:00 PM

Location:
Washington County Chancery Court
900 Washington Avenue
Greenville, MS

By: Washington County Chancery Court, MS Volunteer Lawyers Project (MVLP)

How Can I Get a Pro Bono (Free) Lawyer for my Divorce?

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Generally speaking, you will need to qualify to have a lawyer take your case. In Mississippi, lawyers are required to do a certain amount of pro bono hours or make a contribution to a fund that helps indigent litigants. Most attorneys do not just pick a client at random for their pro bono hours. Most will work through an organization like the Mississippi Volunteer Lawyers Project (MVLP) or a local shelter that will track and verify that the attorney did provide pro bono services.

If you are a victim of domestic violence, a local shelter may be able to assist you with an attorney. If you do not know where or how to contact your local shelter, place a call your local police or sheriff’s department and ask them where they refer victims of domestic violence.

Here are a few resources you may want to contact:

The Mississippi Volunteer Lawyers Project (MVLP)
PHONE: (601) 960-9577
TOLL FREE: 1-800-682-0047
www.mvlp.net

North Mississippi Rural Legal Services (NMRLS)
www.nmrls.com

Administrative Office
5 County Road 1014
P. O. Box 767
Oxford, Mississippi 38655
PHONE: (662)234-8731
FAX: (662)236-3263
TOLL FREE: 1-800-898-8731

Clarksdale Office
526D Choctaw Street
P. O. Box 1107
Clarksdale, Mississippi 38614
PHONE: (662) 627-4184
FAX: (662)624-4009
TOLL FREE: 1-800-388-3163

The Clarksdale office serves the following counties: Bolivar, Coahoma, Quitman, Tallahatchie and Tunica Counties.

Greenville Office
1024 Washington Avenue, Suite 101
P. O. Box 858
Greenville, Mississippi 38701
PHONE: (662) 335-8203
FAX: (662) 335-7500
TOLL FREE: 1-800-545-1909

The Greenville office serves the following counties: Humphries, Issaquena, Leflore, Sharkey, Sunflower and Washington Counties.

Oxford Office
5 County Road 1014
P. O. Box 928
Oxford, Mississippi 38655
PHONE: (662) 234-2918
FAX: (662) 234-2965
TOLL FREE: 1-800-559-5074

The Oxford office serves the following counties: Alcorn, Benton, Calhoun, DeSoto, Grenada, Lafayette, Marshall, Panola, Prentiss, Pontotoc, Tate, Tippah, Tishomingo, Union, and Yalobusha Counties.

West Point Office
313 Highway 45 Alternate South
P. O. Box 277
West Point, Mississippi 39773
PHONE: (662) 494-6122
FAX: (662) 494-0670
TOLL FREE: 1-800-898-6122

The West Point office serves the following counties: Attala, Carroll, Clay, Chickasaw, Choctaw, Itawamba, Lee, Lowndes, Monroe, Montgomery, Oktibbeha, Webster and Winston Counties.

The Mississippi Center for Legal Services Corporation (MCLSC)
www.mclsc.com

Administrative and Hattiesburg Offices
111 East front Street (39401)
Post Office Box 1728
Hattiesburg, Mississippi 39403-1728
PHONE: (601) 545-2950
FAX: (601) 545-2935
TOLL FREE: 1-800-773-1737

Gulfport Office and Fair Housing Center
520 East Pass Road Suite J
Gulfport, Mississippi 39507
PHONE: (228) 896-9148
FAX: (228) 896-9196
TOLL FREE: 1-800-498-1804

Jackson and State initiatives Office
(Includes Telephone Intake Unit)
414 South State Street
Suite 300 (39201)
Post Office Box 951
Jackson, Mississippi 39205-0951
PHONE: (601) 948-6752
FAX: (601) 948-6759
TOLL FREE: 1-800-959-6752
TOLL FREE: 1-800-498-1804

McComb Office
221 Main Street (39648)
Post Office Box 575
McComb, Mississippi 39649-0575
PHONE: (601) 684-0578
FAX: (601) 684-0575
TOLL FREE: 1-800-498-1804

Meridian Office
2305 Fifth Street
2nd Floor (39302)
Post Office Box 1931
Meridian, Mississippi 39302-1931
PHONE: (601) 693-5470
FAX: (601) 693-5473
TOLL FREE: 1-800-498-1804

The Mississippi Center for Legal Services Corporation serves the following 43 counties: Adams, Amite, Claiborne, Clarke, Copiah, Covington, Forrest, Franklin, George, Greene, Hancock, Harrison, Hinds, Holmes, Jackson, Jasper, Jefferson, Jefferson Davis, Jones, Kemper, Lamar, Lauderdale, Lawrence, Leake, Lincoln, Madison, Marion, Neshoba, Newton, Noxubee, Pearl, River, Perry, Pike, Rankin, Scott, Simpson, Smith, Stone, Walthall, Wayne, Wilkinson, and Yazoo County.

The University of Mississippi School of Law Civil Legal Clinic
law.olemiss.edu/CLC/
PHONE: (662) 915-7429

Why is my Internet Divorce not working?

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I have seen many Pro Se litigants shocked and alarmed that their divorce was denied by a Judge or Family Master. “What’s wrong?” they will say, “I paid a lot of money for those papers.” The papers are generally not very specific and not even written for a Mississippi divorce. They have blanks and check boxes and many people filling them out don’t understand what it means or think it does not apply to their situation, so they just don’t put anything there. Judges don’t like blank spaces or check boxes not properly filled out because someone could go back and change the entire meaning of the order.

Even worse, some have filed papers and think that’s all that needs to be done. They are shocked to find out later that somehow they are not divorced. They have moved on with their lives; some have even married again.

What most people don’t realize is that the paperwork is the easy part. They could just go down to the courthouse and find a divorce (all public record) with similar circumstances, change the names, dates, etc., and save hundreds of dollars. But what then? Many will ask the clerk for help, but the clerks know that only a lawyer can give legal advice. The rules and procedures involved are found in the Mississippi Rules of Civil Procedure.  Also, depending on how complex your case is, you might also need the Mississippi Rules of Evidence. If you don’t understand them, you may want to call an attorney. Many will even take payment plans, if you can’t pay it all up front.

If you do go it alone, remember, a judge must hold you to the standard they would an attorney. A mistake in your filings or in your testimony can end your case rather quickly. And if you say something like, “Pursuant to Rule 81(d)” you had better know what you are talking about, because you will likely be asked.

Junkyard Dog Lawyers and a Bugatti Veyron

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I want a lawyer that’s a junkyard dog!  I want someone that’s going to be aggressive!  I want someone to fight! fight! fight!  I don’t know how many times I have heard these words.  This is very typical in family law cases.  For many people seeking divorce, this is the first time they have needed an attorney and their emotions are out of control.  Maybe that’s why they are looking for the most emotionally unstable lawyer they can find.

Since seeing the Bugatti Veyron on the BBC show Top Gear years ago, I have thought it would be the perfect car for me.  While it’s true that I have a family (so it may not be all that practical in that respect) and I couldn’t afford the insurance on it or even the tires for that matter, I still need it.  Or do I?  Since I’m not a race car driver and I’m totally unfamiliar with a car of such performance, the chances of me wrapping it around a pole and killing myself are probably pretty good.  The same could be said of a junkyard lawyer in your divorce case.  Will it cost a lot of money?  Oh yeah!  About 90% of divorce cases settle before going to trial but that’s not true for the junkyard dog attorney.  Because he/she is obstinate, there is not much need in negotiation.  The junkyard dog attorney will want to bury the other side in paperwork and have frivolous motions and hearings.  Naturally, even if the other lawyer is not of the junkyard dog variety, he/she must retaliate and you have a very expensive all out legal battle on your hands.  And while the junkyard dog might not kill you like the Veyron, you might wish you were dead before it’s over.

Judges don’t care much for the junkyard dog.  I once saw one of these attorneys objecting every few seconds of a witness’s testimony.  It was turning into a shouting match with the junkyard dog saying “objection” and the judge saying “overruled”.  If you are thinking this is not productive, you are correct.  If you have the junkyard dog attorney, I’m not saying you are going to lose your case.  In fact some of these attorneys are great litigators (lots of practice).  The areas where the junkyard dog can really hurt you are the discretionary decisions that could go either way.  Should the judge go with litigant A or with litigant B that hired Mr./Ms. Bag of Flees?  I’m thinking the judge goes with A.

It’s just my opinion, but I think you need a lawyer that works well with others and has mastered the art of negotiation.  Your attorney will still need to make preparations for trial, but hopefully, it will not be necessary, unless of course, a trial is your real goal and not a settlement you can both live with.  Leave the junkyard dog where he/she belongs, in the junkyard.  Hopefully you will get everything you need in your case and not just what you want.

If you still want to hire a junkyard dog, let me know.  I know a lot of them.  And if you happen to own a  Bugatti Veyron, just let me drive it around the block a few times.  I almost guarantee nothing will happen to it.

Is March Divorce Month?

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Interesting article in the Huffington Post that says March is divorce month.  This comes as no surprise to me, I just couldn’t believe that nobody said anything about tax refunds.  If someone’s marriage is in trouble late in the year, they usually try to hold it together though the holidays, especially if they have children, but as soon as January comes they are planning the escape.  They are looking for that tax refund (mid February – late March) to pay a lawyer and help with the extra expenses.

What is a QDRO?

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A few definitions:

  • A Qualified Domestic Relation Order (QDRO) – is a judgment or order that is made pursuant to state domestic laws and recognizes the existence of an alternate payee’s right to receive, all or a portion of the benefits payable with respect to a participant under a pension or retirement plan.
  • Participant – The person that the plan belongs to is the participant.
  • Alternate Payee – Usually the former spouse (but could also be a child or other dependent) of the participant that is entitled to receive all or a portion of proceeds under the plan.  For purposes of the QDRO provisions, an alternate payee cannot be anyone other than a spouse, former spouse, child, or other dependent of a participant.

What brought about the creation of this document?

  • The QDRO was created by the Retirement Equity Act of 1984 as an amendment to the anti-alienation provisions of the Employee Retirement Income Security Act of 1974 (ERISA), that protected retirement plan assets from creditors.

Who needs a QDRO?

  • If you are awarded certain sums of money or a percentage of a retirement or pension plan and you want to collect, you will need a QDRO.
  • Your divorce decree alone is not enough.

Who is responsible to provide this document to the court?

  • Attorney – Generally the obligated attorney is the attorney representing the alternate payee.
  • Pro Se – If you will be receiving the funds (alternate payee) this is generally your responsibility.

Who must approve a QDRO?

  • The plan administrator; and,
  • The judge in your divorce case

When is the QDRO done?

  • It can be started before a divorce is final, but cannot be completed until after the final decree.  The sooner after the final decree the better.

Special thanks to MEM for her generous contribution.

Lafayette County Grand Jury Indites Man for Bigamy

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A Lafayette County grand jury indicted 55 year old David Mark Durham with bigamy.  A complaint was filed by Mr. Durham’s wife,  Diane Durham, now Diane McDonald, after she discovered Mr. Durham had married Lori L. Durham, who has recently filed for an annulment.  Mr. Durham faces up to ten years in prison if convicted.

You can check out news coverage on this story here and here.