The bill would enact what is known as “loser pays” litigation. That means that if you sue me, and I win, you pay all my attorney bills and expenses and all of yours.

This, in itself, doesn’t sound bad at first, until you realize that while it may keep a lot of frivolous lawsuits from being filed, it will also keep a lot of good ones where the person injured is too scared to file suit on the chance they may lose and have to pay the other side’s bills. But wait, it gets even worse.

The bill also has a provision that says that if the plaintiff’s lawyer charges a set fee or hourly fee and the plaintiff loses, then the plaintiff doesn’t have to pay the winning side’s bills.  Ok, what’s so bad about that? In personal injury cases, most plaintiff’s lawyers charge on a contingency basis. They don’t get paid unless their client wins, and then they get a portion of any recovery. This means the people who don’t have to pay under this bill are the people (and corporations) that can afford to pay their lawyers as much as it takes to win. In short, it is really stacking the deck against the common man.

I don’t think this will have much affect in family law, since most clients, regardless of which side they’re on, pay hourly or fixed fees to the attorneys. The only situation I can think where it would affect family law is in a contempt case where the attorney is willing to take the case on the chance that his fees will be paid by the  person in contempt.

You can find much more on this bill at the MS Litigation Review by Phillip Thomas.

Image Credit: Mushroom and Rooster

I’m not going to examine the moral or theological aspects of Mr. Robertson’s statement, but legally, could you get a divorce from someone with Alzheimer’s?

It may be surprising, but you can get an irreconcilable differences divorce from someone with Alzheimer’s Disease. As you may know, that requires both spouses to agree to end the marriage. How can the court be sure a person with that condition has the capacity to agree? First, the person with the disease will probably need a guardian or conservator to be appointed. Then, they will also need a guardian ad litem. Assuming they are both good with it, the divorce will probably go through.

What about a contested divorce? Could Alzheimer’s be considered “incurable insanity,” one of the grounds for divorce in Mississippi? I doubt it. First, the statute requires the insane spouse to be confined to an institution for treatment for at least 3 years. I doubt a long-term care facility would qualify as an “institution.”

Second, two physicians must find the defendant insane. I don’t think you could get a doctor to say that a patient with that debilitating condition was insane.

For my final reason why I don’t think such a quest would prevail, you have to look outside the divorce statute. Mississippi recognizes a method to have a person involuntarily committed if they, due to mental health issues, are a danger to themselves or others. However, that statute specifically excludes “infirmities of old age.” I would imagine that Alzheimer’s qualifies as such an infirmity.

Even if Alzheimer’s was a basis for divorce, the defendant would still need a guardian ad litem. Even then, could the defendant contribute to their defense at all?

As the baby boomer generation grows older, chances are that we’ll see more divorce because of Alzheimer’s.That said, I don’t think there needs to be a new basis for divorce added. The procedural safeguards are already in place in an irreconcilable differences divorce.

Do you think Alzheimer’s is a justification for divorce? Let me know in the comments.

(Photo credit: By iluvrhinestones from seattle, oceania, upload by Herrick (rampant) [CC-BY-SA-2.0 (www.creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons)

While I have not had time to read the opinion yet, I have read some summaries, and it has the potential to be a game-changer where one parent is suing another for failure to pay child support.

In a 5-4 decision, the high court found that Turner’s due process rights had been violated. Specifically, the court three problems:

• The trial court never told Turner that his ability to pay was the crucial question at the contempt hearing;
• Neither the trial court nor its employees provided Turner with a form for his financial declaration; and
• The trial court never even officially determined whether Turner had the ability to pay the child support he owed.

So, does this mean you have the right to counsel at a contempt hearing where jail time is a possibility? Not necessarily. The court’s opinion stated alternative methods could be used to ensure due process. I do not know if the opinion mentioned what those “alternative methods” could be.

This could have serious ramifications, especially in a poor state like Mississippi. Most counties in the state don’t have an established public defender’s office for criminal cases. If something like that has to be created for civil contempt hearings, where will the money come from?

Update:

Another summary I have read indicates that an attorney will not need to be appointed where four conditions are met:

(1)  notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding;

(2)  the use of a form (or the equivalent) to elicit relevant financial information from him;

(3)  an opportunity at the hearing for him to respond to statements and questions about his financial status;

(4)  an express finding by the court that the defendant has the ability to pay

Usually, these are women in a situation where they would probably be able to get a divorce for habitual inhuman treatment. These women usually can’t get a divorce because a fault-based grounds requires corroborating evidence, and usually, the abusive spouse is smart enough to not do that around witnesses.

This post, by Judge Primeux of the 12th Chancery Court District is an excellent review of the requirement for corroboration in a fault-based divorce. Here are Judge Primeaux’s three points to remember:

Recently, the Mississippi Legislature had the opportunity to add a new basis for divorce that would have helped women in that situation. The bill, which was defeated 81-39, would have allowed a separated spouse to sue for divorce after five years of separation. The bill was designed to help abused women who fled their homes. Apparently, some of the legislators didn’t understand the bill. One legislator is quoted as having stated that you don’t get tired of looking at each other after three or five years.

Currently, if an abused spouse flees the marital home, they have no ground for divorce (assuming there are no witnesses to the abuse).

Not having seen the text of the bill, I can’t comment on it. I don’t want to make it too easy to divorce, but if the legislators saw what I see every week, they would probably vote differently.

photo credit: Linn Pernille Photography