If you want to get technical, they are really affirmative defenses. I describe an affirmative defense as an “yes, but” defense. By that, I mean that the person raising the defense pretty much admits that the allegations made by the spouse seeking the divorce are true, but there are some more facts that constitute the defense.

Condonation

The first of the defenses is condonation. As you can guess from it’s name, this occurs when the offended spouse either gave permission for the behavior or has forgiven the other for the behavior.  For example, I have had clients who have said they had extramarital relations with their spouse’s permission. In such a case, the spouse would have condoned the behavior by the spouse engaged in the relationship, and could not use adultery as a basis to end the marriage.

Ratification

If you wait too long to sue for divorce, your spouse may be able to claim that you have ratified their bad behavior. This is very similar to condonation, but there does not have to be any proof that the offended spouse has forgiven the offending spouse. All that is required is that the offended spouse knew of the offensive behavior, and did nothing about it for a sufficient period of time.

What is a sufficient period of time? There’s no clear–cut answer to that; it all depends on the facts. Certainly, if you are seeking a divorce on the basis of chronic drunkenness, and you have known about your spouse’s drunkenness for ten years, but never did anything about it, I would claim that the drunkenness has been ratified by you staying.

This may be another example of how the laws in Mississippi are prejudicial against the poor and women. In a situation like the one I have described, it may be that the offended spouse (often the wife) has no other place to go or does not have independent funds sufficient to leave her husband. I, for one, would say that such situation is not a true ratification, but, rather, was done out of duress.

Reformation

The defense of reformation is sometimes called repentance. This is typically used against grounds related to alcohol or substance abuse. If the using spouse has reformed their ways and given up the drink or the drug, then the grounds no longer exist.

Collusion

Just a quick word on collusion. Unlike the others, this is a true defense, and not an affirmative defense. Before irreconcilable differences existed as a basis for divorce in Mississippi, Spouses would often agree to make up grounds so they could end the marriage. When one spouse then changed their mind, they could use the defense of collusion.

Collusion has left its mark on divorce law in Mississippi, even though it’s no longer a viable defense. In any complaint for a fault-based divorce, the party who files must swear under oath that the grounds truly exist, and they are not in collusion with their spouse.

In almost all cases, if you resolve the contempt complaint by paying off an arrearage (or whatever was the basis for the allegation of contempt) then the court will take no action.

For the following examples, I’m going to use an arrearage of alimony as the basis for the contempt. This will streamline th examples a little bit.

If you are a month or two behind on your alimony, the judge will likely give you a reasonable amount of time to pay back the arrearage. You’ll also have to make the regular amount of the payment as you are paying the back alimony.

The worst case is if you are seriously behind. I’m talking tens of thousands of dollars. Unless you can come up with a major portion of that in a lump sum, you had better prepare for some jail time.

Let’s assume worst case scenario and you are locked up for contempt. How can you get out? Well, unfortunately, you can’t post bail. The “bail” for contempt is the arrearage.

The exact procedure is going to vary from court to court, but generally, in Mississippi, you can offer a significant portion of the amount you owe to the offended spouse in exchange for a recommendation to the judge to release you from jail. The judge, of course, is free to reject that recommendation.

If the offended spouse doesn’t accept that amount, some judges will consider it anyway, and some won’t.

What if you really don’t have the money and your friends and family can’t raise it? You’ll have to sit in jail until the judge is convinced that you can’t pay it. Again, this is going to vary depending on the judge as to how long you have to wait. There is no hard and fast rule.

What’s that? You thought you couldn’t be thrown in jail for unpaid debts? To my knowledge, no challenge on this basis has been successful when you are jailed for contempt. This is because the courts don’t view it as being jailed for a debt, but for disobeying a court order.

Image Credit: Jeremy Brooks

1. Bring your tax return. A divorce, in one respect, is the process of separating a legal entity–a marriage–into two separate entities–former spouses. A huge portion of that deals with how to split marital assets and debts. The more assets there are, the more complicated the divorce is likely to be. That’s why your lawyer will want to see the tax return.

It’s not just your divorce lawyer who wants to see it. The rules for chancery courts (the courts in Mississippi that hear divorce cases) require both sides in a divorce to exchange the previous year’s tax returns (or W-2’s if the previous years taxes have not yet been filed). The court will use this information along with evidence presented to equitably divide the marital property.

2. Complete the financial declaration. This is closely related to bringing your tax returns; if you really want to impress your divorce lawyer, bring your financial declaration to your first meeting. This form is also required by chancery court rules so the judge can adequately evaluate the division of assets during your divorce. It will require you to list such information as your assets and liabilities, bank accounts, and income. Like your tax returns, this is required to be exchanged with the other side of the divorce. You can find a blank financial declaration here.

3. A timeline of the problems leading to the divorce. This is easier to prepare if you’re the spouse who wants the divorce. If you’re not, you may have been surprised when you found out about the divorce. I know I was in mine. Once you get over the surprise, though, you will probably be able to look back and see particular events or troubles that were red flags your marriage was headed to divorce. Either way, this will help your divorce attorney evaluate your case to see if you have fault-based grounds for a divorce or if your only option is an irreconcilable differences divorce. The order in which events occurred is important because it may raise a defense to any grounds for the divorce.

4. The truth. People come to lawyers for help, but often fail to be totally honest with their lawyer. This can only hurt your case. Almost every divorce lawyer has a “war story” where they were blind sided by something their client admitted to during cross-examination. When later asked why they withheld the information, the client usually says they didn’t think it was important. This is going to sound arrogant, but you found a divorce lawyer because he or she knows more of the law then you do. You do not know what is important or what isn’t! If you beat your spouse, admit it to your lawyer. If you cheated on your spouse, admit it to your lawyer.The sooner your divorce attorney learns the facts that hurt you, the sooner he or she can deal with them. The sooner the bad facts are dealt with, the less they will probably matter when the judge hears them. You won’t make your lawyer think less of you. They’ve seen all kinds long before they saw you.

The other day, I had something happen to me that would have been devastating had it been discovered at trial. Another lawyer showed me a hard copy of someone’s Facebook page. This other lawyer had represented the opposing party in a recent divorce trial. What made this particular Facebook page important is that it was that of the “other person” with whom my client had been accused of committing adultery.

The first thing that stood out that this person, with whom my client stated they did not have a romantic relationship, had a photo hugging my client. The other thing that stood out was an announcement of their marriage just a few days after the trial. The real shocker was that a few days the other person announced they were having a baby with my client. That announcement was dated two days before the trial! You can imagine what would have happened at the trial

Let this serve as a lesson to any of you who are thinking about a divorce (actually, it can happen in any trial, not just a divorce). No matter on what grounds, if any, you are seeking a divorce, you need to perform an internet search on yourself and see what is out there. You should review any pages you may have on any social media sites such as Facebook and MySpace, Twitter, etc. for any information or photos that may be harmful. Because you may not understand what could be harmful, you may want to allow your attorney to access these pages so he or she can review them. You also want to review friends’ pages for the same sort of information and photos. about you.

I am reminded of a quote from a great criminal defense lawyer. I cannot remember the exact quote (or the lawyer’s name), so I will have to paraphrase. The lawyer was asked, “Just how many trials have you won in your career?” He replied, “I would have won all of them if my clients had just kept their mouths shut.” The moral: No matter how much work a lawyer puts into a trial, it can all be ruined by what seems to be a harmless act by the client.

Generally, an isolated act of violence can support a divorce on these grounds, but it definitely helps when there is a pattern of behavior.

A New York court recently examined an isolated act of violence with a samurai sword. There, the court strangely found that attacking your spouse with a sword may not be cruel and inhuman treatment, even when it was your daughter’s intervention that kept you from being killed. Read more about it at Daniel E. Clement’s New York Divorce Report.

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.

Let’s suppose you have a job and, for some reason or another, part of your paycheck is being garnished. By federal law, only 25% of your disposable income can be garnished. (Disposable income is generally defined as your gross income minus any mandatory deductions.) While this garnishment is still in place, your employer suddenly receives a writ of garnishment for a child support (or spousal support) obligation. Will more than 25% of your income be withheld?

The answer to this depends on a combination of federal and Mississippi law. As I stated earlier, federal law limits a garnishment to 25% of your disposable income. However, there is also an exception that applies to “any order for the support of any person issued by a court….” This “support exception” raises the limit to 50% of disposable income if you are supporting another child or spouse and 60% when you are not supporting another child or spouse.

Looking at this exception alone, it seems you are going to have to live on less than half of your income. But, as so often is the case in law, there is an exception to the exception. These federal laws do not annul, alter, or affect or exempt any person from complying with state laws that place further limits on garnishments. In Mississippi, Section 11-35-24 of the Mississippi Code states that a subsequent garnishment is stayed until the previous garnishment is satisfied.

As I interpret this interplay of federal and Mississippi law, the second garnishment, even if it is a garnishment for a support obligation, must wait until withholdings for the first garnishment is complete. Then, and only then, can withholdings begin for the support garnishment.

This doesn’t provide any relief from the higher limit on a garnishment for a support obligation imposed by federal law, but it does at least allow you to only worry about one garnishment at a time.

photo credit: andy.simmons

One of the most common questions I get is “How long is this going to take?” People want to know how long will they be tied up in litigation, and when can they get on with their lives. Like so many things were the legal process is concerned, there are no clear answers.

There are processes where a true emergency may be heard by a court in a matter of days. Even in these cases, though, this is just an initial hearing, and it must soon be followed up within a few days with another hearing to give due process to the other party.

The most certain deadline I can give a client is when it concerns a non-contested divorce where all factors are agreed upon by the husband and wife. In such a case, the divorce may be finalized by the Court 60 days after filing the Joint Complaint for Divorce. That doesn’t mean on day 60 the divorce will be granted, though. Chancery court judges are assigned to districts which contain more than one county, and the judges rotate between counties. Some months, the judge to which the case has been assigned may not hear cases in that county. In such a situation, it may be possible to get the case heard in another county, but I think you can now understand that it is unlikely to happen exactly on day 60.

In other cases, it largely depends on how complicated the case is. Additionally, there is the court’s calendar to consider. Courts usually “overbook” trials because most settle before court. However, if you’re not the “first setting” and a trial before you goes forward, you may have to get a new trial date. Add to all of this the complication of finding a date that (at least) two attorneys have available. All of these factors work to slow down “the wheels of justice” to some degree.

The article also targets crisis pregnancy centers, “the nonprofit pregnancy-testing facilities set up by antiabortion groups to dissuade women from having abortions.”

The gist of the article is that Bethany and other similar agencies coerce women into choosing adoption instead of abortion, and then keep them isolated where they can’t discuss any other options. Once the child is born, the birth mothers are basically abandoned with little support for the psychological trauma that often accompanies giving a child up for adoption.

To me, the article seemed to be an anti-Christian hit piece, but I’d like to know your opinions as well. Please leave a comment