Lately, I have had a large number of potential clients for a divorce on the basis of desertion.  This somewhat concerns me for reasons that I will describe below.  In the meantime, let’s discuss just how one can obtain a divorce for desertion in Mississippi.

According to statutes, a person may be eligible for a divorce in Mississippi if their spouse has deserted them for at least one year.  The desertion must be “willful, continuous, and obstinate.”  Let’s take a closer look at those terms.

“Willful” places the burden of intent upon the spouse who has supposedly deserted.  For example, if, while your husband is at his summer training with the National Guard, you pack up all of your things, leave, and establish a new household elsewhere, your husband has not willfully deserted you; you have deserted him. Similarly, if your spouse is held hostage for over a year (hey, it could happen), that is not willful (unless he or she agreed to be held hostage, but then are they really a hostage?)

“Continuous” is fairly simple.  That means that the period of desertion must be unbroken.  Suppose your spouse leaves you on January 1.  Then, let’s suppose the spouse comes back on March 2, but after a week, he or she decides to leave again.  January 1 of the next year, some may consider your spouse to have abandoned you for one year, but it has not yet been a continuous one year because of the week that the spouse returned.  The one continuous year of desertion will take place on March 9.

And then, there’s “obstinate”.  Basically, this means that you must have attempted to get your spouse to move back to the marital residence.  Obviously, if you do not know the current whereabouts of your spouse, you may not be able to request they move back in.

That brings me to my concern with divorces on the basis of desertion.  In my experience, the great majority of divorces on desertion take place with the spouse who filed claiming that they do not know the current address for the spouse who deserted.  In that situation, it may be necessary to have the “deserter” summoned to court by a notice published in the newspaper.  In order for that to happen, the plaintiff must submit an affidavit that they have made “diligent inquiry” regarding the current whereabouts of the defendant.

Just what is diligent inquiry depends on the judge.  In my opinion, you have not made a diligent inquiry until you have taken such steps such as calling the spouse’s phone number, make inquiries with the spouse’s family and relatives, performed one or more internet searches, and perhaps even paid for one of those services on the Internet.

In this information age, it is almost impossible to be unable to locate someone.  Certainly, it is much harder to make a diligent inquiry and not locate someone than it was ten or twenty years ago. If you just Google someone’s name, you may find addresses, but you will most certainly see ads for services designed to help you find people.

It is my concern that when people do not actually make diligent inquiry, they are defrauding the courts, and we lawyers may be unknowingly assisting them do that.

Uniform Chancery Court Rule 8.05 requires that in every case involving economic issues and/or property division (in other words, not just in a divorce, but anytime you go to court to modify child support or alimony), each party must provide the opposite with a detailed written statement of actual income and expenses and assets and liabilities.

In most cases, this is a relatively simple statement of income, monthly expenses, assets (including such items as the value of automobiles, land, bank accounts, mutual funds, etcetera), and liabilities (such as loans, mortgages, and other outstanding debts). A sample of this “short form” can be found here.

In some cases, either by court order or by agreement of the parties, more detailed information must be provided. Here is a sample of that “long form.”

Additionally, other financial disclosures are required.  The parties must provide each other with a copy of the preceding year’s federal and state income tax returns, if filed, or copies of W2’s if the tax returns have not been filed for the preceding year.

Additionally, the parties must provide one another with a general statement of employment history and earnings from the date of the marriage, or the date of divorce (or the date of the last modification to child support or alimony).

According to the Rule, each party is to make this disclosure to the other no later than the date of the defendant’s Answer (the document in which the defendant responds to the allegations made against him or her).  Unfortunately, many attorneys (including – I hate to admit – myself) often fail to produce this information by that deadline) and when they do, only the form is produced, and not the other documentation required in Rule 8.05.

I suspect that if this information was produced by both parties in the time required by the Rule, that cases would settle more quickly.  This is probably more true in those cases where one spouse is almost completely devoid of knowledge concerning the family finances, and the other is in possession of all relevant information.  Typically, in such cases, one spouse is a “homemaker” while the other makes all the financial contributions to the household.  However, at least in Mississippi, a homemaker’s economic contribution to the family is presumed to be equal with that of the spouse who works outside the home.  This is because the Mississippi Supreme Court has recognized the economic benefits a stay-at-home spouse contributes, such as cooking, cleaning, and child care.

Property division is a four-step process. First, property must be identified as separate property (belonging to only one spouse) or marital property (belonging to the couple). That, in itself can and will be the subject of another post one day.

The next step is to value the assets. This is done through evidence the parties present. Often, it may be only their opinion as to what an item is worth, but it is not uncommon to hire experts to valuate high-end goods, businesses, and certain collections.

The judge must then divide the property equitably. Note that the doctrine is equitable distribution, not equal. Although an equal distribution make be equitable, the judge will decide what is fair and equitable given the factors I will discuss below.

Finally, the judge is to award alimony, if needed, following the distribution of assets.

The Mississippi Supreme Court officially adopted equitable distribution as the method to divide marital property in Ferguson v. Ferguson. In that case, the court identified eight factors for the judge to consider when the issue of property division is before him:

1. which spouse made a substantial contribution to property accumulation;
2. spousal use or disposition of assets and any agreement of distribution;
3. the market and emotional value of the assets;
4. value of each spouse’s separate estate;
5. tax consequences and legal consequences to third parties;
6. extent to which property division can eliminate the need for alimony;
7. needs of each spouse; and
8. other factors that should be considered in equity.

“But, wait!” you say. “Where’s fault?”

It’s not there. At least, it’s not named there. It can be considered, though, if the judge thinks it should be considered. That last factor gives the judge the “wiggle room” to do that. In my opinion, most judges do consider it

Judge Larry Primeaux has many excellent posts on equitable distribution at his blog. I recommend you look at some of his posts to get a judge’s view of the topic.

(Photo credit: SantiMB)

There are a few exceptions to that rule. One such exception is that child support will end upon the emancipation of the child.

Emancipation is the removal of the legal “disability” of childhood. An emancipated child is treated, under law, as an adult.

Section 93-11-65 of the Mississippi Code states a child may be emancipated when the child:

1. Attains the age of 21;
2. Marries;
3. Joins the military and serves on a full-time basis; or
4. Is convicted of a felony and sentenced to serve at least two years for that felony.

Unless the support order states otherwise, a child is automatically emancipated when one of the above-four events happens.

There are other ways a child may be found to be emancipated, but a court must first determine that those events have happened:

1. The child is 18 and has discontinued full-time enrollment in school (unless handicapped);
2. The child voluntarily moves from home, establishes independent residence, and discontinues education prior to the age of 21; or
3. Cohabits without permission of the parent paying support.

Like the first four, these conditions do not emancipate the child if the support order allows for them.

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

Before the Entry of Judgment

If a party dies after the divorce has been filed but before a judgment has been entered, then the action, along with the deceased party, is dead. However, if the judge has issued a bench opinion, and the death then occurs before the judgment is reduced to writing, the judgment can be entered once it is on paper.

(Photo credit: TooFarNorth)

Child Support

Once a party paying child support dies, the support obligation ends. Absence an agreement otherwise, the  estate is not responsible for continuing to pay child support.

I usually insist on a provision that the support-paying parent must take out a life insurance policy  on him/herself with death benefits payable solely to the children (if there is not already such a policy in place). I think that is just part of responsible parenting.

(Photo Credit: Sam Howzit)

Death and Alimony

Whether death ends alimony depends on the form of alimony. Permanent alimony will end upon the death of either the payor or the payee, as will rehabilitative alimony. Lump sum alimony and reimbursement alimony continue after the death of the payor, and the estate must continue to pay any remaining obligation.

Separation Agreements

Parties often enter into an agreements in a divorce, especially irreconcilable differences divorces. Those agreements may or not be enforceable after the death of one of the parties.

Generally, such an agreement will not survive death because the agreement is contingent upon a court granting a divorce. If the agreement contains specific provisions that it is not contingent upon a divorce, then the obligations will continue past the death of one of the parties.