Discovery is part of the pre-trial process in which both sides are able to find out just what the other intends to prove and what facts can be established. You may be required to produce records that span several years, list all persons with information pertaining to the case, and more.

There are three main “tools” that are used in discovery.

Requests for Admission

The first of these are requests for admission. On their face, they look innocent enough, but in a way, they are the most dangerous of the tools. As the name suggests, requests for admission request a party to admit certain facts. For example, a requests for admission might read, “Admit that you are married to Sallie Doe.”

How is that dangerous? Well for one thing, you can’t just give a blanket denial of all requests. If you deny a fact that is later proven as true, you can be held liable for the attorney costs associated with proving that fact.

The other danger is that requests for admission are the only method of discovery that is self-enforcing. If they are not answered within thirty days, then the requests are deemed to have been admitted. So if you dilly-dally around, you may wind up admitted that you committed adultery or whatever other facts were requested to be admitted.

Requests for Production

Another method of discovery is the request for production. Officially, these are “requests for production of documents and tangible things,” but you’ll hardly ever hear them referred to as that.

Again, the name of this method pretty much explains what this is. It is a request made for the opposing party to produce documents or other items.

In some cases, this will result in boxes and boxes of paper and can become the search for a needle in a haystack. To help prevent this, documents are to be produced as they are kept in the course of business or in a manner directing the requesting party to the documents requested.

Interrogatories

Interrogatories are the only discovery method where the parties themselves have to sign the responses. An interrogatory is a written question that must be answered under oath and in writing. Because they are answered under oath, the responses can be used as evidence in the trial.

Unlike other discovery methods, interrogatories are limited in number. A party can only serve a total of 30 interrogatories upon another party.

Objections

An attorney is allowed to object to the interrogatories or requests.  As a practical matter, the objection will likely not do much good in a divorce case. That is because divorces in Mississippi are decided by judges and not by juries. A professional jurist, such as a judge, is much less likely to be swayed by an improper discovery request.

It can be hard work to answer all the discovery requests, but if both parties participate in good faith, it can eliminate a lot of disputed issues and help settle many cases.

(photo credit:  jintae kim)

1. I’ll get half of everything.

False (sort of). The popular belief is that each spouse is entitled to half of what the couple owns together. That is, for the most part, true in a community property state. However, Mississippi follows the doctrine of equitable division.

Under equitable division, the judge attempts to achieve a fair and equitable division of the marital property. The judge will consider a number of factors, including

• The length of the marriage;
• Tax consequences of the property division;
• Income and earning potential of each spouse;
• The contribution by each spouse to the accumulation of assets;
• … and more.

So, it is possible that you will get half of your combined assets, but there is no guaranty that such a result will happen.

2. I’ll get all of the property because my spouse is at fault for the divorce.

False.  As stated above, the judge will attempt to achieve an equitable result in the division of the property. Of all the factors to be considered, fault is not even named.

There is a “catch-all” factor, and that is presumably where fault can be considered. Even so, a judge is not to use property division to punish an at-fault spouse. This means that it is almost impossible that one party will bet all of the marital property just because the other was at fault.

3. I’ll get the kids because I’m the mother.

False (and true). There used to exist what was known as the tender years doctrine. This doctrine called for mothers to be given preference for custody of young children. It was based on the belief that a female is more caring, nurturing, and loving than a male.

The tender years doctrine now appears as one factor among many for the judge to consider. Those factors, called the Albright factors, are:

• Age, health, and sex of the child;
• Continuing care of child prior to separation;
• Parenting skills;
• Capacity to provide primary child care & employment responsibilities;
• Physical & mental health and age of children;
• Emotional ties of child and parent;
• Moral fitness;
• Home, school, and community record of the child;
• Preference of a child twelve or older;
• Stability of the home environment and employment of each parent; and
• Other factors the judge believes relevant

My opinion, however, is the Albright factors tends to favor mothers. This is because mothers are typically the primary caregivers of the children, which results in closer emotional ties, and more easily proven parenting skills. I have seen men win custody of children, but it is typically only when the judge finds some problems with the moral fitness of the mother.

4. I can get a no-fault divorce.

Not in Mississippi. A true no-fault divorce can be filed by just one spouse. You can, without having any reason, unilaterally decide you want to end your marriage.

Mississippi does not have a true no-fault divorce. We have fault-based divorces and irreconcilable differences divorces. In a fault-based divorce, you will have to prove you are entitled to a divorce. An irreconcilable differences divorce requires both spouses to agree to the divorce, and they can also agree to child custody, alimony, and property division, or leave any combination of those considerations up to a judge to decide.

5. I can’t get a divorce because I’m pregnant.

True & false. Mississippi law contains no provision prohibiting a divorce when the wife is pregnant. Most judges, though, will not grant a divorce if the wife is pregnant.

The reason behind this is that there is a presumption that the husband is the father of any child born during the marriage. By delaying the divorce until after the child is born, the husband will be responsible for any child support unless he can prove the child is not his. If the divorce was granted before the child was born, there would only be one parent, the mother, responsible for support of the child.

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

This leads to some problems in determining where a child custody action should take place. I recently had a question from a woman who lives here in Hattiesburg, Mississippi, but the child’s father lives in Georgia, and the divorce was granted by a court in Chicago. Where should any further child custody disputes be heard?

Lawyers call these kind of questions “choice of law,” and they are some of the most-despised legal issues because they can be so complex. Fortunately, there is the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) that settles many such questions in the area of child custody.

UCCJEA Jurisdiction

The UCCJEA, generally speaking, places jurisdiction over issues of child custody exclusively with the child’s home state. The home state is considered the state where the child lived with a parent or person acting as a parent for at least six consecutive months preceding the action. If there is no home state, then a court may exercise jurisdiction if the child has significant connections with that state. Significant connections require the child and at least one litigant to have a significant connection with the state other than mere physical presence and substantial evidence related to the action which is available in the state.

Defenses to Child Custody Jurisdiction

Just because a court may have jurisdiction over a child custody case, the court is not bound to exercise that jurisdiction. It may decline to do so because it is either inconvenient forum or because of a party’s wrongful conduct.

Inconvenient Forum

A court can decline to exercise jurisdiction if it finds that the dispute would be better heard in another state. The court is to consider (1) whether domestic violence is involved, (2) the length of time the child has lived outside the state, (3) distance between the states, (4) the financial situation of the parties, (5) agreements regarding jurisdiction, (6) location of evidence, (7) each court’s ability to decide the issue quickly, and (8) each court’s familiarity with the issues.

Should this defense not be raised before trial, it is considered waived and cannot be raised at a later date.

Wrongful Conduct

If the petitioner (the party who brings the action to enforce the custody decree) has acted improper in some way, then the court may decline jurisdiction. There is no definition of what conduct would be considered unjustifiable, and, I suppose, that is ultimately up to the court. A court may not grant a defense based on wrongful conduct if (1) all parties consent to the jurisdiction, (2) the proper court to have jurisdiction determines that it is an inconvenient forum, or (3) no other state has jurisdiction.

I’ll continue this discussion of interstate jurisdiction and enforcement in later posts

Fortunately, in Mississippi, a third-party can sue to prove paternity. The man who believes himself to be the biological father can sue in either the chancery, circuit, or county court in the county where the mother or child resides. (Note that this procedure is for intrastate cases; in interstate cases, the procedures in the Uniform Child Custody Jurisdiction & Enforcement Act would have to be followed).

While the possible father may give testimony and call witnesses establishing that he had a sexual relationship with the mother around the time of conception, the best course of action is probably to move the court for a DNA test. Such a test must be performed by a facility that is approved by the Mississippi Department of Health. While it is up to the judge to decide how to divide the costs associated with the test, it has been my experience that the judge usually requires the person requesting the test to pay for the test.

If the DNA test shows a 98% or greater chance of paternity, then there is a rebuttable presumption of paternity.

Should paternity be proven to a preponderance of the evidence, then the court may enter an order of filiation, that is, an order establishing paternity. If this is done, you should also expect the court to order the biological father to pay child support, including up to one year of back child support.

Do you know of someone who had to sue to prove they were a child’s father? What was their experience? Leave a comment and let me know.

Photo credit: Steve Heath

photo © 2009 Mark Holloway | more info (via: Wylio)

A great benefit for military personnel is Servicemembers’ Group Life Insurance (SGLI). This program allows servicemembers to purchase a relatively inexpensive term life insurance policy. Although you probably wouldn’t think about it, insurance is an important consideration in a divorce (warning: link contains some commercial content), but because of constitutional issues, SGLI may pose a stumbling block in a divorce case.

It is not uncommon for a judge in a divorce case to order a spouse who has to pay alimony or child support to maintain a life insurance policy on himself with the alimony or support recipient as the beneficiary. That way, should the paying spouse die, the recipient of the alimony or support will not suffer a hardship.

In local cases dealing with divorces of military personnel, the judge will usually order the servicemember to maintain the child as beneficiary on the SGLI policy. Judge Larry Primeaux notes in his blog that such an order violates the Supremacy Clause of the U.S. Constitution.

You may remember the Supremacy Clause from high school civics class. It states:

In other words, a state law may not negate a federal law, and a state judge cannot issue an order that would violate federal law. (A state law may impose more restrictions than a federal law, but that’s outside the focus of this post.) So, in a divorce, which is a matter of state law, the judge may not order the servicemember to keep a specific person as the beneficiary of the SGLI policy.

What does this mean if the terms of your divorce judgment requires your ex-spouse to keep you or your child as beneficiary on his SGLI policy? It means that your ex-spouse cannot be found in contempt of court if they fail to do that. If the spouse entered into an agreement to voluntarily do this, however, I suppose that could be enforced in the court under a contempt hearing (assuming the agreement was incorporated into the divorce judgement). There should also be an action available using a breach of contract claim.

Now what if your divorce is pending? Judge Primeaux recommends you request the judge take judicial notice of the 1981 U.S. Supreme Court case, Ridgway v. Ridgway, 454 US 46 (1981), which established the supremacy clause applied to SGLI and the selection of beneficiaries. Additionally, you should request the judge order the military spouse to obtain a private life insurance policy on himself with the appropriate person as beneficiary.

Tim Evans is a Hattiesburg, Mississippi divorce lawyer serving clients in the counties of Forrest, Lamar, Perry, Pearl River, Stone, Marion, Covington, and Jones. If you have any questions concerning SGLI and divorce or any other family law issues, please call Tim at (601) 255-5085. You can also email Tim Evans here.