There are two broad conditions that justify the award of attorney fees. The first is when one party has the inability to pay. The other condition is based on the party’s conduct.

Inability to Pay

Under Mississippi law, a party to a divorce may be awarded attorney fees when they are unable to pay. But what exactly is an inability to pay?

That is determined based on the party’s assets, expenses, and income. Unfortunately there are no hard and fast rules. It seems, based on rulings of the Mississippi Supreme Court, that you need not dip into retirement accounts, and sometimes, you do not need to sell your assets. However, in other cases, the courts have held that a party must do so. What is clear is that the inability will be determined on a case by case basis.

The chancellor should justify his finding on the record—that is, in writing—and must consider what are known as the McKee factors:

1. A sum sufficient to secure a competent attorney;
2. The skill and standing of the attorney employed;
3. The nature of the case and novelty and difficulty of the questions at issue;
4. the degree of responsibility involved in the management of the cause;
5. the time and labor required;
6. the usual and customary charge in the community; and
7. the preclusion of other employment by the attorney due to the acceptance of the case.

Even if the judge finds there is an inability to pay, he must also consider the financial disparity, if any, between the parties. Finally, there must be some proof on the inability to pay.

Party’s Conduct

The conduct of a party may justify the award of attorney fees in the following situations:

• Dilatory Tactics – when one party prolongs litigation and increased the other’s expenses by concealing assets or refusing to comply with discovery, an award may be appropriate.
• Contempt Actions – This is the most common way fees are awarded and occurs when a party violates a court order.
• Unfounded Allegations of Child Abuse or Domestic Violence. In my experience, many attorneys are not ware of this, and I haven’t seen that many requests for fees in those situations.

Reimbursement

Usually, the award of attorney fees is done as a reimbursement. You will have to pay your attorney, and then you get awarded the fees back by the court. In a few situations, an attorney may take the case with only the hope of getting fees at the end, but that runs a little to close to taking a contingency fee for a divorce—which is prohibited—for my taste.

Photo Credit: Stevendepolo

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)

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.

For many people, some of their fondest memories of childhood are times they spent with their grandparents. One of my earliest memories is me walking to downtown Quitman, hand-in-hand with my grandfather, to Slay’s store. I can still remember the smell of sawdust on the floor of its old-timey butcher shop.

(I digress, but that just goes to show how powerful the memories can be)

There are two situations in which a grandparent may have a court order visitation. The first is when the parent of the child has died or has otherwise lost parental rights. The other is when there was a pre-existing relationship with the grandchild.

Photo credit: Pingu1963

The Death of a Parent

I picture a grandparent’s rights to visitation as going through their child—that is, the child’s parent. When the parent dies or loses their legal rights as parent of the child, the grandparent’s rights go away.

I like to think that’s not true in most families; hopefully the surviving parent wants the grandchild and grandparent to have a good relationship. In reality, that does not always happen. I’ve seen several cases where bad blood between the grandparent and the widowed parent causes the parent to allow no contact with the grandchild.

In such a situation, the grandparent can petition the chancery court to order reasonable visitation.

Photo Credit: Brian Hathcock

An Established Viable Relationship

But what if both parents of the child are living, and the parents just don’t want the grandparent to visit the child?

In this situation, it is possible to obtain visitation, but it is more difficult. If you stop and think about it, it should be. A parent is presumed to know what is best for their child. This presumption is recognized by the legislature by making it more difficult for a grandparent to get visitation rights when both parents are living.

To overcome the parents’ desires to prohibit visitation, the grandparent must prove that there was an established viable relationship with the child. A “viable relationship” may be proven by showing the court that:

• the grandparent(s), voluntarily and in good-faith, supported the child financially for at least six months prior to filing the petition,
• there was  frequent visitation (including occasional overnight visitation) for at least one year, or
• the grandparent(s) cared for the child for a significant period of time during the parent’s absence due to jail or military service.

Where to File?

Where the parent’s rights have been terminated, the grandparents can file their petition for visitation in the county where the order of termination was entered. If the parent has died, then the petition must be filed in the county where the child resides.

If the grandparents are attempting to overcome parental restrictions on visitation, then they must file where an order of custody has previously been entered or where the child resides (if no such order has been entered).

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.

I don’t think the concept of a Christian  divorce lawyer is strange. In fact, I would go so far as to say that it is needed in today’s society.

Doesn’t God Hate Divorce?

Like many of you, I’ve  always heard “God hates divorce.” Taken literally, that is what the Bible says. While I believe the Bible is God-inspired, I think there are often problems with human interpretation of God’s word. This, I believe, is an example of that.

There are those who believe the Hebrew language of Malachai was incorrectly translated. They believe that the verse refers to a practice by some Biblical-age Hebrew men of separating from their wives without following the law God gave in Deuteronomy 24:1.

If the certificate had been given, the wives would have been free to remarry. However, because the men didn’t follow God’s instructions, both they and their wives were committing adultery if they married others.

A Fallen World

Then, you must also remember we live in a fallen world. If you believe divorce is a sin, then you must admit it’s going to happen because of the sinful nature of man. I believe that a person going through a divorce without a good Christian attorney advising them is likely to sin further.

There are those who think divorce lawyers encourage divorce, and there are some who do. But I am never happier than when my client and their estranged spouse reconcile. While I must, from a legal standpoint, advise my client of the legal dangers of reconciliation (certain claims may no longer be viable if you reconcile), I believe reconciliation is the “perfect world” resolution to a couple deciding to divorce.

Be In the World, But Not of the World

Finally, Jesus told us to be in the world, but not of the world. I think having a Christian guide someone through the divorce process is another way for His love to be shown to those who need it the most. If you want to punish your spouse, I’m not the lawyer for you. If you want it to be resolved as peacefully as possible, and get what you should get coming out of the marriage, I’m your guy. Divorces hurt. They don’t need to be hurtful.

Image Credit: Craig Damlo

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

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

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