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.

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.

One of the grounds for divorce that just about everyone has heard of is cruel and inhuman treatment. The “full” name is habitual cruel and inhuman treatment, and even though it is probably the most commonly used fault-based ground for divorce, it is actually a pretty difficult to prove.

The Supreme Court has said that a divorce based on habitual cruel and inhuman treatment (“HCIT”) is only appropriate where conduct was so extreme that continuing the marriage would endanger life, limb or health.

Conduct

Just what conduct is sufficient to be called HCIT? Remember, it is “habitual,” and that, in most cases, one incident of physical violence is not sufficient. However, where an isolated incident of physical violence is combined with other conduct, such as chronic verbal, mental, and emotional abuse, it is possible for HCIT to be found to exist.

What if there is no physical violence at all? Then it is even harder to prove. It is possible for a pattern of behavior to be so outrageous as to be classified as HCIT. In that situation, there must be a history of acts that when taken together render the marriage so revolting that it is impossible for it to continue.  In the cases that fall under this description, the focus is usually upon the effect the behavior has on the offended spouse and not on the legally fictitious “reasonable person.”

Proof of Habitual Cruel and Inhuman Treatment

Like the other grounds for divorce, there must be corroborating evidence of the behavior and actions that that are cruel and inhuman. A loophole exists, though, where corroboration is not reasonably possible because of the type of conduct or the location where it took place.

Additionally, the evidence need not directly prove the treatment. The evidence must, however, lend enough support to the plaintiff’s testimony for the court to conclude that the testimony is true.

Photo Credit: CrumleyFamily (via Flickr)

Obligations under a Divorce Judgment

In a nutshell, no obligation incurred to a child or ex-spouse in a divorce is dischargeable in bankruptcy. Section 523(a)(5) of the Bankruptcy Code states that a domestic support obligation is nondischargeable. Section 523(a)(15) provides that other obligations are also nondischargeable.

Before the bankruptcy reforms enacted in 2005, the spouse seeking to have a property division obligation enforced would have to prove that enforcing the obligation would harm the spouse in bankruptcy less than he or she would be harmed by discharging the debt.

Effect on Divorce Proceedings

When a debtor files bankruptcy, the automatic stay goes into effect. This prevents any collection attempts on the debtor’s property. It also prevents a court from assigning property to another, including a spouse. In that event, the spouse who is not in bankruptcy must file a motion with the bankruptcy court to lift the automatic stay so that the divorce court can divide the marital property.

(Illustration by The-Lane-Team)