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

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.

The next candidate to author a guest post here is Alex Ignatiev. As I stated before, none of these posts should be taken as my endorsement for any candidate.

I am the son of immigrants.  Both of my parents came to this country at the age of seven, nine years apart.  My uncle was an attorney and a historian, and my lifelong love of both law and history came from him.  I was raised in the Russian Orthodox Church Outside of Russia, and am presently a member of Christ the Saviour Orthodox Church in McComb, Mississippi, and the Holy Cross Mission of the Orthodox Church in America here in Hattiesburg.  I married Tina Marie Jenkins in 2008.  I was admitted to the bar on September 13, 2001, and sworn in on September 25, 2001.  I worked for Judge Bridges at the Court of Appeals from December 2001 until the end of December, 2002.  I went to work for Gunn and Hicks, PLLC, in Hattiesburg in January, 2003, and worked there until Memorial Day 2004.  I worked in Brookhaven at Allen, Allen, Breeland, and Allen, PLLC until January 1, 2006.  I then opened my solo practice in Hattiesburg, and unsuccessfully ran for chancellor in 2006 against Gene Fair and other candidates.

Judge Bridges was and is my mentor.  His forthright honesty and insight into the human condition has guided my practice and my attitude towards my colleagues and my clients.  He taught me that a positive attitude and maintaining a sense of humor are essential to the practice of chancery law.  I have established a record of taking on difficult cases that other attorneys have withdrawn from and completing them.  Too many cases languish because of attorney conflicts.  I have found that a willingness to work with attorneys that I do not have the best relationship with has made my clients’ lives better.  My success is due in large part to Judge Bridges, and my failings are despite his best efforts.  He is my inspiration, professionally and personally.

The number one complaint my clients have is that a case has been tried, and no order has been entered.  Unfortunately, this happens all too often even in the best chancery courts.  Our courts have functioned well because of the accessibility of the judges to the citizens.  Judge Thomas was very accessible, and he was willing to work with attorneys and litigants to resolve issues, but even he was swamped by an overstrained docket.  If I am elected, I will institute a system using Google Calendar, Facebook, and Twitter, which will notify the public where I am located on a particular day, in term or out of term (unless I am on vacation).  I will also establish a policy that when I am in a particular county for a day, I will remain in that county at a temporary office for the day until 5:00 pm, so that less time is wasted in travel.  There are sufficient rooms in our district’s courthouses to allow such a setup, and with a good, secure netbook and a printer I will be able to assist attorneys without making them chase me back to chambers.  I will also set up an email account specifically for sending proposed orders to the court, with electronic certificates and digital verification, if necessary, to assist attorneys in moving their cases through the system.  I have also pledged to retain Barbie Parham as the Court Administrator, and Patsy Ainsworth as the Court Reporter in Post One.  No one is losing their job if I get elected, and I don’t have any staff coming with me to the Court.  No one will have to learn how to deal with a new administrator or reporter.

 have asked several candidates for the Post 1 chancery judge office to write posts regarding their write-in candidacy. From what I have heard, there are fourteen persons hoping that the voters of Forrest, Lamar, Marion, Perry, and Pearl River Counties will write in their names. I have not been able to find out all the names, and so I probably can’t get all of them to write a post such as this.

These posts are not my endorsement of any candidate, and are meant to help educate the voters of the Tenth Chancery District. The first guest post is by Chad Shook.

Our community lost a dedicated public servant on October 1, 2010 with the untimely death of Judge James H.C. Thomas, Jr.   Judge Thomas provided yeoman’s service for 16 years to the chancery courts of Perry, Forrest, Lamar, Marion, and Pearl River counties.  Judge Thomas’ former judicial office, District 10, Place 1 will be filled by write-in votes on November 2.

My name is Chad Shook, and I am pursuing this position because I desire to serve the people of 10th Chancery District in this important judicial role.  My legal career has taken me from the halls of the state’s appellate court system to Greenwood, Mississippi and the Mississippi Delta region as well as southwest Tennessee.  I have practiced law in Hattiesburg and the 10th Chancery District since 2003, over half my legal career.  My law practice has been a mix of litigation and transactional work, including traditional chancery court matters. I am a certified mediator in Mississippi as well as a public arbitrator for the Financial Industry Regulatory Authority (FINRA) where I serve on arbitration panels deciding disputes in the securities field.  I am an active member of the Mississippi Bar, where I am a member of the Executive Committee of the Workers’ Compensation Section and a member of the Alternative Dispute Resolution Section.  I have previously served on the Mississippi Bar’s Ethics Committee and have been involved in Bar- sponsored programs to include the Lawyer in Every Classroom program and the Mississippi high school mock trial program, programs directed toward encouraging young people to enter the legal profession.  I believe my work with these programs demonstrate my care and concern for young people who are often impacted by the decisions rendered by chancery court judges.  I am a member of the Hattiesburg Exchange Club, a service organization that supports the Center for the Prevention of Child Abuse and Hattiesburg Dixie Youth Baseball.  I also have the privilege to serve on the Board of Directors of the Child Abuse Prevention Center of South Mississippi.  I am licensed to practice law in Mississippi, Alabama, Georgia, and Tennessee.

If the voters entrust me with this office, I pledge to carry out my duties with integrity, in a deliberate and decisive manner, while demonstrating fairness and compassion to all parties and counsel who appear in his courtroom.  I want to assist parties who find themselves embroiled in stressful litigation to achieve closure of their legal issue(s) and move on with their lives.

Please WRITE-IN Chad Shook for Chancery Judge, District 10, Place 1 on November 2.  Thank you for your consideration.