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)

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)

Restoration of Name

Women who took their husband’s last name may have the right to use their maiden name returned to them. This should be in the divorce judgment, so you or your lawyer should bring it to the judge’s attention if it is not in any judgment that the lawyer may have prepared.

If you have custody of your children, and they have your husband’s name, you may want to think twice before changing yours. The kids will already feel a loss. They may interpret the “rejection” of your husband’s name as a rejection of them.

If you forgot to get your name restored in the divorce, it will require going back to court to get permission for the name change.

Banking

Chances are that you have already gotten separate bank accounts from your now ex-spouse. Nevertheless, after the divorce, you want to make sure that your name is taken off any old joint accounts.

Carefully check your statements from your new account if you are still using the same bank. I have had one client open a separate account at the bank where she and her ex had a joint account. Because of a snafu, her new account was created with him having access to the account.

Insurance

You should check your insurance, especially auto insurance, to make sure you are not paying for coverage on your ex’s car following the divorce. There may be other insurance concerns as well.

If you are paying child support or alimony, you may be ordered to obtain a life insurance policy on yourself  with the beneficiaries being your children or ex-spouse.

A divorce judgment may order that a life insurance policy’s ownership be transferred. Following the divorce, you need to follow-up to make sure it was done.

Accountants

Your accountant can probably tell, come tax time, that you’ve gotten divorced, but you may want to consult her before then. You may now need to have less money withheld from your paycheck for taxes. That will give you more money every payday. Just be careful that you don’t have to pay too much come April 15!

Lawyers

If you have a lawyer other than the one you hired for your divorce, make sure they know that you were divorced. Wills may need to be changed. Trusts may need to be amended or revised. If you were in the middle of a personal injury case when you were divorced, your ex-spouse may be entitled to any money you recover as a plaintiff in that case.

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

As this client’s tale illustrates, it is not easy to get a divorce in the state of Mississippi. This is understandable. First, Mississippi is in the bible belt, and the Bible is not known for its pro-divorce stance. Second, what politician wants to be labeled as anti-family? This results in some people being “held hostage” in a marriage, even when a marriage has broken down to the point where it is a marriage in name only.

Many people assume that somehow getting a lawyer involved will help. This may have been true at one time, but the “intimidation factor” of hiring a lawyer still exits for most people. What it will do is make the other spouse know that you are serious. This can sometimes be all that is needed. A lawyer does, however, have more experience matching situations with the various grounds. A lawyer, simply through experience, can see ways to fit the “square peg” of your situation into the “round hole” of a basis for divorce.

But what if there are no applicable grounds? What can you do then?

You may be able to file for separate maintenance.  You may have problems doing this if you were the one who left the marital home or if you make more money than your spouse. If you are successful in proving your case for maintenance, your spouse may have to pay you more than they would in a divorce because they are to support you at the standard as if you were still married, which is a higher standard than divorce. This often results in the other spouse suddenly changing their mind and agreeing to the divorce simply because it is cheaper for them.

Sometimes, though, there is nothing that can be done. I’ve seen people in these situations where they have gone on with their life, or as much as they can. They may even enter into a new relationship and wind up living together with their new love interest, and even having children. Ironically, the pro-family stance that makes it so hard to legally end a marriage in Mississippi can thus lead to illegitimate children. I guess every action really does have an equal and opposite reaction.

As stated above, to obtain an ID divorce, both parties must give written consent to the divorce. This can be done where both spouses agree to the divorce from the beginning, and they both sign a joint complaint.An ID divorce can also be granted when a divorce began life on fault grounds. In that situation, the fault-based grounds will have to first be dismissed and a written consent to an ID divorce filed with the court.

The courts (and lawyers) definitely prefer when the parties to an ID divorce agree to child custody, child support, alimony, and property division. Such a divorce is usually granted within a few minutes once it has its day in court. However, if the spouses cannot agree to all of the above-listed issues, then the spouses may give written consent to the court to decide those issues on which they can’t agree.

This is why I do not like the term “uncontested divorce” when it is used as a synonym for an ID divorce. Many prospective clients will tell me they have agreed to an uncontested divorce with their spouse. Upon further questioning, though, I learn that they don’t agree on whether alimony will be paid, or child custody, or …. In my book, that’s not an uncontested divorce. If there’s some fighting left to do, I don’t call it uncontested.

Once the divorce is filed, it must remain on file for at least 60 days (not including the day on which it was filed). This is a “cooling-off” period that allows people to reconsider the divorce. If, at any time prior to the divorce being granted, one of the spouses revokes their consent, the ID divorce cannot proceed unless the consent is reinstated.

For example, I believe establishing visitation on the first, third, and (when applicable) fifth weekends of the month to be preferable than saying visitation is to take place every other weekend. That way, you can look at a calendar and instantly tell when visitation is to take place as opposed to having count out weekends. Also, I think you need to define how to determine to which month a weekend belongs when a new month starts during the weekend.

A recent decision by the Mississippi Court of Appeals lends some support to my way of doing things. That court recently reviewed the Madison County case of Benal v. Benal. In that case, the judge failed to order specific visitation because that issue had not been submitted to the court for consideration.

Citing an earlier case, the Court of Appeals found that a specific visitation schedule must be addressed by the trial court if the issue of custody is submitted for resolution (the court may adopt the visitation schedule agreed upon by the parties). The Court of Appeals did not address how specific the schedule must be, and that will probably be the eventual subject of another case.

Most laypersons don’t understand just how state specific law is—or at least I didn’t before I went to law school. That is very true about family law. There are some general principles that are mostly the same everywhere in the U.S., but the devil, as they say, is in the details.

Ben Stevens (aka The Mac Lawyer), a South Carolina family lawyer, has compiled a list of state-specific family law blogs. I’m glad to see he didn’t overlook this blog! 

If you need some family law help in a state other than Mississippi, check out his list to find a lawyer who blogs in the state in which you need assistance. Of course, I’ll also put in a shameless plug and say if you need help with a family law issue in Mississippi, give me a call.