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)

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)

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.

• Be sure he is gone. It is best if he is far enough away that he cannot get back in time if he is alerted.
• Be prepared for the possibility he may have alerted a neighbor to keep an eye on things for him.
• Move fast. Make sure all arrangements are made ahead of time and the timing is closely coordinated.  Have enough people there at once to get the job done fast (note, however, the more commotion you cause, the greater the likelihood of being caught).
• Identify what you want to take before you go so you do not have a delay in deciding.
• Take what you must have; if you leave it, kiss it good bye.
• If you have a connection with local law enforcement, let them know what you are doing. Law enforcement are fickle on this issue. I have had some prevent a move when they were alerted by the other spouse.
• Be careful not to damage things or to destroy the home. This will be used against you.  You might even want to take pictures of what you left and the condition you left the house in.
• Either parent has equal access to children until a court order is entered.  You may take your child with you, but, remember, if you leave your child somewhere to which he has access without trespass, he can go get the child back. (Mississippi law)

Mark has more good tips there as well.

I would just add that if you are taking your children with you, it is best to allow some contact between them and your spouse. The judges I’m usually before do not like it when one spouse “abducts” the children from the other.