M. Devin Whitt
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homeA court determining property division and alimony is required to look at certain factors. What are known as the Ferguson factors related to property division include how much each party substantially contributed to accumulating property, the degree to which each spouse has disposed of marital assets, the market value of the assets, the value of the assets minus equitable factors, tax and other economic consequences, the extent to which property division can be used to eliminate sources of friction, the needs of the parties to achieve financial security, and any other factors that should be considered to make an equitable division.

The Armstrong factors to be considered in connection with an alimony award are the spouses’ income and expenses, the parties’ earning ability, the parties’ needs, the parties’ obligations and assets, how long the marriage was, the presence of minors, the parties’ age, their standard of living during the marriage and when support was being determined, tax consequences, spousal fault or misconduct, the waste of assets, and any other factor considered just and equitable to set alimony.

In a recent appeal, a woman sued for divorce, and the couple agreed that it was on the basis of irreconcilable differences. A chancellor had to decide issues of alimony, equitable distribution, and attorneys’ fees. A judgment of divorce was executed, in which the divorce was granted and the marital assets were divided. The wife was awarded $1,360 on a monthly basis from the husband’s retirement account, with this payment to be made for 12 years. The wife appealed on the grounds that no specific findings were made and that the chancellor had failed to make specific findings about alimony.

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In Mississippi, the divorce laws have not changed in many years.  However, on July 31, 2017, following a period of several months of debate, drafting, and public outcry, what many believed to be a long overdue and beneficial change to the state’s divorce law went into effect. Under the twelve traditional fault-based grounds for divorce allowed by Mississippi law, the Legislature decided to amend the ground of habitual cruel and inhuman treatment to include “spousal domestic abuse.” While the addition of this language will get the most press and is the most obvious change to the statute, the evidentiary standards of this amendment are what will lead to real change to the application of Mississippi divorce law.

In the past, claims of spousal domestic abuse needed to be corroborated to be established, but there was no clear standard to be met with that corroboration. Under this new amendment, spousal abuse can be established by the reliable testimony of one credible witness, who may be the abused spouse themselves. The witness may testify that the spouse attempted to cause bodily injury to the victim, purposely, knowingly or recklessly succeeded in causing that harm to the victim, or that the spouse attempted by physical menace to put the victim in fear of imminent bodily harm. Cruel and inhuman treatment may also include behavior such as threats, emotional or verbal abuse, sexual abuse, or stalking. Evidence of habitual cruel and inhuman treatment must be established by the “preponderance of the evidence.” Mitchell v. Mitchell, 823 So.2d 568 (2002). This simply means “more likely than not,” or 51% likely to have happened.

The word “habitual” being in the statute may seem like domestic violence must happen multiple times to be pursued as a ground for divorce, however Mississippi case law shows that this is not always true. While generally it is true that habitual cruel and inhuman treatment must be shown to be “habitual,” one incident may be of such a violent nature that it may endanger the life of the victim, and may be enough to show habitual cruel and inhuman treatment. White v. White, 208 So.3d 587 (2016). Many instances of domestic violence probably rise to this level of seriousness, and therefore abused spouses should not be deterred by the word “habitual” being in the language of the law.

manIn a recent Mississippi appellate case, a wife filed for divorce on the fault-based grounds of adultery and habitual inhuman treatment. The couple married in 2004 and then separated in 2011. They had no children.

The husband owned a bail bonding business, and the wife worked as an admissions registrar. She also worked as an office manager at her husband’s bail bonding business. She owned a home in Vicksburg when the couple married. It had two mortgages and was worth $100,000. The husband also owned a home before and during the marriage, which was located in Vicksburg, owned without a mortgage, and worth $46,120. The couple lived at the wife’s property, and she quitclaimed her interest in that property to her husband.

The couple wanted to get money to build their marital home, so they refinanced what had been the wife’s property, and the husband paid off the second mortgage. They sold it for $100,000 and got a $50,000 loan on the other property, and with those proceeds they built their marital home. That home was valued at $380,000 and had a mortgage balance of $180,000. The husband held title to the property, but it was the marital residence until the couple decided to divorce. The couple also built a house nearby that was valued at $226,300. They paid in full for the home, and the husband took title. They also bought different cars and had marital debt of $279,749.61 when they decided to divorce.

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We have all heard the term “consenting adults.”  Well, Mississippi law requires such consent before a divorce on the ground of irreconcilable differences (also known as a “no-fault” or “agreed divorce”) will be granted.  A divorce will not granted simply because he or she no longer desires to be married to the other person. Without a fault-based ground for divorce, both parties must be in agreement and give consent to an irreconcilable differences (or “no fault”) divorce.  Consent is accepted by the court in one of two ways: (1) a written agreement defining all child custody, child support, child visitation, and division of marital assets and marital debts; or (2) both parties must give consent to allow the court to decide these issues for them if they cannot agree. Either way, consent is required by both parties for an irreconcilable divorce to be valid.

ID Divorce

If either party refuses to accept the terms demanded by the other party and refuses to allow the court to choose for them, the only other option is to sue for divorce.  This involves alleging a fault-based ground on the other party of which this party may admit or challenge these allegations of fault.  If both parties can agree to and consent to wanting the divorce, an irreconcilable differences divorce may be your best bet.

Mississippi Code Section 93-5-2 (3) pertains to consent agreements for irreconcilable differences divorces and provides the following:

(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto…Mississippi Code Section 93-5-2 (3)

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womanWhen filing for divorce in Mississippi, you can file based on fault or no-fault grounds. Existing fault grounds in Mississippi include adultery, criminal conviction with a sentence to jail time, bigamy, impotence, willful continuous desertion for a minimum of a year, habitual substance abuse, habitual cruel and inhuman treatment, the spouses being related to each other by a certain degree of kinship, hospitalization for three years due to insanity, or a wife’s pregnancy by another man. Whoever alleges fault must prove it at court in trial, and a finding of fault can affect an alimony award.

There is one no-fault ground for divorce, which is irreconcilable differences. This just means that a couple isn’t able to get along, and there’s no chance they’ll get back together. Spouses trying to get a divorce on no-fault grounds need to agree to divorce on the basis of irreconcilable differences. In Mississippi, if one of the spouses refuses to divorce on that basis, the spouse seeking a divorce must prove one of the fault grounds.

Recently, the Mississippi Senate passed a bill including a few new fault grounds for divorce. If the Mississippi House agrees, domestic violence and separation will be added to the list of fault grounds.

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blogpicSo you both agree that you want to be divorced and you want to be divorced NOW! If no one is at fault for the divorce, you may wish to file what is known as an irreconcilable differences divorce.

Irreconcilable Differences, also known as an “ID” or “no fault” divorce can be less stressful, less costly, and faster than a fault based divorce. The parties in an ID divorce must agree to the terms as set out in a property settlement agreement outlining the division of their debts and assets and a custody agreement if there are children involved.

But unfortunately, if you are wanting a divorce granted in the state of Mississippi, you will have to ride it out for at least sixty (60) days according to Miss. Code section 93-5-2 (4) which states: Divorce on ground of irreconcilable differences: Complaints for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before the Judgment is entered.

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The entire concept of property division in a Mississippi divorce is rooted in fairness. In every divorce case, our Chancery courts are charged with the task of determining what is fair on a case-by-case basis. Typically, in a divorce, each spouse’s subjective view of fairness differs. Each spouse generally wants to keep as much of the marital property for themselves as possible following a divorce. And because of this general feeling and inherent goal of retaining everything possible in a divorce, a divorce can get ugly–and get ugly fast. In some cases, spouses have taken the “if I can’t have it, no one can” approach and dissipated–or wasted–marital assets that were otherwise subject to equitable (fair) distribution in divorce. A spouse’s wasteful dissipation of marital assets is a surefire way to complicate the divorce, prolong the divorce, increase attorney costs, and–most importantly–upset the Chancellor presiding over the divorce case. In other words, wasteful dissipation could be considered a “cardinal sin” in a divorce case.

“Wasteful dissipation is, by definition, ‘to indulge in extravagant pursuit of pleasure.'” Lowrey v. Lowrey, 25 So. 3d 274, 293 (Miss. 2009) (citing Webster’s II New College Dictionary 330 (1995)). Wasteful dissipation may occur during the marriage–typically in the time leading up to, or during, a period of separation–or while a divorce is pending. Accordingly, wasteful dissipation of marital assets is a prime consideration in both property division and alimony determinations in Mississippi. See Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994); Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). Remember, alimony–or post-marital spousal support–is only awarded to balance the scales of fairness between the spouses following property division. Williamson v. Williamson, 81 So. 3d 262, 274 (Miss. Ct. App. 2012) (finding error where the lower court considered alimony prior to property division). So, the overarching purpose of examining any waste of marital assets is to ensure that one spouse has not inequitably wasted property that the other spouse would have been entitled to in a divorce.
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Who gets the house? This is the million dollar question I get from many of my clients. Simply put, the answer to who gets the marital home in a Mississippi divorce is not always an easy answer. The marital home or residence is often the largest marital asset the parties possess, so it is not unreasonable for both spouses to want to retain or keep the marital home in a divorce. However, in some instances it is not reasonable, fair, or financially sound for one or either spouse to retain the marital home after divorce. And ultimately, it is up to the chancellor in the divorce proceeding to determine who gets what in a divorce, including who gets the house.
who gets the house.jpgIn Mississippi, chancery courts and chancellors are given vast discretion in awarding certain marital property to either divorcing spouse. Johnson v. Johnson, 650 So. 2d 1281, 1288 (Miss. 1994) (citations omitted); Boykin v. Boykin, 445 So. 2d 538, 538-39 (Miss. 1984) (“there is no reason why a chancellor, under the broad discretion granted him, cannot in his decree award possession of the marital residence to either party.”). As it pertains to awarding the marital home to either spouse, chancellors generally consider the equitable distribution factors laid out in Ferguson and they also “consider all the awards to the payee[recipient] spouse and the concomitant burden placed upon the payor spouse.” Brooks v. Brooks, 652 So. 2d 1113, 1124 (Miss. 1995) (referring to Brendel v. Brendel, 566 So. 2d 1269 (Miss. 1990)); see generally Ferguson v. Ferguson, 639 So. 2d 921 (1994). Essentially, when awarding the marital home to either spouse, chancellors are charged with determining what is fair as well as assessing whether an award of the marital home to one spouse will place an unreasonable burden (usually an unreasonable financial burden) on the awarding spouse. Thus, if a spouse is going to fight to keep the marital home in a divorce, he or she should have a good reason to do so and should make sure that he or she can afford to keep the house.
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Do not “sit” on your right to enforce or collect on a divorce judgment. Let me repeat that: DO NOT wait too long to enforce a divorce judgment or any incorporated alimony, property settlement, or child support judgment. I give this counsel to all prospective clients that contact me asking whether they should bring their ex-spouse back to court to enforce alimony, property settlement, and/or child support agreements/provisions associated with a divorce judgment (collectively “divorce judgment”). If a person does not timely seek to enforce a divorce judgment, the law can and will bar enforcement of that judgment by way of the statute of limitations.

Ticking Clock.jpg

In assessing any case, one of the very first things an attorney does is determines whether the statute of limitations has ran on a client’s claim. The statute of limitations sets a particular time period for claims and causes of action to be filed so as to ensure that such claims are “ripe” for judicial determination. If a person files a claim or seeks to enforce a judgment outside the statute of limitations–after the legally prescribed time to bring the claim has ran or expired–then the person’s otherwise viable claim will be barred by the statute of limitations because it is considered untimely, or “stale.” Despite very few narrow exceptions where the doctrine of laches or equitable estoppel applies, if the statute of limitations has expired on a given claim or right to enforce, then recovery or relief cannot be had on such a claim. See e.g., Nicholas v. Nicholas, 841 So. 2d 1208, 1212-13 (Miss. Ct. App. 2003). This concept equally applies to divorce judgments, including alimony, property settlement, and child support provisions/judgments included in, or attached to, a final judgment of divorce.
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One of the most frequently asked questions I have received in my years of divorce practice is “how much is this divorce going to cost me?” This is a fair question, but a tough one to answer. In Mississippi, divorce is neither easy nor free. While I often find myself going to great lengths to save my client’s time and money in divorce cases, the financial impact of divorce is always present. Because divorces can cause a serious financial burden for some individuals, divorce costs should be a key factor when considering whether to divorce and the attorney you use. In fact, one of the most important divorce costs in any divorce case in Mississippi will be attorney’s fees. One would generally think that each party to a divorce is responsible for paying his or her respective attorney out of their own pocket. But think again, because courts are able to award one spouse or the other reasonable attorney’s fees in certain cases.
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