M. Devin Whitt
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From cases involving work-related injuries to those involving injuries arising from car accidents, personal injury litigation is a constant staple in our courts today. Generally, the result of these types of legal matters is either (1) an agreed-upon, financial settlement between the parties or (2) a money damages judgment awarded by a court of law. These personal injury “awards,” including workers’ compensation awards, are often paid out over time. So the remainder, or the outstanding amount of such monetary settlements and awards, still owed at the time of divorce can garner extra attention in divorce proceedings when it comes to property division.

As mentioned in a few of my earlier posts, Mississippi is an equitable distribution state whereby chancery courts equitably, or fairly, divide marital property–or property acquired or accumulated during the marriage or for the benefit of the marriage–upon divorce. Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). The issue then arises whether a particular spouse’s personal injury award, settlement money, or any remainder thereof constitutes marital property subject to equitable distribution.
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The vast majority of my law practice involves divorce and family law matters in Mississippi. As a result, a lot of the work I perform goes through the Mississippi chancery courts, rather than state circuit courts. When I tell many of my clients that their case will be heard in chancery court, they often ask me what’s the difference between the two types of state courts. The distinction is not always the easiest to understand. In short, the Mississippi court system is comprised of both courts of law and courts of equity. Some courts focus on what is “fair,” while others focus on what is “just” under applicable law. Mississippi chancery courts–or family law courts–are courts of equity, while state circuit courts are courts of law.chancery.jpg
Chancery courts originated in medieval England. The Chancery dynamic is one common law holdover that played a considerable role in legal jurisprudence in the early years of the United States. These courts were developed in England to help fill the inequitable voids created or fostered by the English law courts. English Kings of the time commissioned councils led by Lord Chancellors to oversee and resolve inequities in the law, or those created by a lack of governing law. And interestingly, lawyers that engaged in Chancery practice were known as “solicitors in equity.”
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In most divorces, there is almost always some sort of property dispute–insofar as it relates to classifying marital and separate property for the purpose of property division. Depending on the asset(s) at issue, these disputes can be very complex and taxing on both the courts and parties involved. Over the years, Mississippi courts have adopted or developed tools to help Chancellors decipher what constitutes “marital” property in divorce/property division cases. One of these tools is known as the “family-use” doctrine.

Remember, Mississippi is an equitable distribution state whereby only marital property is subject to property division. Accordingly, a spouse’s ownership or title to certain property is not outcome determinative of each party’s rights to that property in light of a divorce action–there is no presumption of ownership to titled spouses in Mississippi divorces. Pearson v. Pearson, 761 So. 2d 157, 163 (Miss. 2000). Thus, the first step Mississippi courts go through in property division is classifying each spouse’s property to determine what is and is not “marital” property. And this is where the “family-use” doctrine kicks in.
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Adultery is one of the most utilized grounds for divorce. As unfortunate as it may sound, many spouses commit adultery. There are countless psycho-social studies and surveys aimed at figuring out “why” spouses engage in adulterous activity. But, in the divorce context in Mississippi, why a spouse commits adultery is not really all that important. When considering divorce on grounds of adultery in Mississippi, a person should know (1) the definition of “adultery” and (2) how to prove it.

Defining Adultery

Most people associate “cheating” with adultery. But, “cheating” is not necessarily always “adultery,” because “cheating” is subject to varying interpretations. To some, “cheating” may merely involve intimate conversation with, or thoughts about, another person, without any physical contact; while others think only physical, sexual contact with another person qualifies as “cheating.” Mississippi law adopts the latter in its definition of “adultery.” Mississippi law defines adultery as the “voluntary sexual intercourse on the part of either spouse with a person other than his or her own spouse.” Owen v. Gerity, 422 So. 2d 284, 287 (Miss. 1982) (emphasis added). Also, it does not matter how frequent, or infrequent, a spouse commits adultery. As the Mississippi Supreme Court has explained, “a one night stand does not make [] sexual misconduct any less adulterous.” Davis v. Davis, 832 So. 2d 492, 496 (Miss. 2002). So, adultery involves sexual intercourse with a third-person, and one instance of such conduct is enough to be characterized as adultery in Mississippi.
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As a Mississippi divorce and family law attorney, I advise my clients on both legal and non-legal issues on a daily basis. Through my professional experience and my personal interactions with married individuals, I have learned that maintaining a happy and satisfying marriage can be really challenging at times. Often, spouses will want some personal space and time alone to themselves apart from their significant other. And in extreme cases, spouses may physically separate during the marriage whereby one spouse moves out of the home and lives elsewhere. This separation between spouses could produce legal effects and consequences in Mississippi–one effect being a claim by one spouse for separate maintenance.

images.jpgSeparate maintenance is a court-made equitable, monetary remedy awarded by Mississippi courts in the event that spouses have separated and one spouse is financially dependent on the other. Lynch v. Lynch, 616 So. 2d 294, 296 (Miss. 1993). In other words, separate maintenance is not a statutory remedy enacted by the Mississippi state legislature. Instead, it is a concept developed by the courts over time that has become a fixture in Mississippi family law. In fact, the concept of separate maintenance stems from Mississippi’s public policy recognizing a husband’s continued duty to financially support his wife and family even during periods of spousal separation–especially when the wife is the non-earning spouse and children are involved. Gray v. Gray, 484 So. 2d 1032, 1033 (Miss. 1986). The underlying purpose behind this duty is “to provide, as nearly as may be possible, the same sort of normal support and maintenance for the wife . . . as she would have received in the home, if the parties had continued normal cohabitation . . . .” Germany v. Germany, 123 So. 3d 423, 429 (Miss. 2013). So, courts will award separate maintenance to allow the recipient spouse to maintain a standard of living that would have existed absent the spouses’ separation. In the end, Mississippi courts enforce this steadfast public policy and marital duty to support one’s spouse and family during marital separation through awards of separate maintenance.
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It may come as a surprise to some, but a divorcing spouse’s financial or ownership interest in a business may be classified as “marital property” by a court when dividing property in a divorce. As an equitable distribution state, Mississippi courts are required to divide marital assets fairly, or “equitably,” between divorcing spouses. Marital assets may include any economic or ownership interest in a business, especially such interests in a closely-held business. Closely-held businesses often include family businesses or other small businesses whereby a spouse is a sole proprietor, shareholder or stockholder, partner, or otherwise owns a financial or ownership interest in the business. Like any other property owned by a spouse in a divorce, in terms of property division, Mississippi courts first classify a spouse’s business interest as marital property, separate property, or a mixed asset (part marital, part separate property). valuation.jpg

A business interest acquired by a spouse during the marriage or purchased with marital funds may be considered marital property. MacDonald v. MacDonald, 698 So. 2d 1079, 1083-84 (Miss. 1997). For example, where a husband starts a new business, joins a partnership, or even buys stock in an already existing business during the marriage, the husband’s interest in any of those situations will likely be classified as marital property, and it may be subject to equitable distribution in a divorce. On the other hand, a business interest acquired and owned by a spouse prior to the marriage will generally be classified as separate property. In addition to business interests owned prior to the marriage, any business interest acquired by gift or inheritance during the marriage may be classified as separate property. McKissack v. McKissack, 45 So. 3d 716, 718 (Miss. Ct. App. 2010). But remember, even separate property–including gifts and inheritance–may be classified, or converted into, marital property if it is commingled or designated for familial use during the marriage. Lastly, a business interest may be classified as a mixed asset–a mixture of separate and marital property. The most common example of when a business interest may be classified as mixed property is where the business interest owned prior to the marriage (otherwise classified as separate property) appreciates–or gains financial value–during the marriage. As a result, the “[a]ppreciation of the value of any non-marital asset [separate property] may be taken into account to arrive at a fair division to the extent the non-titled spouse had made a contribution toward the appreciation of value” or where the owning-spouse’s efforts during the marriage caused or contributed to the business interest’s appreciated value. Carrow v. Carrow, 642 So.2d 901, 907 (Miss. 1994). In such a case, the appreciated value of a business interest can be calculated by subtracting the value of the business interest at the time of the marriage from its current value.
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In the wake of a divorce, it is not uncommon for spouses to start claiming what is “their” individual property. However, simply “claiming” property as your own does not make it so. Property that a divorcing spouse thinks he or she independently owns–even pre-marital property–may very well be “marital” property subject to property division in Mississippi. In Mississippi divorce cases, one of the key determinations to be made is whether the property owned by the parties is “separate” property or “marital” property.

his hers ours.jpgAt common law, states treated property in a divorce as either “titled property” or “community property.” “Titled property” (or “separate property”) states maintained that property titled to, or legally owned by, an individual spouse, separate and apart from the marriage, was exempt from property division in a divorce. As a result, the titled spouse was able to wholly retain the property after the divorce. On the other hand, “community property” states treated all property owned by both spouses as part of the “community” or marriage. Consequently, regardless of which spouse held title to the property, the property owned by both spouses in community property states was generally subject to equal (50/50) division in a divorce. These two property division concepts are still prevalent in many states today. But, Mississippi is neither a true “titled property” state nor a true “community property” state. Instead, as mentioned in one of my early posts, Mississippi is known as an “equitable distribution” state, which could be seen as a mixture of the two property division doctrines.
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As I explained in an earlier post, alimony is still alive in Mississippi, and it is definitely something a person should consider when contemplating a divorce. Again, when people hear the word “alimony” they typically think of permanent alimony. But, what many people do not know is that Mississippi recognizes temporary spousal support as well, such as rehabilitative alimony.

Mississippi courts have recognized rehabilitative alimony, also known as “transitional” or “time-limited” alimony, since 1995. As the Mississippi Supreme Court recently noted, rehabilitative alimony “is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” Pierce v. Pierce, 132 So. 3d 553, 565 (Miss. 2014) (quoting Hubbard v. Hubbard, 656 So. 2d 124, 130 (Miss.1995)). In other words, rehabilitative alimony is temporary, transitional monetary support awarded to a needy spouse while he or she attempts to re-enter the workforce and obtain a viable income to support himself or herself following the divorce. As a result, in many instances, rehabilitative alimony is available to a spouse who put his or her career on hold while taking care of the marital home; for example, the stay-at-home spouse. Lauro v. Lauro, 847 So. 2d 843, 849 (Miss. 2003). However, in some cases, rehabilitative alimony has been awarded to a divorced spouse who maintained a full-time job during and after the marriage. See Brady v. Brady, 14 So. 3d 823, 826 (Miss. Ct. App. 2009).
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When I talk with clients about divorce, I have heard many say “I understand there is no alimony in Mississippi.” Many of these people show up in my office seeking help with a divorce, and unfortunately, they are mistaken because alimony is still alive and well in Mississippi. In this regards, one of the most stressful issues that many of my clients face is the potential of having to pay alimony to their spouse in the event of a divorce. Many clients simply do not understand why they have to pay money to support a person to which they are no longer married. As a result, alimony is often both a confusing and frustrating issue in many divorce cases.

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Alimony, also known as spousal support, has been a concept embraced by Mississippi law since 1848. DEBORAH BELL, BELL ON MISSISSIPPI FAMILY LAW § 9.01[5] (2d ed. 2011). The purpose of alimony is to provide support for a financially-dependent spouse, albeit the divorcing wife or husband. Mississippi law maintains a strong public policy in favor of providing financial support to divorcing spouses who would otherwise be at risk of becoming destitute–or those who are seriously at risk of not having the financial means to provide for basic living necessities. So, to be clear, the purpose of alimony is not to provide financial support to a divorcing spouse so that the spouse may maintain a comparable standard of living that existed during the marriage, but to provide monetary support to avoid placing persons in poverty following a divorce. That being said, there are four types of alimony recognized in Mississippi: (1) permanent alimony, (2) lump sum or “settlement” alimony, (3) rehabilitative alimony, and (4) reimbursement alimony. See BELL ON MISSISSIPPI FAMILY LAW § 9.02. The most prominent form of alimony is permanent alimony.
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I routinely deal with cases involving a spouse who wants a divorce because he or she learned that the other spouse cheated or committed some other type of marital misconduct. Often times, when a client hires me to help with a fault-based divorce, especially where the ground for divorce is adultery, one of the first questions I ask my client is: Did you forgive your spouse? A “yes” to this question can certainly complicate an otherwise clear-cut divorce. In Mississippi, forgiving–or condoning–a spouse’s past marital transgressions may legally bar a complaining-spouse’s right to a divorce. As a result, condonation is one of most often used defenses to fault-based divorce in Mississippi. images (1).jpg

Condonation occurs when a spouse voluntarily forgives the other spouse for committing some sort of marital misconduct. Where a spouse forgives the other’s misconduct, there is an unspoken promise that such misconduct will not recur. So even if the complaining-spouse condones or grants forgiveness for the other spouse’s misconduct, such forgiveness is conditioned on the offending-spouse’s continued good behavior. For example, if a spouse forgives the other for committing adultery, then the other spouse either continues the extramarital affair or commits adultery again, then the prior condonation or forgiveness for the first instance of adultery would likely be invalid. More so, it is important to note that condonation is most often used as a defense against divorce based on grounds of adultery whereby the offending-spouse claims that the complaining-spouse forgave him or her for an extramarital affair. However, the condonation defense is not limited to just adultery. For example, the Mississippi Court of Appeals in Smith held that the defendant’s wife did not condone his excessive gambling habit simply by accompanying him to the casino where he regularly gambled. Smith v. Smith, 90 So. 3d 1259, 1266 (Miss. Ct. App. 2011).
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