A recent survey has indicated that marriage rates are at an all time low.  In the 1960’s the median age for marriage was around 20 but now, the median age has risen to 26 for women and 29 for men. Rising divorce rates have contributed to the statistics as well as economic concerns.  What is most troubling though is that the survey reflects a sense of apathy towards marriage in general as evidenced by this quote: “A Pew survey last year determined that more than four in 10 Americans younger than 30 consider marriage passe.  ”They see it as an obselete social environment,” said D’Vera Cohn, a Pew researcher who co-wrote the analysis.”  Unfortunately, out-of-wedlock births have not followed the same path.

A study from the United Stated Department of Health and Human Resources shows that non-marital births are at greater risk of low birth weight, preterm birth and infant mortality than children born to married women.  The study also shows that children born to single mothers have more limited social and economic resources than those born to marriage.  Yet the 2007 data used in the study shows that  4 in 10 children were born out of wedlock, reflecting a 5% increase in unmarried birth since 2006, a 21% increase since 2002 and an 80% increase since 1980.

When you look at the declining marriage statistics, the changing view of marriage by young Americans and skyrocketing out-of-wedlock births, you begin to see a grim portrait of America’s future.  It appears that Americans have slowly moved toward a more narcissistic existence, one in which self-satisfaction comes first and commitment to family comes second. Why else would the statistics show declining marriage rates yet rising birth rates among unmarried people?  One only has to hang around your local family court to see the problems that result from out-of-wedlock births.  Court are jammed with single mothers begging for financial assistance from absent fathers while vehemently opposing the father’s efforts to have a relationship with his child.  If this trend continues, marriage will soon be a minority as will children born to marriage.   One has to wonder what the long term effects of this trend will have on the country if it continues since the trend sheds light on a much larger issue not addressed by the statistics – the decline of traditional views of morality.

When does online or text flirting become cheating? That is not a simple question to answer in the context of a divorce but a recent article has articulated nine red flags that may indicate that more than flirting is occurring.  While none of the listed factors are proof that a spouse is cheating, they are an excellent indicator that more investigation is needed. In fact, a study indicated that the Internet is typically the first step toward the ultimate goal of real-life cheating.  If you suspect your spouse is cheating, call us immediately because you may need to act quickly to preserve evidence critical to your divorce.

Can’t I get a divorce by just filling out some forms?  I saw online where I can get the divorce forms for a lot less than the cost of a lawyer, is that a bad idea?  These are questions that come up periodically and the answer to both questions is “yes.”  To explain, a no-fault divorce can be very simple for a lawyer to put together for a client and can take very little time by the lawyer to do so.  But, the final product you see is the culmination of years of education, experience and familiarity with the differing requirements of chancery court judges along with careful drafting of documents that address the client’s unique circumstances  For divorces, there is no “one size fits all” form.

Proper preparation of divorce documents is critical.  Lawyers look at both the immediate goal of obtaining a divorce as well as the long-term consequences of the divorce judgment.  Usually, parties that try to get divorced without the benefit of a lawyer create documents that are so awful, they often end up being completely unenforceable or void.  If that happens, it is almost certain that the parties will end up paying much more money in legal fees to repair the mess that they would spent to do it correctly in the first place.

The decisions you make in a divorce, and the documents that result, can control aspects of your family for tens of years and drastically impact your finances and property.  Nothing that important should be relegated to a do-it-yourself kit.  While there are certainly legal documents you can create without a lawyer that will serve you well, in a divorce, there are no short cuts.  Do it right the first time to avoid major problems in the long-term.

When courts decide how to divide property in a divorce, the court must first classify each asset as either marital or separate property, place a value on the property, divide the property based on the factors set out in Ferguson v. Ferguson, 639 So. 2d 291 (Miss. 1994) and then award alimony if necessary.  This process is referred to as Equitable Division, not to be confused with equal division.

Marital property is essentially any property that was acquired during the marriage, although there are variations and exceptions to that general rule. Normally gift and inheritances are considered separate property as well as assets purchased or acquired before marriage.

The factors the Court uses to determine how to divide property classified as “marital” are:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:

a. Direct or indirect economic contribution to the acquisition of the property;

b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and

c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.

2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.

3. The market value and the emotional value of the assets subject to distribution.

4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;

5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;

6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;

7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,

8. Any other factor which in equity should be considered.

As you can see by the factors, the process is not an exact science and the result is unique to the individuals before the Court.  It is important for divorcing individuals to be aware of the factors the court is required to consider so that they will better understand the process and be able to assist the attorney in focusing on those facts necessary for equitable division.

Unless you have been living in a hole with no access to news, you have undoubtedly heard of the scandal involving Congressman Anthony Weiner, who recently resigned after it was revealed that the married congressman had sexual conversations with females, sent females lewd photographs of himself and then publicly blamed the fiasco on a “hacker.” What started as a foray into the temptations of internet anonymity and access, ended with public embarrassment, career destruction and possible divorce. Weiner’s public self-destruction teaches the average married person a valuable lesson in trust, proper marital boundaries and the use of technology to facilitate “internet infidelity.”

Engaging in sexual conversations, flirting and conversing with someone other than your spouse via email, Twitter, Facebook or text messaging destroys the trust between spouses. Often, the ease of communication can lead to very intimate “electronic” relationships that give the appearance of infidelity.  In my opinion, the presence of an “internet infidelity” can be just as devastating to a marriage as a physical affair because the innocent spouse will always believe that a physical affair has occurred or is in the process of occurring. Once the suspicion of an affair takes hold, a divorce complaint often follows since the discovery of adultery usually begins with suspicion.

Adultery is a ground for divorce in Mississippi and is defined as “voluntary sexual intercourse of a married person with a person other than the offender’s spouse.” Owen v. Gerity, 422 So. 2d 284, 287 (Miss. 1982). Because of the secretive nature of adultery, direct proof is not required and one may prove adultery by circumstantial evidence. Essentially, to prove adultery by circumstantial evidence, the proof must show (1) a spouse’s adulterous nature, which usually involves infatuation or adulterous inclination and (2) a reasonable opportunity to act on the infatuation or inclination.  Facts that support a finding of adultery have been secretive actions by a spouse, frequent telephone calls and letters to a suspected paramour.  Clearly, engaging in intimate conversations with someone not your spouse over the internet, by text message or other means will likely satisfy the element of proving infatuation or adulterous inclination.  However, unless you are able to prove a reasonable oppurtunity to act on the infatuation or adulterous inclination, then you will be unable to obtain a divorce on the basis of adultery (unless there is an admission or some form of direct proof).

Engaging in actions such as those committed by Anthony Weiner may not constitute grounds for divorce alone, but it is likely that with proper investigation, proof of reasonable opportunity may be discovered.  If you suspect your spouse is committing adultery and you are considering divorce, it is important that you speak with a lawyer before confronting your spouse.  With proper legal advice, steps may be taken to preserve evidence and to make sure you are able to present the strongest case possible. Additionally, if you suspect adultery, it is critical that you do not resume a sexual relationship with your spouse because if you do, the law considers you to have forgiven your spouse of the adultery and you will be unable to use the adultery as a ground for divorce. You may ultimately decide that forgiveness is the best course of action for your family but you should first seek legal advice from a competent divorce attorney so that you have the knowledge to make an informed decision as to your marriage.

One of the most overlooked issues in divorces are the potential tax consequences.  Often, spouses are so focused on just getting divorced that they take actions that are not in their financial best interests.  It is also common for spouses to be so emotionally distraught over the course of a divorce that they refuse to consider options that will benefit them when filing their tax returns.  One example is when spouses have the option of filing a joint return but stubbornly refuse to do so, without realizing that the tax burden could be lessened for both parties.  Here is a good article from Time.com that addresses some important taxation issues in divorces.  And since it is tax time, here’s another that addresses some common mistakes people make in filing their annual returns.

Divorce can be devastating financially as incomes are split, property is sold at a loss and the financial burden of single parenting takes effect.  For this reason, the financial toll must always be considered when couples are considering a divorce.  According to a recent article on findings by the Census Bureau, a study over a period of 15 years showed that couples who remained married during that time built up nearly twice the net worth of people who remained single.  Considering the visible toll on finances caused by divorce and the findings by the Census Bureau, a stark picture is painted for those that end their marriages.  Of course, situations differ among couples and a thorough evaluation of your finances is a critical component in understanding the pros and cons of divorce and reconciliation.

The typical scenario when a spouse learns that the other has done something that destroys the marriage is that the innocent spouse meets with a lawyer, who guides the spouse through the divorce process.  Occasionally, though, you find that while listening to the “outrage” that a client expresses over learning that their spouse has had an affair you also learn that your “innocent” client has also been having an affair.  So what do you do if a client wants a divorce but both spouses are committing adultery?  An agreed resolution on the ground of Irreconcilable Differences would be the preferable outcome, but litigation may be the only option in some circumstances.

The Mississippi Supreme Court recently addressed a similar scenario in Jenkins v. Jenkins.  In Jenkins, the court was faced with a situation where the lower court granted a person a divorce on the ground of Habitual, Cruel and Inhuman Treatment.  The guilty spouse tried to defend the charge by claiming the defense of “recrimination”, which is a common-law defense that states if each party proves a fault ground for divorce then neither is entitled to a divorce.  The defense of recrimination has been altered by Miss. Code Ann. 93-5-3, which allows a court to grant a divorce, even if both parties prove a fault ground for divorce, by determining which spouse’s actions constituted the proximate cause of the destruction of the marriage.  The Mississippi Supreme Court determined that although the wife admitted committing adultery, the trial evidence showed that the husband’s habitual, cruel and inhuman treatment was the cause of the divorce, not the wife’s adultery, and that the lower court properly denied the husband’s recrimination defense.

Although a scenario where both parties are committing actions that constitute divorce grounds is not the preferable situation, a spouse may still be able to obtain a divorce without his/her spouse’s consent if the facts are supportive.  If you find yourself in this situation, speaking with an attorney to help analyze the proximate cause of the destruction of the marriage very early on is vital.

A very important, but often overlooked, tool in avoiding nasty divorces is a thorough prenuptial agreement.  Here is an excellent article on the need for prenuptial agreements in estate planning but it is just as applicable in the divorce context.

In divorce cases, there is a common misunderstanding among divorcing spouses about the taxation issues associated with payments for both child support and alimony.

Child support is defined by the Internal Revenue Code as a “payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payor spouse.”  26 U.S.C.A.  71(c)(1). Basically, child support is a payment ordered in a divorce decree that the divorce decree labels as child support.  There are situations where payments labeled as “child supprt” may not qualify as child support but we won’t get into those right now.  The tax code treats any payment of child support, so long as it meets the requirements of Section 71, as a non-taxable event, meaning that the receiving spouse does not include the child support in gross income (which means it is received tax-free) and the paying spouse receives no deduction for the payment of child support.  26 U.S.C.A.  71.

Alimony, on the other hand, is considered income to the receiving spouse (must pay taxes on it just as if earned at a job) and may be considered a deduction by the paying spouse.  26 U.S.C.A. 71.  There are situations where the Internal Revenue Service may consider a spouse to be receiving alimony even if the payment is not called alimony.  Obviously, this would be a huge problem if the receiving spouse had not been including the alimony payments on her income tax return.  We’ll get into alimony is more detail in a later post.

Many people try to prepare their own divorce documents to save money on legal fees but often their efforts to save money result in unintended tax consequences.  It definitely pays in the long run to get the divorce documents drafted correctly.  You do not want to find out during an audit that the tax-free money you’ve been receiving is not really tax-free.