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.

Sometimes death and divorce sometimes nearly coincide.  Time Magazine recently wrote an article titled “Facing Death and Divorce at the Same Time.”  While focus was placed on Dennis Hopper filing for divorce from his current wife, while at the same time attempting to fight terminal cancer, a valuable lesson may be taken from the article – know what you have and speak with an attorney early.  As the article states, spouses are normally not allowed to disinherit their spouse.  Mississippi follows the same law, making it very difficult to prevent your spouse from receiving a certain portion of your estate.  Of course, this becomes particularly important once a decision is made to divorce, as not too many people want their estate to go in part to a spouse that is in process of divorcing them.

The reason it is important to discuss estate issues with you lawyer as soon as you begin a divorce proceeding is that divorces take months, not days, to finalize.  A husband and wife are often living completely separate lives, including with new significant others, while the finalization of the divorce is far away.  A lawyer knowledgeable in the area of estate planning can walk you through some steps that will minimize the problems that would occur should you pass away during that period.  If a divorce case is pending, you may be limited in what you can because of court restrictions.  However, that does not mean that you can’t take steps to preserve as much of your estate as possible for your heirs.  At minimum, you can come to a plan on what to do as soon as your divorce is final.  You do not want your new wife to find out years later that the ex-wife that ran off with the pool boy just received all of your life insurance because you forgot to change the beneficiary designation.   

 Talk to your lawyer early and ask questions.  Be aware of areas where you may have designated your spouse as beneficiary to an account or insurance plan.  Finally, as soon as you are divorced, have a new Last Will and Testament prepared.

When a couple divorces in Mississippi, all marital property must be divided.  For ease of reference, marital property is essentially all items purchased or accumulated during the marriage by either party, although there are exceptions.  While most people focus on the larger items like vehicles, televisions and furniture, households are filled with all sorts of items that must also be divided.  A person may not realize until after a separation, how much replacement of household items costs.  These are costs that are in addition to attorneys fees and income lost from the other spouse. 

When separating, it is advisable for both spouses, assuming they can agree, to go through the marital residence together and divide all the items room by room.  A list can be created at the same time so each will have a record.  Although a person often is anxious to move on and only focuses on the big items, spending a little time on the little things will save you a lot of money down the road.