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.

In Mississippi, for a spouse to prove adultery, there must be clear and convincing evidence of both an adulterous inclination and a reasonable opportunity to satisfy that inclination.  Adultery can be proven by circumstantial evidence because the secretive nature of adultery normally prevents someone from obtaining direct evidence of what occurred behind closed doors.  The evidence of adultery must be logical and be inconsistent with a theory of innocence.  A classic example would be evidence that a husband claimed to be going on a business trip to another state but was seen kissing a woman (not his wife), entering a local motel room her and not leaving until the morning.  Of course, this does not provide any evidence of what occurred in the motel room but the evidence would clearly demonstrate facts inconsistent with a theory of innocence and would likely result in a finding of adultery. 

In a Mississippi divorce case, once a spouse proves adultery, the court will decide issues such as child custody and the division of assets.  So not only does the innocent spouse discover the cheating ways of the adulterous spouse, everyone takes a large financial hit with the asset division.  Sadly, however, the pain caused by adultery does not always end quickly.  Often, the destruction of trust caused by the cheating impacts people’s ability to act reasonably after a divorce is concluded.  This usually manifests itself in an unreasonable level of anger, an inability to communicate with the former spouse and frequent post-divorce contempt actions.  It can even result in a lawsuit being filed against the paramour for Alienation of Affections.  Adultery is possibly the most destructive of the divorce grounds in Mississippi. 

If you are the innocent spouse in an adultery situation, it is important to speak with a lawyer quickly to determine the best way to preserve evidence if you decide to pursue a divorce and so that you will understand what is necessary should you pursue a divorce.  Even resuming normal marital relations with your spouse after learning of an affair may drastically impact your ability to pursue a divorce on the ground of adultery. 

As for Tiger, his adulterous actions may cost him his family, fortune and possibly his career.  He will still remain a wealthy after a divorce, but the image he cultivated over the years that has contributed to his staggering earnings has likely been permanently tarnished.

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.

We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Marital fault should not be used as a sanction in custody awards. Relative financial situations is not controlling since the duty to support is independent of the right to custody. Differences in religion, personal values and lifestyles should not be the sole basis for custody decisions.

If you are involved in a custody situation or are thinking about filing for divorce, a review of the Albright Factors could assist you in undertanding what information is important to the judge.  However, it is critical that you discuss your situation with an attorney immediately if you feel custody will be an issue.  Failing to get sound legal advice as soon as possible could cause you to unknowingly engage in behavior that will hurt your ability to obtain custody.

One of the headlines today is “Kate Accuses Jon of Taking $200,000.”  Apparently, Jon and Kate maintained over $200,000 in a joint account and after being notified that he would no longer be part of the show, Jon withdrew all but $1,000 of the money.  Perhaps Jon had a good reason for the withdrawal, but his “reason” had the effect of leaving his spouse and children with very little to make ends meet.   

When two people separate and anticipate divorce, it is natural to be wary of the other’s intentions and to be mindful of your own financial security, especially when children are involved.  However, it is important to remember that in Mississippi, when money is withdrawn from an account held jointly with your spouse, that the money also belongs to your spouse.  This does not mean withdrawing money is improper (unless a court has prohibited any withdrawals), but you may ultimately have to account for the money if a court decides that you overreached and withdrew more than your share of the marital funds.  In the Gosselin matter, Kate withdrew $100,000 earlier this year and was ordered to return the money.  Now that Jon has done the same thing, it is hard to imagine a court not ordering him to return some or all of the funds to his wife, especially considering she is now raising their eight children alone.

When withdrawing funds from a jointly held account while a divorce is pending, it is important to be reasonable and know that you may be ordered to return all or some of the money, even if it has been spent.  While winning the race to the bank may be beneficial, the benefit may only be temporary.

1.  Natural Impotency

2.  Adultery

3. Being sentenced to any penitentiary, and not pardoned before being sent there

4.  Willful, continued and obstinate desertion for the space of one (1) year

5. Habitual drunkenness

6. Habitual and excessive use of opium, morphine or other like drug

7. Habitual cruel and inhuman treatment

8. Mental illness or mental retardation at the time of marriage, if the party complaining did not know of that infirmity

9. Marriage to some other person at the time of the pretended marriage between the parties

10. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy

11. Either party may have a divorce if they are related to each other within the degrees of kindred whom marriage is prohibited by law

12. Incurable mental illness

Obviously, some of the divorce grounds are going to be more frequently used than others.  For example, adultery and habitual, cruel and inhuman treatment are the most commonly asserted grounds for divorce while others like natural impotency and being related to one another are very seldomly asserted. 

In later posts, we’ll discuss in more detail the individual grounds for divorce and what constitutes each ground.  If you are considering a divorce, a quick review of the allowable divorce grounds should provide an overview of what circumstances need to exist in order to get a divorce without the consent of your spouse.