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.

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.

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.

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.

Typically, the husband and wife both sign a document called a Joint Complaint in which they ask the court to grant them a divorce on the basis that irreconcilable differences have arisen between them.  Usually there is a written agreement attached to the Joint complaint that addresses the division of assets and debt, provides for custody and visitation and addresses other issues important in a divorce.  Both spouses will also need to complete a financial statement, unless they agree to waive that requirement.  Once the Joint Complaint is signed, it is filed with the Chancery Clerk’s office in the county of either spouse’s residence, if both are Mississippi residents.  If one of the spouses is not a Mississippi resident, then it should be filed in the county where the Mississippi resident lives.  The Chancery Clerk will require the parties to pay a filing fee at the time they file the Joint Complaint. 

Once the Joint Complaint is filed, it must remain on file for at least 60 days before the judge has the authority to grant the divorce.  In comparison to divorces based on grounds such as adultery, the 60 day period is pretty quick.  During that 60 day waiting period, it is important to remember that you are not divorced.  Even though an agreement has been reached on a divorce, no spouse likes to see their husband/wife displaying their new “companion” in public and such actions often result in litigation.

Once the 60 day waiting period is over, your lawyer will meet with the judge to present the written agreement for approval.  The Court will review the agreement, along with the financial statements, to determine if the agreement is adequate and sufficient.  If so, the Court will sign a document called a Judgment of Divorce that, when filed with the Chancery Clerk, will grant the divorce and end the marriage. 

There are other ways to obtain a divorce on the ground of Irreconcilable Differences and there are variations to the process, but this procedure is the most common.  If you are considering a divorce, you should contact an attorney to discuss your options.  Because of its simple procedure, many people try to get divorced without an attorney.  While this may save a little money on the front end, you may end up with a really bad divorce agreement that you cannot change.  It is well-worth the investment in an attorney to make sure your divorce is done properly.