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.

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.

Recently, a company called SafeGuard Marketing Management, Inc. began selling a product called “Divorce Insurance.”  You certainly have to admire the ingenuity of a company to come up with a product like this.  However, the value of the product is questionable both morally and financially.  If you are contemplating marrying the love of your life, but at the same time anticipating a divorce, then you should probably just skip the pain and not get married.  The concept of “divorce insurance” trivializes marriage and in my view, encourages people to make no effort to resolve their differences.  In fact, it would actually provide an incentive to divorce and contribute to the destruction of many families.  If potential spouses want “insurance” against divorce, then their money would be better spent by investing in premarital counseling and marriage counseling, if problems arise.   Here is an article written by an attorney in California that expands further on the topic.

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.

Everyone knows divorces can get pretty expensive.  A department store has come up with a solution to help newly divorced people get back on their feet – a divorce registry.  The department store has figured out that with people basically losing half of their belongings in a divorce, family and friends may want to purchase them a gift, much as they do for a wedding, so that items such as irons, toasters and the like may be replenished.  I’m not sure how successful this will be, but it definitely draws attention to the impact a divorce has on items that are often overlooked.

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 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.

It is nearly impossible to read the news and not see something about Jon and Kate Gosselin, their divorce and their television show, Jon and Kate Plus 8.  The television show follows the Gosselins as they raise sextuplets.  While you cannot help but feel bad for the children as their publicity-hungry parents divorce in the public eye, it is nevertheless interesting from a divorce perspective to see how the dissolution of a marriage in the public spotlight mirrors those of people who quietly divorce without publicity - all are driven at some level by self preservation, the need for security, the need to “win” and greed.

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.

To get a divorce in Mississippi, spouses must either agree on a divorce on the ground of irreconcilable differences or prove that one of the causes for divorce that are specified in Miss. Code Section 93-5-1 exist.  The causes for divorce listed in Section 93-5-1 are:

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.