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.

Mississippi Code Ann. 93-7-1 states that, “All bigamous or incestuous marriages are void, and a declaration of nullity may be obtained at the suit of either party.”  A bigamous marriage is one in which one of the parties is already legally married to another.  An incestuous marriage is defined by Miss. Code Ann. 93-1-1, which states:

(1) The son shall not marry his grandmother, his mother, or his stepmother; the brother his sister; the father his daughter, or his legally adopted daughter, or his grand-daughter; the son shall not marry the daughter of his father begotten of his stepmother, or his aunt, being his father’s or mother’s sister, nor shall the children of brother or sister, or brothers and sisters intermarry being first cousins by blood. The father shall not marry his son’s widow; a man shall not marry his wife’s daughter, or his wife’s daughter’s daughter, or his wife’s son’s daughter, or the daughter of his brother or sister; and the like prohibition shall extend to females in the same degrees. All marriages prohibited by this subsection are incestuous and void.

(2) Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.

Marriages that are founded on bigamy or incest are considered void  in Mississippi and may be set aside by either spouse or by third parties.  Once granted, an annulment is as if the marriage never occurred.

Mississippi Code 93-7-3 addresses situations where marriages are “voidable” by spouses but are not necessarily void unless one of the spouses raises the issue.  The statute lists five situations where a marriage is voidable if the situation exists at the time of marriage:

1.  Incurable impotency;

2.  Adjudicated mental illness or incompetence of either or both parties;

3.  Failure to meet licensing requirements if not followed by cohabitation;

4.  Lack of consent, whether through physical means, age, mental acuity, fraud or force, provided that the cause for annulment is brought within six months after discovery;

5.  Wife’s pregnancy by another, as long as the husband did not know of the pregnancy and the action is brought within six months after discovery of the pregnancy.

Children born from marriages that are annulled for reasons other than incest are considered legitimate and are governed by same rules applied in divorces.  Children born of an incestuous marriage are considered illegitimate.  Miss. Code Ann. 93-7-5.

Annulments are not as common as divorces and it is rare that a client is entitled to an annulment instead of a divorce.  However, if you feel that you may be entitled to an annulment, it is critical that you meet with an attorney immediately since there are time limitations as well as potential defenses that may prohibit an annulment.

The laws and procedures concerning the enforcement of child support orders greatly favor the person receiving the money.  But there are defenses.

Normally, the person receiving child  support simply alleges that child support was not properly paid and then it becomes the obligation of the payor to prove that payment was made or to prove a valid defense.  If payments were properly made, then the contempt action is dismissed.  If payments were not made, the person paying must prove a recognized and valid defense to the allegation of nonpayment in order to avoid being held in contempt of court.

One of the main defenses to a charge of contempt (other than proving payment) is that the nonpayment is based on an inability to pay the child support.  There has to be a genuine inability to pay and not a situation where the paying party overextended themselves through frivolous spending.  This means that the party must spend money on only basic needs and then apply everything else to the child support payment.  A defendant that claims inability to pay but on cross examination reveals the amount of money spent of non-necessities (beer, cigarettes, etc.) often leaves the courtroom in handcuffs.

Ambiguity in a child support award can also be a valid defense.  For example, a court order that requires a person to pay “14% of their monthly income” would be unenforceable and too ambiguous since it would be subject to multiple interpretations.  Support awards should contain a specific dollar amount in order to avoid ambiguity in interpretation.

While there are other valid and acceptable defenses, the best defense is to avoid getting behind in the payment of child support in the first place.  Finding yourself on the wrong side of a contempt complaint can result in incarceration, wage garnishment and having to pay the other party’s legal fees.   If finances create the necessity of a “financial juggling act” when monthly bills come due, it is far better to not pay a credit card bill than it is to not pay child support.

When child support payments are set by court order and there is a desire to either increase or decrease the amount of the payments, the person seeking the change must show that a substantial and material change in the  circumstances of either the parents or the child has occurred since the date of the child support judgment.  The process is begun by the party seeking the modification filing a Complaint for Modification and having it, along with a summons and court date, served on the defendant.  In reviewing a request to change the child support amount, the court considers the increased needs of older children, higher expenses, a child’s medical needs, the parents’ financial situation, the health and needs of the parents, the monthly living expenses of the party ordered to pay child support, the parents’ tax obligations, the respective costs of each party’s residence and any other facts and circumstances the court considers relevant.  However, the most common reason for either party seeking a change in child support amount is a change in the payor’s income.

A modification cannot relitigate issues already decided in the original decree.  Modifications must be based on facts that occurred after the court established the original child support order.  If you were not satisfied with the original order then the remedy was to ask the court to reconsider and/or appeal the decision, but there are strict time frames in which that must be done.  Also, the change in circumstances sought to be used as the basis for a change in child support amount must be unanticipated at the time of the original decree.

Lifestyle decisions cannot be used to justify a child support modification.  For example, a payor cannot purchase a new car and then claim he should pay less child support because the car loan is too expensive.  Additionally, a payor cannot have child support reduced because he or she decides to have more children.

Typically, a modification is brought because the person receiving child support discovers that the payor has received an increase in pay.  If so, a substantial increase in pay will justify a modification with the court considering the child support guidelines.  Likewise, if a payor receives a substantial decrease in pay, a downward modification may be appropriate.  However, if the payor created the decrease in pay, the situation may be a little more difficult to address because courts are traditionally reluctant to take child support away from a custodial parent simply because the payor wanted to take a lower paying job.  In those situations, the court is likely to pay close attention to the motivation behind the payor’s actions.

If a modification is sought, it is important to act quickly because a modification is generally only effective from the date of the complaint to modify (at the earliest) or the date of the court order modifying the amount.

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.

This isn’t really divorce related, but worth addressing.  Wesley Snipes looks like he’ll be spending the next few years in prison for tax evasion. He was convicted of tax evasion but while he appealed the conviction he was out on bail.  Now that the appeal is concluded, so is his freedom, at least for a while.  While Snipes intentionally sought to evade taxation, and will pay a heavy price, normal people can find themselves with a financially devastating tax situation if they neglect their taxes.  While not a criminal offense normally, failing to file returns or to pay the required tax results in penalties and interest and a debt collector that you really can’t hang up on.  In the middle of a divorce, the last thing a divorcing person needs is delinquent tax debt.  File your returns, pay your taxes and avoid significant financial consequences.  Remember – the IRS will still be married to you even if your spouse is not.

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.

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.