Mississippi Family Law Blog

Dodger owners spending more on divorce than infield salaries

Celebrity, high-profile divorces always bring out the worst in some folks. Well, the owners of the Los Angeles Dodgers are going through a rather nasty, public divorce and have testified in depositions that the legal and accountant fees for the divorce could be as high as 19 million dollars. Unbelievable. In one recent hearing, seven attorneys showed up, according to a news report. Both Frank and Jamie McCourt have hired multiple law firms to represent them in their divorce. If they end up spending that much money on lawyers and accountants, it will be one of the most expensive divorces in California history.

Information provided by Robert Kisselburgh, Mississippi Divorce Attorney

Cohabitation prior to marriage has little impact on success of marriage

A recently released study found that living with your fiance prior to marriage has little impact on whether the marriage will last or not. Although previous research claimed couples living together prior to marriage increased their chances for divorce, this study showed a different result.

According to the National Center for Health Statistics, the study was based on data from almost 13,000 men and women. The study found divorce rates for those who move in together after deciding to marry are very similar to couples who never lived together before marriage. However, divorce rates were higher for those who lived together prior to deciding to marry.

Source: New York Times

Information provided by Robert Kisselburgh, Mississippi Divorce Lawyer

Divided Mississippi Court of Appeals upholds equitable division of property in void marriage

In my last post, I spoke about the Chancery Court annulling a 37-year marriage because the wife failed to divorce her first husband when she married her second husband. But the question remained, why did the current husband, after 37 years of marriage, not agree to a divorce rather than fight for an annulment. The answer was money. If the husband agreed to a divorce, then the marital estate would be divided on an equitable basis. However, if there was no valid marriage in the first place, the husband could argue the wife was not entitled to an equitable division of the property. That is what he did.

Mississippi law, according to the husband, required a party to a void marriage to have entered into that marriage in good faith before the chancellor could award any form of equitable relief. His position was the wife did not enter into this marriage in good faith given she knew she was not divorced from her first husband at the time of the marriage. However, the Chancellor, nor the Court of Appeals, was swayed by this argument. It held that “good faith is not required under Mississippi law to support an equitable distribution of property acquired during a void marriage.” The Court said, “where parties live together without benefit of marriage and where, through their joint efforts, accumulate real property or personal property, or both, a party having no legal title nevertheless acquires rights to an equitable share enforceable at law…. Such a remedy is only available where ‘the couples had … either been married or contended to have married.’”

Continue reading "Void marriage--Who gets the property in Mississippi?" »

37 year "marriage" annulled in Mississippi

After 37 years of marriage and rearing four children, the wife files for divorce. Husband responds with a claim of annulment, saying he and his wife were never legally married given she failed to divorce her first husband. Sound crazy. Well, it happened in a Desoto County Chancery Court and the Mississippi Court of Appeals handed down its decision in this case this week.

In Cotton v. Cotton, the Mississippi Court of Appeals affirmed a decision concerning property division in an annulled marriage. The Chancellor granted the annulment because the wife was never legally divorced from her first husband, who she married at 16, and therefore her marriage to her current spouse, at age 23, was void. Despite the fact that the couple had lived as husband and wife for 37 years and raised four children, their marriage legally never occurred. Harsh? Not really.

In Mississippi, the Mississippi Code Sec. 93-7-1 states that a person may obtain an annulment of the marriage, as opposed to divorce, if the following causes existed on the date of the marriage:

1. Incurable impotency;
2. Insanity;
3. Failure to meet licensure requirements, if there has been no cohabitation;
4. Incapacity to consent due to age or lack of understanding;
5. Physical incapacity to enter into the marriage state;
6. Consent obtained by force or fraud; or
7. The wife was pregnant by another on the date of the marriage without husband's knowledge.

For grounds 4 through 7, the suit for annulment must be brought within six months of the time the ground is or should have been discovered. For ground 2 above, the suit must be brought within six months from the date of the marriage.

However, bigamous or incestuous marriages are void marriages and may be annulled at any time. This is how after 37 years of marriage, Mr. Cotton was able to obtain an annulment given Ms. Cotton had not divorced her previous husband at the time she married Mr. Cotton.

Why, after 37 years of marriage, would the husband ask for an annulment as opposed to agreeing to a divorce? Well, the answer appears to be money. The husband argued that given there never was a marriage, the couple's property should not be equitably divided as is required in the case of married couple's divorcing. The Court did not rule on the issue of the annulment as the wife failed to raise the issue in cross-appeal. The husband only appealed the court's division of the property. In my next post, I will discuss the court's ruling concerning the division of the property in a void marriage.

Mississippi attorney Robert Kisselburgh represents clients in divorces throughout the state of Mississippi. If you have questions or would like to discuss your case, contact us at 877-601-4040, 601-936-4040, or contact us online.

Billboard photos could cause problems in divorce

Hell hath no fury like a woman scorned. Usually that statement is in the context of a wife scorned by her husband. However, over the last week, billboards appeared in New York, San Francisco, Atlanta, and other cities showing a romantic photograph of the co-president of Oracle, Charles E. Phillips, Jr., with a woman. The woman was not his wife, but his ex-mistress. Mr. Phillips came out on Thursday to say the woman on the billboards, YaVaughnie Wilkins, was his mistress of 8 1/2 years, who he has since ended a relationship with.

The first thought is Mrs. Phillips spent some money to embarrass and get back at her husband. Well, in this case, the scorned lover was the ex-mistress, according to the New York Times, who paid to have the billboards placed in an attempt to embarrass Mr. Phillips and no doubt cause him problems with his current divorce proceedings. Seems Mr. Phillips has another girlfriend and Ms. Wilkins was not happy about being sent packing. Ouch.

I think the divorce settlement discussions just heated up with Mr. and Mrs. Phillips.

Reported by: Robert Kisselburgh, Mississippi Divorce Lawyer

Mississippi House says no to adding gambling as grounds for divorce

By an overwhelming vote of 74 to 40, the Mississippi House of Representatives killed a bill that would have added compulsive gambling as the 13th fault based ground for divorce in Mississippi.

Reported by Robert Kisselburgh, Jackson Mississippi Divorce Attorney

Court to decide sanctions over claims Barr lied under oath and destroyed evidence

In a follow-up to an earlier post, famous mystery writer Nevada Barr was back in a Hinds County Chancery courtroom today to face possible sanctions for lying under oath and destruction of evidence in her previous divorce case. According to the Clarion-Ledger, Barr admits she lied about her affair during her deposition. However, she also admitted she destroyed her computer when the other side sought its production.

This is serious stuff and the call for whether she should be sanctioned came from the Mississippi Supreme Court in its decision on Barr's case. Then presiding Justice Oliver Diaz wrote:

"When faced with such egregious misconduct, courts are obligated to consider sanctions that are severe enough to deter others from pursuing similar courses of action. The chancellor in this case did not satisfy that obligation and abused his discretion by not addressing Nevada's misconduct."

Chancery Judge Dewayne Thomas will decide Barr's fate.

Source: Clarion-Ledger

Reported by Robert Kisselburgh, Mississippi Divorce Attorney

Washington husband jailed for hiring hitman to kill wife

A Washington man was arrested after paying a man $5,000 to kill his wife after she filed for divorce. According to the article, the wife feared her husband due to previous acts of violence.

This article highlights an important issue--domestic violence. If you are a victim of domestic violence, get help now. There are a number of agencies that can help you. Don’t stay in a home where you are a victim of abuse and end up being a statistic in next year’s domestic violence report. The following agencies in Mississippi can help you:

Mississippi Center for Violence Prevention Crisis Line: 1-800-266-4198

Mississippi Coalition Against Domestic Violence Crisis Line: 1-800-898-3234 or click here to contact them online.

Catholic Charities Hotline: (601) 366-0222 or 1-800-273-9012

Mississippi Attorney General's Domestic Violence Prevention Unit: (601) 359-4251

Jackson Police Department Crisis Intervention Units: (601) 960-1433 (Westland Plaza, 813 Ellis Ave.); and (601) 960-1389 (327 E. Pascagoula St., Suite 504)

National Domestic Violence Hotline: 1-800-799-SAFE (7233)

Google search reveals Michigan man has 3 different wives

Faye Miller was having some marital problems and went to counseling to avoid a divorce. Her therapist suggested she do some digging on the internet concerning her fears about her husband. He was a podiatrist who she thought "was working a lot of hours and away at medical conferences." It turns out he was away a lot given he had 2 other wives, one in California and one in Canada. Her research turned up that the doctor was married to one woman when he married Faye and then married another woman in Canada after they were married. Well, the battle is on. She has filed for an annulment and also seeks child support for their two children. The husband claims it was just a misunderstanding. You can read more about the case here.

The Kisselburgh Law Firm represents Mississippi residents in divorces. If you or a loved one are contemplating a divorce, call now and schedule an appointment to discuss your legal rights.

Text messages and e-mails leave a trail for divorce lawyers to follow

It appears there are many lessons to learn from Tiger Woods recent publicized problems. One is the hazards of text messaging with a paramour while you are married. The New York Times recently published an article entitled, "Text messages: Digital lipstick on the collar." The article highlights the problem of texting if you are doing something you shouldn't be doing and how that evidence can and will be used against you in court. Several recent high-profile cases highlight the problems faced by spouses engaged in adultery in this digital world.

The Kisselburgh Law Firm represents individuals in divorces in Mississippi. If you or a loved one is contemplating a divorce, contact us to further discuss your legal rights.

Alienation of affection in Mississippi

With all the gossip, speculation, and rumors associated with Tiger Woods and his transgressions (a/k/a alleged affairs), the issue of alienation of affection is in the news. In fact, CNN published an article on alienation of affection and how Mississippi is one of seven states that still recognizes this tort. So what is alienation of affection?

In Mississippi, if a person has an affair with a married person that causes the breakup of their marriage, the other spouse can sue the paramour (the person having the affair with the married spouse) and collect money damages from that person. Two years ago, the Mississippi Supreme Court upheld a jury verdict awarding a man $754,000.00 against his wife's lover.

The Kisselburgh Law Firm represents Mississippi residents in divorce cases including those involving alienation of affection. If you or a loved one are contemplating a divorce, call now and schedule an appointment to discuss your legal rights.

Social Security and Divorce--who gets the benefits?

The Wall-Street Journal recently posted an article discussing social security and divorce. The questions included:

How long do you have to be married for a person to collect social security benefits? At least 10 years, you can't be remarried, you have to be at least 62, and your ex-spouse must be eligible for social security benefits.

Does my ex-spouse getting social security benefits reduce my benefits? No.

Can I re-marry and still get my ex-spouse's social security benefits? No.

The Kisselburgh Law Firm represents individuals in Mississippi going through a divorce. If you are contemplating a divorce, contact us at 601-936-4040 or online to discuss your legal rights.

New York Times advice on divorce

In a recent series, the New York Times ran some articles offering financial and practical advice for those going through or contemplating a divorce. Here are the articles:

Financial Decisions to Make as You Divorce
Experienced in Love and Money.

More Fathers get custody of children in divorces

In Mississippi, as well as other states, more women are working and becoming the primary breadwinner in the family. One downside some women are finding in working so hard is that their husbands are getting primary custody of the children in a divorce. In a recent New York Times article, it was stated:

There are now 2.2 million divorced women in the United States who do not have primary physical custody of their children, and an estimated 50 percent of fathers who seek such custody in a disputed divorce are granted it.

With more women in the workforce and some fathers opting to stay at home to care for children, this trend will continue.

Reported by: Robert Kisselburgh, Mississippi Divorce Lawyer

Dividing personal property in a divorce

A fellow divorce attorney from South Carolina, Ben Stevens, wrote a nice post about dividing personal property in a divorce. Check it out here.

Lamar County divorce case partially remanded back to Chancellor for third look

Sometimes a case just never ends. That has to be the feeling for a divorce case out of Lamar County, Mississippi. Last week, the Mississippi Supreme Court sent the case back to the Chancellor for a third trial. In Lowrey v. Lowrey, the original final judgment of divorce was signed in September 2002. The wife appealed that initial decision. In 2005, the Mississippi Court of Appeals affirmed the divorce, but reversed and remanded the case for the Chancellor to decide "unresolved matters of child custody, child support, property division and alimony." A second trial was held by a different Chancellor from the first case. And to add to the problem, the case was heard on different dates (2006 and 2007), a common occurrence in Chancery courts in Mississippi. Both parties appealed the final decision by the Chancellor.

The Mississippi Supreme Court recognized this "piecemeal" litigation, where the Chancellor will hold multiple hearings to decide the issues, is a problem with our Chancery Courts.

Hearings can be, and often are, separated by weeks or even months, as occurred in this proceeding. Chancellors are required to follow the testimony of witnesses, review documents offered as exhibits, and attempt to make contemporaneous notes. Trial judges are not afforded the advantage of appellate courts to review the full record of a case without interruption.

Continue reading "Mississippi Supreme Court sends case back to Chancellor for a third trial" »

Texas judge declares same-sex marriage ban violates equal protection clause

Texas, just as Mississippi, has a ban on gay marriage. In Texas, voters approved a constitutional amendment banning same-sex marriage and the Texas Family Code also prohibits such unions. However, a Dallas, Texas district court judge found the prohibition violates the equal protection clause to the Constitution and paved the way for two gay men to divorce. The judge held the court "has jurisdiction to hear a suit for divorce filed by person legally married in another jurisdiction." The attorney general said he would appeal the decision. The Texas Supreme Court will most likely reverse this ruling, but you can expect the case to be appealed to the U.S. Supreme Court based on a violation of the 14th Amendment to the U.S. Constitution.

Source: Dallas Morning News

Reported by Robert Kisselburgh, Mississippi Divorce Lawyer

Alimony award reversed in Mississippi divorce

The Mississippi Court of Appeals recently reversed an award of alimony in a divorce case from Neshoba County, Mississippi. In Sellers v. Sellers, the couple had a marital estate valued at $304,230. The wife had a non-marital estate valued at $13,620 while the husband had a non-marital estate of $137,500.

In dividing the marital estate, the chancellor awarded the wife $142,990. The husband was given possession of the marital home, but the chancellor ordered the husband to pay $50,000 in lump-sum alimony to the wife for her one-half equity in the marital home. After this award, the wife's award was valued at $192,990 while the husband got $111,240. Following that award, the chancellor then ordered the husband to pay the wife $12,600 in periodic alimony. The husband appealed.

Continue reading "Periodic alimony award reversed by Mississippi Court of Appeals" »

Child Support in Mississippi

Mississippi is in the minority of states that requires child support paid until the age of 21 or the child is otherwise emancipated. The question is what is emancipation? Mississippi Code, Section 93-11-65 defines emancipation. As of July 1, 2008, it underwent some significant changes.

There are two specific sections. The first says that emancipation shall occur when the child:

• Attains the age of twenty-one (21) years, or

• Marries, or

• Joins the military and serves on a full-time basis, or

• Is convicted of a felony and is sentenced to incarceration of two (2) or more years for committing such felony.

Continue reading "How long do you have to pay child support in Mississippi?" »

Tennessee law firm sued for using e-mails obtained using spyware

A lawsuit was filed against a Tennessee law firm for $2,000,000 dollars for its alleged use of e-mails in a divorce action. According to the article, the lawsuit claims the ex-wife loaded spyware on her then husband's computer and intercepted e-mails. The e-mails eventually were given to the law firm representing the ex-wife in the divorce and once her husband found out, he sued the law firm for violations of federal and state law.

Let me make a point--just because the software is available for sale does not mean its use is legal. Many times software is sold for one purpose--parents keeping track of their children's activities on a computer--and then is used for another, possibly, illegal activity--spying on someone. When spouses are going through a divorce and one spouse uses that software to intercept e-mails sent by the other spouse to third parties, it usually means you may be violating federal law. Federal and state laws govern the interception of electronic communications and you can find yourself in hot water if you use the software in an illegal manner.

See my previous posts, here and here, on the issue and make sure you consult an attorney before you act. Not only can you face both civil and criminal penalties for illegally intercepting electronic communications, but others who use the data gathered can also face penalties.

At the Kisselburgh Law Firm, we have experience representing clients going through a divorce. Call us at 601-936-4040 or contact us online to set up a consultation if you are contemplating a divorce.

Can I collect Social Security benefits using my ex-spouse's employment history?

Typical scenario: Husband and wife have been married for twenty years and they get divorced. For the majority of their married life, husband was the bread winner in the family while the wife was a stay-at-home mom. Following the divorce, the wife goes back to work but never makes what her husband. When it comes to retirement, the question is whether the wife can collect social security benefits using her employment record or can she seek social security benefits using her ex-husband's employment record.

In an article today on ABC news, the author said the general rule is:

In addition to the required 10 years of marriage, there are four key qualifications to collect divorced spouse benefits:

The person seeking to collect must not have remarried.

This person must be 62 or older.

The benefit this person would collect based on his or her own earnings record must be smaller than what they would collect on their former spouse's earnings history.

And the ex-spouse must be entitled to Social Security retirement or disability benefits on their own.

Another rule is that if you remarry, you generally cannot collect your ex-spouse's benefits unless the current marriage ends in death, divorce, or an annulment. The Social Security Administration also has some good information on their website.

If you or a loved one are contemplating divorce, you should speak with an experienced attorney. At the Kisselburgh Law Firm, we are experienced in representing clients going through a divorce. Call us at 601-936-4040 or contact us online to set up a consultation.

Liability for marital debts when you divorce in Mississippi

In a recent Los Angeles Times article, the author gave some good tips to couples dividing debts during a divorce. The overriding concern and point that should be reiterated is that just because you and your spouse agree that one of you will be responsible for a debt, it does not change the relationship with your creditor. Here is an example.

A Madison County, Mississippi couple are divorcing and have joint credit cards with American Express and Visa. The husband agrees to take on the American Express payments while the wife agrees to pay the Visa bill. After the divorce, things don't go well for the husband and he defaults on his payments to American Express. American Express goes after the wife for payment. She says how can that be? Well, if she was a joint account holder on the card at the time the debt was accumulated, then she is jointly liable for those debts. She probably has an agreement from her husband to indemnify her (standard in a divorce), but that indemnification agreement means nothing to the creditor. American Express must be paid and the wife will be jointly responsible. While she can then go after the husband for the money, if he does not have it, the indemnification agreement does not do her much good.

Lessons learned?

1. When divorcing, you need to ensure that you are aware of all debt accumulated during your marriage.

2. If you have joint credit cards, cancel the joint cards.

3. If there are balances on those cards, make sure one spouse opens up an account to transfer the balance to so it is no longer a joint debt or pays off the debt.

4. As for other jointly-held debt, such as mortgages and automobiles, you need to refinance the debt if possible. Those lenders will enforce their original agreement where both of you agreed to pay the debt even if your divorce decree says one spouse is responsible for payment.

I spoke about this issue before in a previous post. If you find yourself contemplating a divorce, call the Kisselburgh Law Firm at 601-936-4040 or contact us online to set up a consultation to discuss your rights.

Understand a divorce property settlement agreement before you sign it

This week the Mississippi Court of Appeals sided with a Madison County Chancellor who ruled a husband was responsible for paying a balloon payment on the divorced couple's mortgage. The case highlights the importance of being represented by an attorney when divorcing and also making sure you understand the documents you sign.

When the couple divorced, the husband agreed to pay alimony in the amount of the monthly mortgage payments "until such time as the mortgage on the property ... is fully satisfied." To ensure payments, he also agreed to provide a life insurance policy in the amount of $150,000. The tricky part was the mortgage contained a balloon clause. At the end of the mortgage term, a final payment of $142,268.41 payment was due. When it came due, the husband claimed he did not owe it.

A hearing was held and the Chancellor ruled in favor of the wife. The husband appealed. The Mississippi Court of Appeals sided with the chancellor. The question came down to whether the dissolution agreement was ambiguous or not. In Mississippi, as in many other states, a divorce property settlement agreement is a contract between the parties. The Court will look to the document for its intent unless the contract is ambiguous. In this case, the Court found that although one provision was ambiguous, the agreement provided the husband would pay the mortgage until it was "fully satisfied." The mortgage could not be "fully satisfied" unless the final balloon payment was made. Further, by the husband agreeing to provide a life insurance policy for the value of the house, it showed his intent to be obligated for the full amount of the mortgage. As the Court of Appeals stated, "it would be nonsensical for [the husband] to voluntarily obligate himself to obtain life insurance for the full amount due under the mortgage if he were not intending to obligate himself for this amount."

Let me repeat an important lesson. The wife was represented by an attorney who drafted the dissolution agreement, but the husband represented himself in the divorce. Too many times I receive calls from folks who did not have representation at the time of their divorce and are now calling to say there did not realize they were obligated to do certain things. At the Kisselburgh Law Firm, we represent those going through divorces. If you are contemplating a divorce, call us at 601-936-4040 or contact us online to set up a consultation to discuss your rights.

Mississippi divorce set aside for couple representing themselves

A Hinds County, Mississippi couple, each representing themselves, had their divorce set aside by the Mississippi Court of Appeals last week. When the wife originally filed for divorce, she sought a fault-based divorce on grounds of adultery and habitual cruel and inhuman treatment. At trial, the Court denied the wife's fault-based grounds, but gave the parties an opportunity to agree to the divorce. The parties agreed to an irreconcilable divorce by filing a consent for divorce. The Chancellor then divided the marital property. The husband, upset with the division of property, appealed the case.

On appeal, the Mississippi Court of Appeals said the Chancellor erred when she granted the divorce based on irreconcilable differences. The reason was the parties failed to seek to properly withdraw the fault-based grounds for divorce. Under Mississippi law, if the divorce is originally filed as a contested divorce, the parties are required to seek leave of court, and the court must approve, the withdraw of their contest or denial of the fault-based grounds before a divorce can be granted on irreconcilable differences. The parties failed to do so. So the case was reversed and the parties have to start all over.

This case highlights the problem of representing yourself in divorce proceedings. While the parties thought they could probably "save some money" by representing themselves, they are now back to square one AND still married.

If you or a loved one is contemplating a divorce, you need to consult an experienced Mississippi divorce attorney. Contact us online or call the Kisselburgh Law Firm at 601-936-4040 to set up a consultation.

Don't let the child support payments get behind in Mississippi

Everyone understands these tough economic times. Layoffs are mounting along with unemployment benefit claims. If you are a victim of a layoff, then these times also bring the realization that the child support you are ordered to pay was based on your previous income and you may not be able to afford the payments. The important point is if you can no longer afford your child support payments due to a recent layoff, you need to act now by seeking a modification of the child support from the Court. If you delay, you might find yourself behind in payments and your ex-spouse bringing a contempt action. Further, in Mississippi, once the child support payment is due, it cannot be reduced. Let me give you an example:

Dan lives in Madison, Mississippi and was divorced in Hinds County, Mississippi three years ago. He has two children and is required to pay $600.00 a month in child support. When the child support order was entered, he was making $45,000.00 a year. However, six months ago, Dan was laid off from his job and he has yet to find a new job. His savings ran out three months ago and has not paid child support in three months. He is only living on unemployment benefits. His ex-wife has now filed a Motion for Contempt since Dan is no longer making child support payments. Dan answers the Contempt motion by filing a Motion for Modification.

Since Dan waited to seek a modification in the child support until he was past due, he still owes the three months in back child support. The Chancellor cannot reduce amounts once they become due. The solution to this problem was for Dan to seek a modification once his income was reduced dramatically. If he had, the Chancellor could have reduced his child support payments.

Lesson: Don't wait until the bills are mounting and take action before you get behind.

At the Kisselburgh Law Firm, we represent those who are seeking either to enforce a child support order or those who are seeking a modification. If you find yourself in either situation, contact us online or call us at 601-936-4040 to set up a consultation to discuss your case.

Economy drives down divorces as well as 401K

During these down economic times, people fear opening the mail to look at their 401K balances which are reaching new lows. But less people should fear finding divorce papers in the mail according to a recent article. It seems the economic downturn is also related to a downturn in divorces. And the cause is not more marital harmony, but less money--some people can't afford to get divorced.

When the two largest assets of a marriage, the home and the 401K, are down to new lows and many people are living in homes where they owe more than it is worth, how does an unhappy couple divide their assets. They don't. Rather, if they divide anything it will be debt. So some of these unhappy couples are deciding to live together as opposed to divorcing. Hopefully, we will not see an increase in domestic violence as unhappy couples live together.

If you find yourself in an unhappy relationship and are contemplating divorce, you need to get advice from an experienced divorce attorney. Call the Kisselburgh Law Firm at 601-936-4040 or contact us online to set up a consultation to discuss your case and the options you have or click here to get your free copy of the Mississippi Divorce Guide.

Mother in custody after hiding daughter from father for 6 years

It is every divorced parents' nightmare. Your ex-spouse takes your child and does not come back. In 2001, Kostas Lazarides was awarded sole physical custody of his daughter in what was described as a bitter divorce. The two moved from Tennessee to Montana, but returned three years later for the summer. While in Tennessee, Kostas agreed Hope Lazarides, the mother, could keep their daughter during that summer until school started. That was the last time Kostas saw his daughter until he was reunited with her this week after 6 years of separation. The daughter was found in Dallas, Texas living with her mother. According to the article, Hope Lazarides is now facing charges of kidnapping and custodial interference in Tennessee.

Home bought prior to marriage becomes marital property

The Mississippi Court of Appeals recently handed down a decision in a Copiah County, Mississippi divorce case. In this case, the husband lived in a home in the Hazlehurst, Mississippi area prior to marrying his wife. After they married, the couple lived in that house before selling it to buy a new home. They used the proceeds from the sale of the home to buy the new home. When the parties divorced, the husband argued the proceeds from the sale of the pre-marital home were not marital property as he owned it prior to marriage and it was purchased with pre-marital funds. The chancellor disagreed holding that the home was marital property given it was used by the family during his marriage. The Court of Appeals agreed.

The Court noted the well-settled rule that "non-marital assets may lose their characterization as such if the party commingles the asset with marital property or uses them for familial benefit." Even though the husband owned the first house prior to his marriage, "the property gained status as a marital assert upon its prolonged use as their family home." This concept is sometimes termed the "family use" doctrine.

The husband's second argument was that the wife did not contribute anything to the house given she stayed at home. Thus, she should not benefit from the increase in value of the home. Again, the Court disagreed. The wife stayed at home as a homemaker, raising the family, and going to school to further her education. All with the encouragement of her husband. As such, her role as homemaker and mother was sufficient to show a contribution to the equity of the home. "Any contributions or efforts by either party in the marriage, 'whether economic, domestic or otherwise, are of equal value."

This case provides a good analysis of the trying to divide property in a divorce, some of which was acquired prior to the parties' marriage. The Kisselburgh Law Firm represents individuals involved in divorces. If you are contemplating a divorce, contact us online or call us at 601-936-4040 to set up a consultation.

Good Morning America wants couples who are contemplating divorce

If you and your spouse are contemplating divorce, but want try to save your marriage, then Good Morning America is looking for you to contact them. Couples chosen will undergo an intense counseling session to save their marriage.

As I have said before, our firm does not promote divorce and hope that all couples will attempt to go through counseling to save their marriage. If you are one of those couples, you can also check out the Mississippi Marriage Help website which provides a list of counselors who specialize in marriage counseling.

Unanimous U.S. Supreme Court holds ex-wife entitled to pension benefits

In a follow-up to a previous post concerning a dispute between an ex-wife and her daughter over the ex-husband's pension benefits, the U.S. Supreme Court issued a unanimous opinion upholding the Fifth Circuit Court of Appeals' decision giving the benefits to the ex-wife. However, the U.S. Supreme Court disagreed with the Fifth Circuit reasoning and affirmed the ruling on other grounds.

To recap the facts, Mr. Kennedy was an employee of DuPont and participated in their savings and investment plan (SIP) that was an ERISA benefit plan. In 1971, Mr. Kennedy married and three years later signed a beneficiary designation identifying his new wife, Liv Kennedy, as the sole beneficiary of the SIP plan. Twenty years later, the couple divorced. As part of the divorce, the ex-wife agreed to relinquish all rights to husband’s pension benefits with DuPont. The agreement to waive those benefit was contained in the divorce decree. However, a Qualified Domestic Relations Order was not submitted covering these benefits nor did the husband ever change the beneficiary designation for the account.

In 1998, Mr. Kennedy retired from DuPont and later died in 2001. His daughter was appointed administrator of his estate. She sent a letter to DuPont requesting the Estate be paid the funds in the SIP. DuPont refused, stating that the beneficiary designation identified the ex-wife as the beneficiary. She also asked the ex-wife (her Mom) to relinquish her rights to the account and she refused. In fact, ex-wife asked DuPont to pay up and they sent the ex-wife the $400,000.00. Daughter, on behalf of the Estate, brought a lawsuit.

Continue reading "U.S. Supreme Court says ex-wife gets pension benefits" »

Divorce rates decrease during holidays

With the holidays past, now is the time for New Year's resolutions. For some that resolution is divorce, according to a recent article. Divorce rates drop during the holidays, but rise again as the holiday cheer fades away in January.

If you are contemplating a divorce in Mississippi, you should learn about the process and your rights. Click on this link to request your free copy of the Mississippi Divorce Guide or contact the Kisselburgh Law Firm to set up a consultation.

Virtual affair leads to real-life divorce

A husband in England was recently caught cheating on his wife. The hitch, it was on-line through a virtual game. According to the article, the husband was having "an affair" with another woman on "Second Life" even though they never met in person. In the game, they were actually married. Wife finds out about the virtual affair and files for divorce. You can't make this stuff up.

Divorce can be financially and emotionally draining. Emotions often run high during divorce litigation and these emotions create roadblocks to resolution. The longer a case drags on, the more expensive it becomes. The cost of even a one or two day trial can be staggering.

More and more couples in Mississippi are resolving their cases by mediation well before their trial date, saving thousands of dollars and many months of heartache and stress. Divorce mediation is an alternative to a trial. Parties can voluntarily choose to mediate or be ordered by the court to participate in mediation. A mediator is a neutral third party who listens to each person’s positions and concerns and helps them find a mutually acceptable common ground on which to resolve their divorce, custody or support litigation.

Continue reading "Mediation in a Divorce Case" »

It may be time to review your Will

Chances are that you have a Will somewhere that you had drawn up when your children were born. Depending on how long ago that was, you should probably dig it out, review it and then talk to an attorney about updating your estate plan to account for your current family situation.

It may be that nothing much has changed. Or you may have gotten a divorce several years back, even gotten remarried but never changed your estate planning documents to reflect these major life changes.

Continue reading "Estate Planning after a Second Marriage" »

Think you have it bad?

A Nigerian man has been ordered to divorce 82 of his 86 wives or face the death penalty. Under the law, he is only entitled to have 4 wives. Amazing. Click here to read this strange story.

The Shark pays a hefty sum for divorce

According to recently released documents, famed golfer Greg Norman paid $103 million to his former wife to end their marriage. The recent article says the divorce settlement was reached in 2007 but the details were just made public. Norman recently wed ex-tennis star Chris Evert. Let's hope he had a good prenuptial agreement this time.

When you divorced, did you modify your estate plan?

For many couples going through divorce, the focus is on the divorce process and its aftermath. With the wave of emotions involved in the divorce, many forget about their estate plan. Ask yourself some simple questions which apply both during and after the divorce process.

• Do you want your soon-to-be ex-spouse making the decisions are to your medical care should you become disabled?


• Do you want your soon-to-be ex-spouse to get all your money should you die?


• Have you updated the beneficiary forms for your life insurance?


• Have you updated the beneficiary forms for your retirement plan?


• Have you updated your Will removing your spouse as a beneficiary?


• Have you updated your trusts removing your spouse as a beneficiary?

Continue reading "Estate Planning and Divorce in Mississippi" »

Man looks to eBay to start over following divorce

According to a recent article, an Australian man is attempting to start fresh following his divorce. He put all of his worldly possessions, plus more, up for sale on eBay. The 44-year-old is selling his car, home, jet ski, friends, hobbies, and job. Although offers have reached at least $1.7 million, no word on whether those bids are valid. This gives a whole new meaning to starting over following a divorce.

First Wives World website

For divorced women, or women going through divorce, there is another website for you to share your thoughts, whether it be frustration or jubilation, or seek out answers to those lingering questions. First Wives World says it is a "community for, and by, divorced women." The site offers articles on a litany of subjects from dating styles of divorced women to dealing with children during a divorce.

How to tell your spouse you want a divorce

The Today Show ran a series on how to tell your spouse you want a divorce. The video is below and contains some useful information. If you are contemplating a divorce, click here to get your free copy of the Mississippi Divorce Guide and call the Kisselburgh Law Firm to see how we can help you through this difficult time.

Cohabitation does not equal condonation

Continuing on with our discussion of condonation as a defense to fault-based divorce in Mississippi, some cases have held the defense of condonation does not apply to those continuing offenses such as cruel and inhumane treatment and habitual and excessive drug use.

In a case from DeSoto County, Mississippi, the chancellor denied a divorce to a husband whose wife had abused drugs for a number of years. The court said because the husband had sex with her one time after she had moved back in, he condoned her drug abuse. The Court of Appeals disagreed and reversed the case holding that it did not believe condonation applied to continuous behavior, such as habitual drug abuse, and even if it did, one act of sexual intercourse after the wife abused drugs was insufficient to prevent the divorce when the wife continued to abuse drugs after the sexual encounter.

Continue reading "Condonation—when it is not a defense to divorce in Mississippi?" »

Is resumption of sexual relations enough?

Last time I spoke generally about condonation as a defense to fault-based divorce in Mississippi. Let’s take a look at its application in some specific divorce cases. In the case of adultery, condonation means the innocent spouse forgives the spouse who committed adultery and the spouses resume normal marital relations. However, the analysis is not so straightforward, especially given some recent cases.

In a recent case out of Hinds County, Mississippi, the court found there was insufficient proof of condonation where the husband had sexual relations with his wife after he knew she committed adultery. The Court stated that when the husband had sex with his wife that one time, he “made it clear” to her “before she arrived at his home that he still wanted a divorce…. He even asked” his wife “whether she would use their encounter against him at some later point.”

In my next post, I will talk about condonation applying to those continuing offenses such as cruel and inhuman treatment and habitual drug use.

The “I forgive you” defense

The second, and most commonly used, defense to a fault-based divorce is condonation. Essentially, it means forgiveness. The Mississippi Supreme Court explained condonation as:

“forgiveness of a martial offense theretofore committed, on condition that it will not be repeated and that the offender will thereafter treat the forgiving party with conjugal kindness. So long as the offending spouse observes the conditions on which the condonation rests, the unoffending spouse may not complain of the condoned offense.”

Lee v. Lee, 232 So.2d 370, 373 (Miss. 1970)

Continue reading "Condonation—a defense to divorce in Mississippi?" »

The “You did it too” defense

The first defense to a divorce is recrimination. Recrimination “is founded on the basis that the equal guilt of a complainant bars his/her right to divorce, and the principal consideration is that the complainant must come into court with clean hands.”

In an interesting case, the Mississippi Supreme Court explained the defense. The case involved a husband who was allegedly impotent and liked to dress up occasionally in women’s clothes. The wife filed for divorce based upon cruel and inhuman treatment, but the chancellor denied the divorce. The Supreme Court found sufficient grounds based upon the husband’s conduct and its impact on the wife’s health. However, at trial there was testimony that the wife was seen sitting on another man’s lap and kissing him. So the husband raised the defense of recrimination. As the Court explained, the defense did not apply. In order for the defense of recrimination to apply, the other spouse must also commit an offense that is a fault-based ground for divorce. An example would be if the husband could have proven the wife committed adultery, recrimination would have applied. Given her conduct did not rise to that level, the defense had no application to the case.

Continue reading "Recrimination—a defense to divorce in Mississippi?" »

Defenses to Divorce in Mississippi

In previous posts I spoke about the different types of divorces in Mississippi. The first, irreconcilable differences, is when the parties agree to divorce. Remember, Mississippi does not have true no-fault divorce—that is one party can get a divorce even though the other party does not agree to divorce. Rather, if both parties do not agree to divorce, the person requesting the divorce must prove a fault-based ground, the second type of divorce. There are twelve statutory fault-based grounds and can be found here.

When a spouse seeks a divorce based upon fault, the other spouse may defend the divorce by asserting one of the defenses to a divorce. There are four general defenses to fault-based divorces, although two have little or no application today. The two commonly used defenses, recrimination and condonation, are the ones I’ll talk about in the following posts.

Adultery during separation provided grounds for divorce

In a recent case out of Jackson County, Mississippi, the Court of Appeals upheld a chancellor's decision to grant a divorce based on adultery even though the husband and the alleged paramour denied the affair. The case illustrates three points.

The first is that you don't need direct evidence of adultery. Rather, in Mississippi, you must prove by clear and convincing evidence that the person had "an adulterous inclination coupled with an opportunity to consummate the inclination." The adulterous inclination "may be proven by showing either an infatuation with a particular person or a general adulterous propensity."

Continue reading "Mississippi case highlights conduct during separation" »

Free Mississippi Divorce Guide

For those contemplating a divorce or just considering their options, you might find the answers to your questions in my recently completed C.D.--the Mississippi Divorce Guide. In the C.D., I discuss:

• Different ways to resolve a divorce;


• An overview of a divorce case in Mississippi;


• How is the property divided in a divorce;


• How child custody is determined;


• What are the child support guidelines in Mississippi; and


• 5 steps to take when divorce is at your doorstep.

If interested in obtaining this free C.D., click on this page.

Downturn in housing market impacts divorce

The downturn in the housing market is impacting the ability of some to divorce. Quite frankly, they can not afford to divorce given they owe more on their home than it is worth. In an article out of California, the impact of the housing downturn is amplified. While housing prices were up, it was easier to split the couple's assets with the home usually being the largest asset. As one person quoted in the article said, "the hardest thing was picking a Realtor." But with the downturn in housing prices, it is more difficult. Even if one spouse wants to stay in the home, they must be able to afford the house payment as well as pay off the other spouse for their share of the equity (although that is diminishing as prices slide).

More troubling is when one spouse wants to sell and the other does not. This puts the courts in the position of deciding whether to order a sale or wait in hopes the real estate market will rebound. As the article points out, these economic times raise many issues when homeowners divorce.

Continue reading "Breaking up is harder to do" »

Common tax issues in a divorce

As a Mississippi divorce lawyer, I've seen my share of tax issues arise during a divorce. Three common tax issues are: whether alimony payments are taxable, whether child support payments are taxable, and which spouse gets to takes the tax exemption for the children.

With regard to alimony, the Internal Revenue Service states that alimony "is a payment to or for a spouse or former spouse under a divorce or separation instrument." To be alimony, certain requirements must be met and the rules are different for documents executed after 1984 and those executed before. However, generally alimony payments are deductible from your gross income for those making alimony payments and generally are included in the gross income of a person receiving alimony payments. Again, a word of caution. You must determine whether you are paying or receiving alimony as defined by the Internal Revenue Service. Additionally, if you are receiving alimony, you may need to make estimated tax payments as no tax is withheld from alimony payments. Again, a qualified tax professional can answer these questions.

Continue reading "Common tax pitfalls in a divorce" »

Some tips for the tax season

As CPAs, accountants, and others are burning the midnight oil preparing tax returns, a recent article provides some helpful tips for those undergoing a divorce or recently divorced.

In my next post, I will discuss some common tax problems in a divorce.

Dividing Retirement Benefits in a Mississippi divorce

Continuing on with my previous post on this subject, the second step for the chancellor in dividing retirement benefits in a Mississippi divorce is valuing the assets. How much are the retirement benefits worth? With a defined contribution plan, this is relatively easy as you know how much money is in the account at the valuation date or you should be able to get that information from the plan administrator. However, what if some of the benefits benefits (the employer's contribution) are not vested (that is, the employee is entitled to at the time) and are those benefits valued the same? A more difficult proposition is if the employee's retirement benefits are a defined benefit plan. In this case, it will require a formula to calculate the value of the benefits earned during the marriage. This calculation can be complex and can require the assistance of a professional.

The final step for the chancellor is how to divide the retirement benefits. This falls back to the analysis discussed in earlier post regarding the division of marital property in a Mississippi divorce.

A review of these posts regarding dividing retirement benefits in a Mississippi divorce should make it apparent that this is not a job people should attempt on their own. While you may be able to work out the basic framework for dividing the retirement benefits, you should seek the advice of a divorce attorney to protect yourself against a potential minefield.

If spouses are unable to agree on how to divide retirement benefits in a Mississippi divorce, then the job falls to the chancellor. Retirement benefits are no different than other property in a divorce. Essentially, there are three steps.

• Determine the character of the property;


• Determine the value of the property; and


• Determine how to divide the property.

Let's take each of these steps separately.

Continue reading "How the Mississippi judge divides the retirement nest egg" »

Guess Who’s Not Coming to Dinner

Continuing on in the discussion of the pitfalls of ERISA when dividing retirement benefits during a divorce in Mississippi, this next case illustrates the importance of complying with ERISA as well as changing the beneficiary forms following a divorce.

In Kennedy v. DuPont, Mr. Kennedy was an employee of DuPont and participated in their savings and investment plan (SIP) that was an ERISA benefit plan. In 1971, Mr. Kennedy married and three years later signed a beneficiary designation identifying his new wife, Liv Kennedy, as the sole beneficiary of the SIP plan. Twenty years later, the couple divorced. As part of the divorce, the ex-wife agreed to relinquish all rights to husband’s pension benefits with DuPont. Although a QDRO was submitted and approved, the QDRO did not address the benefits in the husband’s SIP account nor did the husband ever change the beneficiary designation for the SIP account. It only addressed the other pension benefits Mr. Kennedy had at DuPont.

Continue reading "Divorce and Death—dividing the Nest Egg" »

Too many pieces of the financial pie

In a recent 2008 decision from the Fifth Circuit Court of Appeals (which handles federal appeals out of Mississippi as well as Texas and Louisiana), the need for a properly drafted QDRO in a divorce was stressed. This case illustrates the problem of not complying with ERISA in drafting a QDRO. Seemingly, one attorney thought a court order was sufficient, while the Fifth Circuit reminded the attorney that ignoring the dictates of ERISA is at your own peril.

Taliaferro v. Goodyear Tire & Rubber Co.involved a man married and divorced twice. The husband, who worked for Goodyear Tire & Rubber, divorced his first wife. The divorce decree required the husband to pay child support but he fell behind. In 2001, his first ex-wife took him to court to collect the child support arrearages. The state district court granted the ex-wife a right to collect the child support from his retirement account at Goodyear. The attorney sent a notice to Goodyear claiming an interest in the retirement account. In response, Goodyear told the attorney he needed to provide a Qualified Domestic Relations Order (QDRO) and supplied the attorney with the guidelines. (NOTE: QDROs can be used to collect child support.) However, the attorney never provided Goodyear with a QDRO. Rather, Goodyear received two additional state court orders directing it to withhold child support payments from the husband’s retirement account. Each time, Goodyear told the parties a properly drafted QDRO was required and each time this request was ignored.

Continue reading "Competing claims for retirement benefits" »

Dividing Pension Plans in a Mississippi Divorce

Two major concerns arise when dividing pension plans benefits governed by ERISA. First is whether the pension plan administrator will follow the directives of the divorcing spouses. The second is how can the transfers take place without the recipient spouse being taxed by the IRS for an early withdrawal.

Assuming the husband's retirement account (using our previous example) is controlled by ERISA (which controls most private employer accounts), the retirement plan administrator will require a Qualified Domestic Relations Order (QDRO) before he will divide the benefits. ERISA prohibits state laws from interfering with ERISA plans. An exception created by Congress is the QDRO. A QDRO is a judgment, decree, or order issued by a state court which:

Continue reading "Dividing the Nest Egg in Divorce" »

The Nest Egg and Divorce in Mississippi

Here is a common situation I see as a Mississippi divorce lawyer. A wife wants to divorce her husband. The husband works for a large employer in Madison, Mississippi and has accumulated a nice retirement account from the employer while married to his spouse. In fact, other than the house, the husband’s retirement account is the largest asset this couple owns. The wife wants to know if she is entitled to any of the retirement account. If so, can it be divided.

The answer to the first question depends on how the retirement account was earned. Generally, a retirement account that was accumulated during the marriage is marital property. The reasoning is that wages and benefits of employment earned during the marriage are marital property. That brings up the second question—how can the retirement account be divided?

Continue reading "Pension Plans and Divorce" »

How to divide the Retirement Nest Egg in a Mississippi Divorce

As a Mississippi divorce lawyer, it surprises me the number of people who overlook the implications of retirement benefits during a divorce. For most individuals, retirement benefits are usually their biggest asset outside of their home. In the next couple of posts, I will discuss some common issues seen with retirement benefits and divorce.

Buying her a drink may lead to divorce in Mississippi

A word of caution for those married folks with wandering eyes. Next time you are away on business and the person next to you at the bar becomes friendly, you might think twice about responding. According to a recent article, some spouses are hiring an attractive private investigator in an attempt to seduce an unsuspecting, but disloyal, spouse. In those cases where the P.I. is successful in luring their victim, the matter ends up in divorce court.

Here's another article about how the holidays increases the prospect of divorce. Between a focus on relationships or mixing relatives and alcohol, a number of folks come out of the holidays headed for the marriage counselor or divorce court.

But the decree said he was responsible for that bill!

A common misconception among people going through divorce in Mississippi is the responsibility of paying debts following divorce. Here is a classic example: Husband and wife have two cars, both financed through their bank and both of their names are on the loans. During the divorce negotiations, the wife and husband agree to each keep the vehicle they drive and each agrees to pay for their own car. Following the divorce, the wife is very diligent in making timely car payments. Six months after the divorce, she goes to the bank for a loan and is denied because her credit score is too low. Upon checking, she finds that her credit score was lowered because her ex-husband was not making the payments on his car. How can this happen? Didn’t the divorce split the debts? Didn’t her husband agree to pay the debt? Not so fast. She is still financially responsible for the debt because her name is on the loan.

Continue reading "Your credit score following divorce" »

Mississippi Lt. Governor Phil Bryant and some lawmakers are looking to propose legislation to discourage divorce. According to the Clarion-Ledger, Bryant and other lawmakers debated the issue at a recent meeting prior to the legislative session. While some lawmakers saw the benefit of such legislation, others felt that the government should not be involved in discouraging divorce. Stay tuned for more news as the legislative session begins Tuesday.

New Year brings with it increase in divorce filings

Here is an interesting article which says that the New Year is a time when many couples will make the decision about whether to divorce. The decision to divorce is usually put off during the holidays but resurfaces with the passage of a New Year. If you are contemplating a divorce, make sure you have done your homework. Talk with an attorney to understand your options, read the many articles on preparing for a divorce, including the ones I've posted on this site, and if you are still undecided, seek professional help from a marriage counselor.

Over the past month, I have talked about the steps in preparing for a divorce in Mississippi. To recap, they are:

Step 1: Hire a Wise Advisor

Step 2: Get a Safe Deposit Box

Step 3: Get a Complete Picture of your Family Finances

Step 3A: Determine what you family owns

Step 3B: Determine what you family owes

Step 3C: Determine what your family makes

Step 3D: Determine what your family spends

Step 4: Make copies of all financial documents

Step 5: Inventory, Photograph, and Safeguard Personal Property

Step 6: Establish your own credit

Step 7: Make an assessment of your financial accounts

Step 8: Get a handle on credit accounts

Step 9: Consider hiring a private investigator

Step 10: Get your career in order

Step 11: Get yourself prepared mentally for divorce

Step 12: Behave

Now that we have completed this series, I want to reiterate that the series was not intended to advocate divorce. In fact, if you are unsure about divorcing your spouse, seek professional help from a counselor or therapist. You may be able to save your marriage and that should be your first priority, if possible.

The series was intended for those who have already made the decision to seek a divorce and intended to assist them in preparing for the process. The process can be emotionally taxing and all-consuming, but if you follow the steps in the posts, you will be better prepared for the process, will probably save yourself legal fees given you are organized and prepared, and will ease some pain associated with divorce.

As always, remember the first step—seek a wise advisor. Although we live in a DIY (Do It Yourself) society, save the DIY for remodeling the kitchen, not remodeling your life. You need an experienced professional on your side. If you are contemplating a divorce in Mississippi, you can contact me to make an appointment so we can discuss your options.

Step 12 - Behave

In the last step in preparing for divorce in Mississippi comes the most basic and most ignored step in the process. Behave. What I mean is in a divorce, your conduct is judged by many. During a divorce, you live in a fish bowl, so behave.

Your spouse, their family and friends, their attorney, and others (including private investigators) will look for any bad behavior on your part. Most importantly, if you go to court, the chancellor will judge your conduct. Emotions run high in a divorce, but keep them in check. You don't want to hear a tape recording of you yelling at your spouse played back in court. It might have been an isolated incident, but it can set the tone for the remainder of the court proceedings.

Also, behave when it comes to your social life. You are still married. Now is not the time to hit the single bars and live it up. If that is your goal, wait until you are divorced. Also, don't date. You're still married. Remember, during a divorce many attorneys will request a copy of your cell phone records and e-mails, so watch who you call and watch what you say in e-mails. They are not private.

FInally, a word of caution for those with children. You and your spouse are getting divorced, not your children. Your children are part of you and your spouse. If you criticize your spouse in front of your children or to your children, you are only tearing down your children. Save your gripes about your spouse for your close friend, family member, or therapist. Do not put the children in the middle. They will have a hard enough time with the divorce. This rule applies even if your spouse does not follow it. Be the better person and take the high road. It pays in the long run.

Step 11 – Get yourself prepared mentally for a divorce

Working off the last step, you also need to protect your emotional health. If you have not already done so, you should look at forming a relationship with a therapist or counselor. Divorce is one of the most stressful events in your life. Don't go through this alone.

If you are not comfortable talking about your problems with a professional, then make sure you have some solid family members or friends you can lean on. Shore-up those relationships if needed. Don’t look to your attorney for this help. While your attorney should be able to recommend a counselor for you to see, your attorney is not a mental health specialist. Rely on mental health professionals for your emotional needs and let your attorney handle your legal needs.

Continue reading "Preparing for Divorce in Mississippi: Step 11 - Get yourself mentally prepared" »

Step 10 – Get your career in order

If you are not working, it is time to dust off the old resume and do some updating. You also want to start networking because you will probably have to re-enter the workforce unless you have small children and can expect your current spouse to support you during the children’s early child-rearing years. Most spouses will have to work following divorce and you should start the job hunt early.

If you are working, take steps to keep your personal life separate from your professional life. It will be difficult. Divorce can become all-consuming and can impact your job performance. The last thing you want is to lose your job in the midst of a divorce.

Step 9 – Consider hiring a private investigator

In a Mississippi divorce, you and your spouse must either agree to the divorce or you must prove “fault”. If you do not anticipate your spouse agreeing to the divorce, then you will need to prove one of the fault based grounds for divorce. Refer to my previous post about this issue.

The important part is that the fault cannot be proven just on your testimony. You need corroboration. That is, you must have proof beyond your testimony.

If you suspect your spouse is committing adultery (a fault based ground for divorce in Mississippi), you need evidence of their conduct to present in court. Whether you get that evidence yourself or through a private investigator, it is needed.

Be careful about being own private investigator. Look at my previous post on this issue. If you already hired an attorney, listen to their advice. An experienced attorney can assist you in this area and should be used as there are federal laws and state laws that prohibit certain types of investigate techniques.

Step 8 – Get a handle on credit accounts

If divorce is imminent, you do not want to be liable for purchases made by your spouse. Similar to spouses who have raided bank accounts on learning of a divorce filing, some are known to go on shopping sprees leaving you deeper in debt.

Now is the time to determine what your credit limits are. You can call credit card companies and have them lower your credit limits. Likewise, you can cancel credit cards. Two things the majority of folks have never done. Take a look at your financial picture and determine whether you can take either of these two steps. Don’t put yourself in a worse financial position. You may need a credit card to get through a short period. That is O.K.

Before you make a final decision, talk with a lawyer. While you don’t want your spouse taking on more debt that you could be responsible for, you also don’t want to be worse off financially by closing available credit lines you have available.

Step 7 – Make an assessment of your financial accounts

If you have completed the previous steps, you have a good idea of what financial accounts exist and their balances. Now you need to make a decision as to what to do with them.

Unfortunately, once divorce proceedings are initiated, one spouse may raid the bank accounts. There is an old adage that it is much better to beg from forgiveness than ask for permission. When it comes to raiding the financial accounts in anticipation of a divorce, you are better off not following that advice. Don’t raid the accounts.

Continue reading "Preparing for Divorce in Mississippi: Step 7 – Make an assessment of your financial accounts" »

Step 6 - Establish your own credit

The sixth step in preparing for divorce in Mississippi is to establish your own credit. This is not the green light to make purchases. Rather, if you do not have your own credit history, you need to establish it now. If you have a credit history, protect it.

I usually do not advocate getting credit cards. The reason is the majority of people can’t manage credit card debt. They don’t pay off the card on a monthly basis and before long, are in serious debt. However, it is important for you to have your own credit. So keep it simple. One credit card (Visa, MasterCard, American Express) and one gas card used sparingly and paid off each month will go a long way to establishing good credit.

Remember, the point is not to take on more credit, but to establish your own credit rating, an invaluable asset following divorce. However, a good credit score is difficult to obtain, but easy to lose if you do not pay your bills on time. So the best advice is to not spend more than you can pay off each month.

Step 5 – Inventory, Photograph, and Safeguard Personal Property

The fifth step in our series on preparing for divorce in Mississippi is to document, photograph, and safeguard your personal property.

The first step is to inventory and photograph all your household possessions including furniture, art, jewelry, and valuable items. Why is this so important? First, you need to have a complete inventory of your assets for property division. Second, once you have informed your spouse of your intentions, things might start to disappear. But, if you have photographs, your position is strengthened.

Continue reading "Preparing for Divorce in Mississippi: Step 5 - Document, Photograph, and Safeguard Personal Property" »

Step 4 - Make copies of all financial documents

Continuing on with our series of preparing for divorce in Mississippi, the next step is to make copies of all financial documents. If you completed all of Step 3, your job is almost complete.

When you make copies of these documents, you should make two copies of each document—one for you and one for your lawyer. Keep them in a safe place, as discussed in an earlier post. Also, you should keep a list of the all documents in order to stay organized. This helps in determining what you have and what you still need.

In a divorce in Mississippi, here is a list of financial documents you should gather. Your lawyer may have other suggestions.

• Income tax records for the last 3 years;
• Most recent pay stubs showing the income earned to date for both you and your spouse;
• 2 years of statements for all financial accounts (bank accounts, savings accounts, investment accounts, and retirement accounts)
• 2 years of statements for every credit card;
• 2 years of statements for any loans;
• Financial statements, if any, used when applying for a loan;
• Deeds for all real property;
• Real estate tax bills and/or appraisals; and
• Titles to all vehicles (including boats and recreational vehicles).

Step 3D – Determine what your family spends

The dreaded budget. Most folks have thought about a budget, some have actually created one, and fewer have followed one. If you don’t have a budget, you need to create not just one, but two.

First, you need a current monthly budget. This is important for determining spousal support, alimony, property division, and child support. Additionally, you will need to list your monthly living expenses in the financial disclosure required in Mississippi divorces. If your spouse is self-employed, it can also show that your spouse is underreporting his/her income if your expenses exceed your income. Or it may show you are living beyond your means.

Continue reading "Preparing for Divorce in Mississippi: Step 3D—What does your family spend?" »

Step 3C - Determine your family’s income

The court and your lawyer will need documentation showing the income for you and your spouse. This is especially important for child support, spousal support, and the division of property.

If you and your spouse are salaried employees, then your job is easy. Get a copy of the most recent pay stubs. Additionally, you will need to determine if there are any deferred compensation plans. This should be shown in the pay stubs or last W-2.

Continue reading "Preparing for Divorce in Mississippi: Step 3C – What does your family make?" »

Step 3B - Determine what your family owes

We have discussed the first step, what your family owns, in getting a complete picture of your family finances. Now we turn to the next step which is what does your family owe.

You will need to determine all of the debts of the marriage without regard to who incurred the debt. While who incurred the debt may be important at a later date, your initial task is to get a complete picture of the debts owed by your family.

Again, documentation is important. If you pay the bills in your family, you should have a good idea of what you owe. If not, you need to start looking at your bills. Make copies of the bills over a two-month period to get an idea of your debts.

Continue reading "Preparing for Divorce in Mississippi: Step 3B – What does your family owe?" »

Step 3A – Determine what your family owns

Continuing with Step 3 in our series regarding preparing for divorce in Mississippi, your first step is to understand what you have, or put another way, what are your assets. For some, this is an easy step as you may be the one in charge of the family finances. For others, you may be in the dark as to what you own. The key is to find out what you and your spouse own, both together and separately.

Here are the obvious ones—homes, cars, bank accounts, retirement accounts, recreational vehicles and household furnishings. The less obvious ones are stocks, bonds, deferred compensation plans, and business interest.

Continue reading "Preparing for Divorce in Mississippi: Step 3A – What does your family own?" »

Step 3: Get a complete picture of your family finances

One of the primary purposes of the divorce process is to divide the assets and debts of the marriage. You must have a complete picture of your family finances before you start the process of dividing assets and debts.

Mississippi Chancery Court Rule 8.05 requires the parties in domestic relation cases involving financial issues to submit:

• A detailed written statement of actual income and expenses and assets and liabilities;
• Copies of the preceding year’s Federal and State Income Tax returns, in full form as filed, or copies of the W-2s if the return has not yet been filed; and
• A general statement of the providing party describing employment history and earnings from the date of the divorce.

For your family, answer the following:

A. What do we own
B. What do we owe
C. What do we make
D. What do we spend

Step 2: Get a Safe Deposit Box to store important information

If you follow the coming steps, you will have a lot of important documents and photographs that need safekeeping. The best advice is to get a safe deposit box unless you have some other place outside your home to store your documents.

Check with your bank and see if you can rent a safe deposit box. Or you may be able to keep your documents at work. The important part is to safeguard the documents you have and the ones you obtain. You want to keep them in a place where your spouse cannot tamper with them.

You may also want to get a post office box. This is important if you are close to hiring an attorney and have not told your spouse. This ensures communications with your attorney are kept private if you are still living with your spouse.

Step 1 - Hire a Wise Advisor

We live in a DIY (Do It Yourself) society. Many believe they can get divorced on their own. You can probably find some forms on the Internet that will allow you to file your own divorce. In fact, if you have no children, have been married for only a few years, have little or no debts, and you and your spouse agree to the divorce and property settlement, you could probably file the divorce without hiring an attorney. But this does not describe the majority of people contemplating a divorce. For most, you need a wise, experienced lawyer to lead you through the process and protect you from the consequences of divorce. Divorce involves many pitfalls and you will not be able to weather the storm alone.

Look for a lawyer who has experience in family law and courtroom experience. Know your lawyer’s philosophy regarding settling versus litigating cases. You don’t need a lawyer whose attitude is fight at all costs. This type of lawyer costs you hard earned dollars in attorney fees and creates conflict rather than seeks resolution. You also don’t want a lawyer who is unwilling to take your case to trial if needed. You need the lawyer who understands the difference between compromise and capitulation. You need a lawyer who seeks to resolve conflict, but if unable, is willing to take your case before a judge for resolution.

Steps to Prepare for Divorce in Mississippi

Several months ago, a fellow blogger (Michael Sherman, Alabama Family Law Blog) offered some sage advice for those preparing for divorce. I have taken his series, modified it for Mississippi, and added to it. Over the next few weeks, I will offer 12 steps to prepare for divorce in Mississippi.

Before we start, let me be clear. I am not advocating divorce for anyone. In fact, if you are unsure, get help from a professional counselor. It could save your marriage. However, if you have decided to proceed forward with a divorce, you need to be prepared. Read these posts over the coming month and you might find some useful tips to assist you in the process. Let’s get started.

Some couples should not be married

In an opinion this week out of the Mississippi Court of Appeals, Justice Irving wrote a separate opinion calling on the Mississippi Legislature to reform Mississippi's divorce laws to allow an irreconcilable differences divorce even when one spouse does not want the divorce.

The case centered around a Monroe County couple who dated for twenty years before marrying. The honeymoon was short-lived as they started to fight constantly following the first year of marriage. The husband filed for divorce based on cruel and inhuman treatment while the wife denied the grounds for divorce and sought spousal maintenance. At trial, the chancellor denied the divorce and ordered the husband to pay spousal maintenance.

Continue reading "Justice calls on Mississippi Legislature to reform divorce laws" »

In a divorce, your electronic musings can end up in front of the judge

For some reason, many people believe there is some anonymity when they send an e-mail or post something online. It is amazing what people will put in an e-mail or post on a MySpace or Facebook page. Some of the most damaging evidence I have used in trial were e-mails. For some odd reason people will say things in e-mails they would never say in public. What is bad about e-mails and online postings is that those words are there for others to read. This is especially true in divorce and child custody cases. You can expect that someone will look at your e-mails and your postings to see what you are telling others.

This was confirmed by a recent article in the National Law Journal which stated, "Armed with printouts from site such as Facebook and MySpace, attorneys have used pictures, comments, and connections from these sites as powerful evidence in the courtroom." Listen up--your online postings are not private. They can become evidence either to prove you are doing something you should not be doing or used to attack your credibility when you have denied something. Look at my previous posts on these issues here and here.

Money can’t buy me love

The Beatles were right, at least according to a survey reported in Forbes. According to the article, a survey of those with a net worth of $1,000,000 or more found almost half of the respondents unhappy in their marriage. More surprising was the fact that 61% of the women surveyed and 43% of the men admitted to being unfaithful within the last 3 years. However, even though almost half were unhappy in their marriage, only 30% said they were contemplating divorce. The reason? According to three-quarters of the men, the fear as to how much money they would lose in a divorce. 51% of the women cited the number one reason for not divorcing was “interference with business dealings.”

The most telling aspect of the study was only about 6% of the respondents had a prenuptial agreement. A properly drafted prenuptial agreement may be able to protect your hard-earned assets in a divorce in Mississippi. If you are considering marriage in Mississippi, you should discuss the issue with your future spouse. While some are reluctant to bring up the issue feeling that it indicates they will divorce in the future, the fact is in today’s society, it is more than a possibility. A prenuptial agreement is an insurance policy. None of us plan on tragedy striking our lives, but we all plan for it everyday when we buy insurance. A prenuptial agreement is similar. Discuss the issue with your fiancé and discuss the matter with an experienced attorney.

Cover your financial bases

Here is an interesting article in the USA Today entitled "Breaking up is hard to do financially." It offers advice for the top 5 financial mistakes couples make when divorcing. For those divorcing in Mississippi, you should discuss this advice with your attorney to ensure you are protected financially.

Who is responsible for the debt?

Here is a common scenario. A husband and wife own a home in Madison, Mississippi. They finance $300,000 of the $350,000 purchase price with a lender. The mortgage is in both of their names. A year after they purchase the house, the husband wants a divorce. The husband moves out of the house in Madison and moves into a house in Brandon. As part of the divorce settlement, the divorce decree states that the wife will take possession of the home in Madison and is obligated to pay the mortgage. The husband thinks he is in the clear. However, the original note on the Madison home is not refinanced. About a year later, the wife quits making payments on the house in Madison and the mortgage goes into default. The result: The lender can sue both the wife and husband for the debt and probably will despite the fact that the divorce decree says that the wife is responsible for making the payments.

This is one of the financial scenarios of divorce discussed in a USA Today article yesterday. There is a common misunderstanding many have on who is responsible for the debt. In Mississippi, if that debt was incurred by both of you during your marriage (both of your names are on the mortgage or both of your names are on the credit card account), although the divorce decree may state one spouse is responsible for paying the debt, if that spouse quits paying, both spouses credit will be impacted and the holder of the note (bank or credit card company) can sue both for the debt. The divorce decree does not change the legal obligation you have to the lender. What can you do to ensure this does not happen?

Continue reading "Who is paying the mortgage?" »

The substance abuser

Two other fault based grounds for divorce in Mississippi are habitual drunkenness and drug use. Under the statute, “habitual drunkenness” and “habitual and excessive use of opium, morphine, or other like drug” are each grounds for a divorce. Attempting to define what is meant by the statute is more difficult.

The cases in Mississippi answering the question of what is habitual drunkenness are few. In those cases where it is addressed, the courts have usually required that threats or some other adverse effect be shown on the marriage in addition to the spouse being habitually drunk. It is a very fact based ground and depends on the circumstances of each case.

Continue reading "Divorce (Part V)—Habitual drunkenness or drug user" »

Annulment v. Divorce—what is the difference?

As a Mississippi divorce lawyer, I've had questions for some folks as to the difference between a divorce and annulment. In Mississippi, the distinction between divorce and annulment can be blurred. Generally speaking, a divorce is the dissolution of a valid marriage and an annulment is the dissolution of an invalid or void marriage. You can view my previous post on the grounds for divorce in Mississippi in addition to the post on what it takes to be a valid marriage in Mississippi.

There are two different broad grounds for annulment in Mississippi. The first is the annulment of a void marriage. A void marriage in Mississippi is either a bigamous or incestuous marriage. A bigamous marriage is one in which one spouse is still married to another person at the time of the other marriage. In addition to being a void marriage, it is also a crime. Under the Mississippi Code, a marriage is incestuous if the person marries their brother or sister, half brother or sister, step-brother or sister, parent, adoptive parent, step-parent, grandparent, step-grandparent, uncle, aunt, first cousin, or their own child’s widow or widower.

Continue reading "Annulment v. Divorce—what is the difference?" »

Think Big Brother is watching, what about your spouse?

Here is another story that will give cheating spouses a sinking feeling in their stomach or will spark an idea for those suspecting their spouse of being unfaithful. According to a recent New York Times article, electronic eavesdropping is on the rise for suspicious spouses. One technology consultant who suspected his wife was cheating on him installed a piece of software (PC Pandora) on her computer. The program took snapshots of her computer screen every 15 seconds and e-mailed them to him. It also records e-mail messages and instant messaging, monitors and records all computer keystrokes, and monitors and records all websites visited. Originally intended as software to monitor children’s computer activities, it is now being used to watch spouses. The software gave the consultant the information he was looking for—his wife was having an affair. A divorce battle ensued. From computer software to GPS tracking devices to hacking into e-mail accounts, suspecting spouses are snooping.

Folks need to understand that if you use a computer or a phone, you are leaving an electronic trail which can easily be followed. Once divorce proceedings begin, the discovery process can allow your spouse to discover e-mails and inspect computer hard drives. Just because you hit the delete button does not mean the data is gone. Many times it is easily recoverable.

If you suspect your spouse is not being faithful in your marriage, you need to seek the advice of an attorney before you put on your cyber-sleuthing hat as there are some federal laws which you must ensure are not violated in attempting to gather electronic information.

Is the toll booth camera catching unsuspecting spouses?

Two recent articles, one out of Oklahoma and one out of Texas, highlight the fact that some spouses’ whereabouts are being tracked when they go through toll booths. While it makes for nice headlines, most divorces in Mississippi will eventually be agreed to even though they may start out with allegations of fault. However, this type of information could prove costly to the wandering spouse. For those folks in Mississippi, you can breathe easily since there are few toll booth cameras to catch your actions. However, you need to realize that in our age of technology, a video camera is not far away and can easily record your actions without your knowledge. If you are involved in a divorce, you should expect that your actions are being watched by others.

A related issue is whether you can date while you are separated. The simple answer is no. You are married until such time as you are divorced—there is nothing in the middle. If you have separated from your spouse and are involved in a divorce, save yourself the heartache and headache involved in fighting adultery charges—don’t date. If you are unsure of what constitutes adultery, then review my previous post on that issue.

Where to file for divorce?

In Mississippi, the state constitution provides that chancery courts have exclusive jurisdiction to hear matters in divorce and alimony. In order to file for divorce in Mississippi, one of the parties to the divorce must have been a resident of Mississippi for at least six (6) months preceding the filing of the divorce. Miss. Code § 93-5-5. See my previous post for exceptions concerning members of the military. Generally speaking, a person “resides” where they permanently live. Residency usually becomes an issue when a person has recently moved from one place to another and the question is whether they intended to permanently change their residency. But the Mississippi Code prohibits a person from filing for divorce if they moved to Mississippi for the “purpose of securing a divorce.” Miss. Code § 93-5-5

The next question is in which chancery court is the divorce filed? In order to answer this question, you must determine where venue lies. Venue, that is where you file your case, is governed in divorce cases by Mississippi Code § 93-5-11.

Continue reading "Where will my divorce be filed?" »

Changing your name in a Mississippi divorce

In Mississippi, you have the right to a name change in a divorce action. If you want to change your name back to your maiden name, let your attorney know so it can be included in the Complaint for Divorce.

When the divorce is granted, the chancellor will sign a final judgment, commonly known as a decree. Although your name is legally changed by the final judgment, you still need to inform certain federal and Mississippi agencies about your change of name. Get some certified copies of the divorce decree and then get ready for some paperwork in order to change your passport, driver’s license, voter registration, and name with the Internal Revenue Service. Don’t forget to change your name with your financial institutions and credit card companies. Here are some helpful links to assist in the process.

Continue reading "Mississippi Name Change--Married or Maiden?" »

7 Tips for a Better Divorce

With Mississippi ranking in the top 15 states per capita for divorces, there are many folks who could use some sage advice on dealing with divorce. Dick Price wrote a nice piece about Tips for a Better Divorce on his blog, Divorce and Family Law in Tarrant County, Texas. Applying these concepts may save you a lot of heartache and ease the pain in a very emotional process.

1. Be prepared. If you are know you will be getting a divorce, spend time gathering information such as financial documents, titles, tax returns, and other information which proves what your assets are and their value. Once you start this process, you might even find assets which you did not know about.

Continue reading "7 Tips for a Better Divorce" »