Mississippi Family Law Blog

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.

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.

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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.

A copy of the worksheet I have clients complete in order to comply with Mississippi Chancery Court Rule 8.05 is found here. Use it as a guide in collecting your financial information. Once you answer the questions below, completing this form should be relatively easy.

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.