Senate kills bill to abolish alienation of affection in Mississippi
A bill intended to abolish the tort of alienation of affection in Mississippi died in committee. SB2057 was referred to the Senate Judiciary committee and died in committee. So the tort will live on in Mississippi. Paramours beware.
Reported 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.
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
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" »
Mississippi Court reverses Chancellor for not making deductions before calculating child support
The Mississippi Court of Appeals reversed a Jones County Chancellor for failing to make the statutory deductions from the non-custodial parent's gross income before calculating the child support owed. In Holloway v. Holloway, the Chancellor failed to make any deductions from the husband's gross income before making a determination of what he owed in monthly child support. Mississippi Code Section 43-19-101(3)(b) is explicit that certain mandatory deductions are subtracted from a non-custodial parent's gross income before calculating child support owed. In this case, the Chancellor failed to make any deductions for taxes paid, so the amount of child support awarded was based on his gross income, not his adjusted gross income.
It is difficult to understand what the Chancellor was thinking in this case as making the mandatory deductions from the gross income before calculating the child support owed is a rather elementary situation.
Reported by: Robert M. Kisselburgh, Mississippi Divorce Attorney
Mississippi Supreme Court resolves conflicting opinions in irreconcilable divorces
Last week, the Mississippi Supreme Court settled a dispute to a technical question in irreconcilable divorce cases. Many times, one party will file for divorce alleging a fault-based ground but also alleging irreconcilable differences as an alternative ground. As the case proceeds, the parties agree to divorce on irreconcilable differences. Before the court can approve the divorce on irreconcilable differences, the party that alleged fault-based grounds must file a motion to withdraw those grounds and the court must sign an order withdrawing those grounds. That is what Mississippi Code Section 93-5-2(5) requires. If the Court approves the divorce without the fault-based grounds being withdrawn, then the judgment is void. There is one exception to this rule.
Under Mississippi Code Section 93-5-2(3), the parties may agree to a divorce based upon irreconcilable differences, but submit for the court’s determination other matters such as child custody, support, or property division. In those cases, the parties must file a written consent, signed by both parties, stating that the parties agree to divorce based on irreconcilable differences and voluntarily consent to permit the court to decide the remaining issues. If one of the parties previously alleged a fault-based ground before the parties agreed to irreconcilable differences, that party is not required to file a motion to withdraw the fault-based grounds. In O'Neal v. O'Neal, decided last week, that is what occurred.
Continue reading "Mississippi Supreme Court sets the record straight" »
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" »
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.
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.
Mississippi man seeks reduction in alimony, Court says no.
In a Lauderdale County, Mississippi case decided this week by the Mississippi Court of Appeals, the wife was originally awarded $3,250 a month in alimony. Seven years later the trial court reduced the alimony to $2,900 a month. Seven years later, the husband filed a complaint seeking to reduce or terminate the alimony. After a trial on the matter, the chancellor denied his request to modify the alimony. The husband appealed.
The issue on appeal was whether the parties' financial situations had changed such that a modification of the alimony was warranted. The Court first noted the general rule regarding modification of alimony.
"Alimony awards by the court or by an agreement incorporated into the decree of the court, if not lump sum, have long been subject to modification upon proof of material change in circumstances subsequent to the entry of the decree because of public policy."However, the material change "must not be one that is anticipated by the parties at the time of the original decree." If there has been a material change in circumstances, then the Court must apply the Armstrong factors. In applying those factors, the Court stated, "the chancellor must compare the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree."
Father claims fraud and wants child support money back--Court says no.
A Mississippi man who paid child support for 19 years found out he was not the biological father and wanted his money back. In this case out of Sunflower County, Mississippi, the man and woman had a relationship during which time the woman gave birth to a son. Shortly after the child was born, the relationship soured and the couple split. One month later, the woman executed an affidavit naming the man as the father of the child. The Mississippi Department of Human Services (DHS) contacted the father and he agreed to voluntarily pay child support.
Almost 20 years later, a friend suggested that he was not the father, so the man petitioned the court for DNA testing which showed he was not the biological father of the child. He filed a petition to terminate child support as well as claimed a refund for the amounts paid. The chancellor granted both. DHS and the mother appealed.
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" »
Covenant Marriage Bill Dies in Mississippi House
In an update to a previous post, the House killed a bill enacting covenant marriages in Mississippi. An amendment was added to HB 1088 by the Senate which would have authorized covenant marriages. However, the bill died in the Mississippi House on April 10th.
Do children have the final say in who they live with following divorce? Not in Mississippi
In my previous post, I spoke about a child custody case out of DeSoto County, Mississippi. In that case, the 16-year-old daughter and 12-year-old daughter both testified in court that they wanted to live with their father as opposed to their mother who had custody. Many believe that once a child reaches a certain age, their decision should be final on who they live with. Not in Mississippi.
This week the Mississippi Court of Appeals again reiterated the rule in Mississippi. It stated:
Continue reading "The child's word is not the last one in a Mississippi divorce" »
Proof needed in change of custody suit
This week the Mississippi Court of Appeals upheld a DeSoto County chancellor’s denial of a father’s request for change of custody. In Lewis v. Lewis, the mother was granted custody of the couple’s three children when they divorced. Fourteen months later, the father moved for a change of custody. The father had remarried and claimed to have a more stable home environment than his ex-wife. He also thought there were several negative changes at his ex-wife’s since the divorce. The ex-wife’s boyfriend and her youngest son had a physical altercation (the evidence showed he grabbed the boy’s arm once); the son was in counseling; another child was acting out and vandalizing property; and the son was three grade levels behind in school for reading. The father also thought his ex-wife’s boyfriend had a negative influence on the children by spending too much time at her house and making sexual advances towards the mother in the presence of the children. He also alleged that the children spent too much time in their grandmother’s care.
As stated in a previous post, the key in a change of custody is to show a material change in circumstances since the previous custody order which adversely affects the child’s welfare. There is no bright line rule as to what constitutes a material change in circumstances. In this case, a number of factors worked against the father.
Continue reading "Change in custody denied in Mississippi case " »
Mississippi Court refuses to return property hidden for purposes of fraud
This week the Mississippi Court of Appeals upheld the decision of a Jones County Chancellor who refused to transfer property back to the original owner given the man transferred the property to his live-in friend for the purposes of defrauding Medicaid.
Rickey Ellzey and Sherry James started living together in Jones County, Mississippi in 1979. Later, Ellzey inherited some land in Jones County after his father died. In 1994, Ellzey had a heart transplant. He qualified for Medicaid assistance from the State of Mississippi which helped pay his medical bills. However, he learned an oil well on his inherited property would soon produce royalty checks. Fearing this newfound wealth would terminate his Medicaid benefits, he deeded the property to Jones with the intent to get the property back once his medical bills decreased.
Continue reading "Mississippi man admits fraud, but wants property back" »
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 Mississippi, court can't require child support past 21st birthday.
In a case last week out of Jackson County, the Mississippi Court of Appeals reaffirmed the rule that a parent can not be obligated to pay for a child’s expenses past the age of 21. Daniels v. Bains was a paternity action and child support case. After DNA testing proved Daniels as the father, the court ordered Daniels to pay child support. Part of the support order required Daniels to pay for his daughter’s college expenses. Specifically, he was required to pay all of his daughter’s undergraduate college expenses and one-half of the expenses for graduate school, conditioned on his daughter’s grades.
On appeal, Daniels argued the order required him to pay for expenses after his daughter turned 21, the age of emancipation in Mississippi. The Mississippi Court of Appeals agreed and reversed the part of the order requiring him to pay beyond his daughter’s 21st birthday. As the court reiterated, Mississippi Code Sec. 93-11-65(8) states in part, “the duty of support of a child terminates upon the emancipation of the child.” Emancipation occurs at the latest when the child turns 21 years old. For more discussion on this issue, see my previous post.
In Mississippi, unlike a majority of states, a child is emancipated at the latest when they turn 21 years old. Once emancipated, a court cannot obligate the parent to pay child support, whether it is basic living expenses or expenses related to college.
Can an alimony award be modified in a Mississippi divorce?
In order to determine whether alimony can be modified following a divorce, you must first determine what type of alimony was awarded. Generally speaking, periodic alimony, just like rehabilitative, can be modified. Lump sum alimony, along with reimbursement, can not be modified. The reasoning for the latter is that lump sum and reimbursement alimony are akin to a property settlement. But what if you were awarded periodic alimony in your divorce. Can it be modified years following the divorce and if so, how long after the award? These issues were addressed in a case this week out of Wayne County, Mississippi.
In Austin v. Austin, the parties agreed to an irreconcilable divorce in 2001 after 18 years of marriage. Under the terms of the child custody and property settlement agreement, the wife was given custody of the three children and the husband agreed to pay $1,000 a month in child support, $30,400 on March 15th each year, and $15,200 on August 15 each year (essentially $4,800 a month in child support). He also agreed to pay alimony of $1,000 a month and 35% gross of all bonuses and other compensation with the exception of his monthly draw.
Continue reading "Mississippi Court of Appeals affirms reduction in alimony and child support" »
In Mississippi, moral fitness plays role in child custody
Last week, in a case out of Rankin County, the Mississippi Court of Appeals affirmed the chancery court awarding custody of the couple’s minor child to the father. At trial, there were allegations of adultery, alcohol use, and downloading pornography onto the family computer. In fact, both parties called computer experts to testify at trial in an attempt to establish who downloaded the pornography.
In awarding custody to the father, the chancellor called into question the moral fitness of the mother, one of the Albright factors, given her admitted adultery, alcohol use and traffic violations in addition to an unstable work history—five to six jobs in a three-year-period.
Continue reading "Mississippi Court upholds child custody to father" »
Can Johnny decide he wants to live with Dad?
Maybe. Mississippi Code 93-11-65(1)(a) provides in part:
“If the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child.”
Continue reading "Do children have a say in which parent they live with?" »
If my ex's income doubles next year, can I seek a change in child support?
Yes. In Mississippi, there is a test, just like in my previous post about child custody modification, which must be followed to determine this issue. The test requires the moving party to prove:
“that a material change in circumstances has occurred since the entry of the decree, that such change was unforeseeable at the time of the decree, and that the change was not caused by willful or bad faith actions of the moving party’s part.”
Continue reading "Child Support (Part III)—Can a child support order be modified?" »
Yes. Although the Mississippi Code states that the child support guidelines are presumed to be reasonable, this presumption can be rebutted if the chancellor makes a specific finding that the application of the guidelines would be unjust or inappropriate. The factors which could justify a deviation from the statutory guidelines are:
Can the judge change custody after the divorce?
The short answer is it depends. According to Mississippi courts, the test for modifying child custody is that the non-custodial parent must prove by a preponderance of the evidence (more likely than not):
Does Dad have a chance of getting custody of his younger children in a Mississippi divorce?
For many years, fathers of younger children were discriminated against by a belief that children of a younger age (“tender years”) were better suited to be cared for by their mother rather than father. Courts regularly awarded custody of younger children to mothers over equally qualified fathers. Fortunately, this doctrine, know as the “tender years doctrine” in Mississippi, has faded some with time.
In a case out of Madison County, the Mississippi Court of Appeals ruled on this issue when a father was granted custody of his two 5 year old boys. The mother, who was living with an alcoholic man who had been arrested several times, argued that the tender years doctrine should have compelled the chancellor to grant her custody of her boys.
Continue reading "Do Mississippi courts favor mothers having custody of younger children?" »
Robert M. Kisselburgh
