April 13, 2011 § 4 Comments

Should you make a record when presenting an uncontested divorce?  I usually leave it up to the lawyer.  If you’re making that decision, you should consider the COA decision in Simmons v. Simmons, rendered March 29, 2011.

In that case, the appellant failed to appear or defend, and his ex-wife went ahead and presented the case as an uncontested divorce.  The chancellor entered a judgment granting his ex-wife not only a divorce, but also the entire marital estate and attorney’s fees.  Joey presented several issues on appeal, one of them that his ex had failed to make a record, and as a result there is no evidence to support the chancellor’s award.

The COA opinion, written by Judge Roberts, cited Luse v. Luse, 992 So.2d 659, 661 (Miss. App. 2008) for the proposition that there is nothing in MCA 93-5-17(1) that requires transcription of an uncontested divorce hearing, and there is a presumption that there is sufficient evidence to sustain a decree if one is entered by the chancellor.

It’s still up to you whether or not to make a record, but it may just be counterproductive to have one.  if you make a record, it seems that you are creating something for the other side to use as a target, and they just might hit the jackpot on a lucky Tuesday with the COA.  On the other hand, if you make a perfect record, in a child custody case, for example, you might seal off any attack.  What do you think?

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  • randywallace says:

    Interesting case on this topic came down today.

    Lee v. Lee http://courts.ms.gov/Images/Opinions/CO74805.pdf

  • Randy says:

    I typically do not, but that is out of convenience. Some Chancellors have required me to do so. Simply a matter of preference, but some Chancellors require the parties to the case to be present for testimony and some only review the file to make sure the 60 days have elapsed. Just part of the local rules that are not written in the local rules.

    • Larry says:

      I used the term “uncontested” as we use it in this district and neighboring districts, meaning a fault-ground divorce where no answer or other pleading has been filed, there is no contest of record, and no appearance. The fact scenario in Simmons fits those criteria. I should have been more specific in my terminology.

      There’s no question that a record is not required in an irreconcilable differences (ID) divorce that is resolved by a property settlement agreement. An ID divorce based a consent would, of course, require a record on the contested issues.

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You are currently reading UNCONTESTED DIVORCE: ON OR OFF THE RECORD? at The Better Chancery Practice Blog.


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