EXEMPTION BY THE ENTIRETY: A “LAWFUL HOCUS-POCUS”

January 31, 2012 § 8 Comments

Remember tenancy by the entirety from law school? It was that peculiar property creature available only to married couples that was in the nature of joint tenancy, but different. Most of us, other than property lawyers I am sure, relegated the concept to that ephemeral legal never-land populated by other seldom-visited concepts such as quasi-contracts, the rule in Shelley’s case, and the statute against mortmain.

Several years ago entireties had somewhat of a resurrection among professionals who realized that the arrangement created a singular advantage: the entirety is exempt from the independent debts of a spouse. So, for instance, a doctor who is sued for malpractice will not have to worry that his joint real property will be subject to a judgment against him if it is owned with his wife by the entireties. Likewise a lawyer who finds herself in the same boat. A wife need not fret that her property owned by the entirety will be subject to her profligate husband’s gambling debts.

A deed by the entireties also insulates the property from the claims of the predecedent’s estate creditors. In fact, the property is not merely insulated, it is exempt, which means in essence that it is no part of the estate at all. This feature is something that you need to take into account when helping your client make estate planning decisions. You can read more about exempt property in estates here and here.

Death of one party or a divorce terminates the entirety.

In March, 2011, the US Bankruptcy Court for the Southern District of Mississippi, Judge Katharine M. Samson, rendered an opinion and order in In re: Vel Marie Dixon, no. 10-51214-KMS, that is about as well-researched, reasoned and helpful an exposition on the topic that you will find anywhere. It’s lengthy, but it’s definitely worth your time to read and digest for the benefit of your clients.

Here is the pertinent part:

As early as 1868, the high court of Mississippi explicitly recognized that the common law concept of estates by the entirety was in force in the state. See Hemingway v. Scales, 42 Miss. 1, 12-13 (1868). FN6. Furthermore, the Mississippi legislature has statutorily preserved the right of a husband and wife to own land in this manner. See Miss. Code. Ann. 89-1-7; Ayers v. Petro, 417 So.2d 912, 916 (Miss. 1982).

FN6. The Mississippi Supreme Court has provided the following commentary regarding the Hemingway decision:

The cases cited in volume 42 Miss. were the opinions of a tribunal appointed by the military satrap and have no binding authority but must be regarded as res judicata. Lusby v. Kansas City, Memphis & Birmingham Railroad Co., 73 Miss. 360, 19 So. 239 (1896). However, the rationale of Hemingway . . . has received full endorsement by this Court on a number of occasions. See Ayers v. Petro, 417 So.2d 912, 914 (Miss.1982); Cuevas v. Cuevas, 191 So.2d 843, 850 (Miss.1966); McDuff v. Beauchamp, 50 Miss. 531, 535 (1874).

Newton v. Long (In re Estate of Childress), 588 So.2d 192, 195 n.4 (Miss. 1991).

An estate by entirety is a peculiar type of institution, which may only exist between a husband and wife. See Ayers, 417 So.2d at 913-14. Although an estate by entirety is similar to a joint tenancy, the Mississippi Supreme Court has emphasized that there are some fundamental differences between the two types of estates.

The unities of time, title, interest, and possession are common to both [a joint tenancy and an estate by the entirety,] but in an estate by entirety there is an additional unity, namely, that of person. Strictly speaking, a tenancy by entirety is not a joint tenancy but is a sole tenancy, and, while the two estates resemble each other and possess some qualities in common, yet they differ both in form and substance and are distinguishable, and it has been said that the disfavor with which the courts look on joint tenancies does not extend to estates by entirety. The seizin of the tenants distinguishes the two estates, and a marked, and perhaps the principal, distinction lies in the possibility of severance and destruction.

Id. (quoting 41 C.J.S., Husband and Wife, § 33(b)).

As noted in the quotation above, by virtue of “lawful hocus-pocus,” if a property is granted to a husband and wife as tenants by the entirety, the law treats the property as if it is owned by a third, fictional corporate entity consisting of the combined legal personas of the husband and wife. Hemingway, 42 Miss. at 6 (emphasis in original) (Geo. L. Potter, for the plaintiff in error) FN7; see also Newton v. Long (In re Estate of Childress), 588 So.2d 192, 194-95 (Miss. 1991) (“there is but one estate held by only one ‘person’ –the marriage itself”); In re Barber, 339 B.R. at 592 (“Husband and wife are treated as though they were a corporate entity.”). Each spouse is simultaneously “seised of the whole estate and not an undivided half interest.” Newton, 588 So.2d at 198 (emphasis in original).

FN7. It appears that during the time period when Hemingway was published, it was customary to print the arguments of the parties in the reporter along with the opinion of the Court. Throughout this opinion, the Court has noted, by way of parenthetical, when it is quoting from the printed arguments of counsel, rather than the Court’s official opinion.

Several incidents of this form of estate are established in Mississippi’s case law. For instance, in contrast to a joint tenancy, which may be destroyed by one of the joint tenants conveying his undivided interest to a third party, an estate in entirety “may not be terminated by the unilateral action of [either the husband or wife] because they take by the entireties and not by moieties.”FN8. Ayers, 417 So.2d at 914. Additionally, upon the death of one spouse, the other spouse continues in their possession of the whole estate. See Hemingway, 42 Miss. at 13; see also id. at 7 (nothing accrues to the survivor, he or she takes by virtue of their old title, being all the time seised of the whole estate) (J.Z. George, for the defendant in error). Furthermore:

While the marriage exists, neither husband nor wife can sever this title so as to defeat or prejudice the right of survivorship in the other, and a conveyance executed by only one of them does not pass title. Cuevas v. Cuevas, 191 So.2d 843 (Miss.1966); McDuff v. Beauchamp, 50 Miss. 531 (1874); Hemingway v. Scales, 42 Miss. 1 (1868).

Ayers, 417 So.2d at 914.

FN8. “Moiety” means “[a] half of something (such as an estate),” or, “[a] portion less than half; a small segment.” Black’s Law Dictionary 1026 (8th ed. 2004).

Regarding the question at hand, the Mississippi Supreme Court has never explicitly stated, nor does any Mississippi statute specifically pronounce, that an estate held by the entireties is exempt from process. However, neither an explicit statement by a state supreme court nor a specific state statute is required to satisfy the equirements of 11 U.S.C. § 522(b)(3)(B). As long as it is clear from a state’s common law, under the circumstances presented, that process could not be served on the debtor’s property, held as an estate by the entirety, then that property should be exempt from the bankruptcy estate. See 4 Collier on Bankruptcy ¶ 522.10[3], at 522-85 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. 2010) (“Property may be recognized as exempt under section 522(b)(3)(B) to the extent it is exempt from process under a state’s common law.”); In re Holland, No. 05-58959, 2009 WL 2971087, at *2 (Bankr. N.D. Ill. Sept. 8, 2009) (the exemption from process need not appear in a state’s exemption statute, nor need it appear in a statute at all; nor must the statute or case law use the specific word exempt). Under Mississippi’s common law, it is clear that Dixon’s homestead would be exempt from process arising out of her unilateral actions, i.e., the debt that she incurred independent of her husband.

Mississippi case law clearly states that in an estate by entirety each spouse simultaneously is seised of the whole estate, that is title, interest and possession, and the Mississippi Supreme Court has emphasized that no action taken by one of the two tenants in entirety can terminate the rights of the other to the full panoply of rights in the estate. See Ayers, 417 So.2d at 913-14; Newton, 588 So.2d at 196. Allowing judgment creditors to execute process against an estate in entirety by virtue of the actions, i.e., the accumulation and non-payment of debt and the associated liability incurred by only one spouse violates these core principles. Accord In re Barber, 339 B.R. at 593. FN9.

FN9. In contrast to the case discussed herein, the Court recognizes that Mississippi’s case law clearlystates that an estate in entirety may be alienated by the joint act of the husband and wife. Thus, if the couple enters into a mortgage and both the husband and wife sign a deed of trust securing that mortgage, on default, the creditor may legitimately seize the collateral, even if it is held by the married couple as a tenancy by the entirety. See Newton, 588 So.2d at 196 (citing McDuff v. Beauchamp, 50 Miss. 531, 535-36 (1874)).

The Hemingway decision provides support for this finding. In Hemingway, one of the two tenants by entirety, the husband, died insolvent. The probate court decreed that the property held in entirety should be sold “for the payment of his debts.” Newton, 588 So.2d at 195 (emphasis added). The Hemingway Court reversed the lower court’s order, finding that the debts of the husband did not give his creditors the right to impinge upon the wife’s right, under the principles of entirety estates, to continue in her possession of the whole estate. Hemingway, 42 Miss. at 7 and 11-13.

The Court also notes that the Hemingway Court specifically found that Mississippi’s statutes of partition do not apply to estates in the entirety. See Hemingway, 42 Miss. at 12; Miss. Code Ann. 11-21-1, et seq.; see also Newton, 588 So.2d at 199 (“Involuntary partition of real property is not available to tenants by the entirety”) (Prather, J., dissenting). This makes sense, as there is no interest attributable to only one spouse which can be seized based on the actions taken and debts owed by that spouse alone. See Newton, 588 So.2d at 198 (“each spouse is seised of the whole estate and not an undivided half interest”). The only interest in an estate in entirety is possessed corporately by the married couple. Id. at 194-95.

The unique immunity enjoyed by tenants in entirety from process arising out of the liabilities incurred by only one spouse certainly could give rise to abuse. However, the Court’s decision today is the natural fruit of entirety principles reaffirmed consistently over the years by the Mississippi Supreme Court. Indeed, the Mississippi Supreme Court has stated that one of the primary purposes of this unique estate is “to protect” one spouse “from the improvidence of the other spousal tenant.” Newton, 588 So.2d at 196 (citing Cuevas v. Cuevas, 191 So.2d 843, 846-47 (Miss. 1966)). FN10. Today’s decision comports with this policy statement. Since it is state law that creates property rights and defines their scope, unless some federal interest requires otherwise, it is generally not the purview of the federal courts to question the purposes or policies underlying such laws. See Cmty. Nat’l Bank and Trust Co. of N.Y. v. Persky (In re Persky), 134 B.R. 81, 87 (Bankr. E.D.N.Y. 1991). Finally, though it does not bear on the present analysis, the Court notes that the finding above is in accord with the findings of the majority of courts that have considered whether or not estates held by the entirety are exempt from process for liabilities and debts incurred through the actions of one spouse. See J.H. Cooper, Interest of Spouse in Estate by Entireties as Subject to Satisfaction of His or Her Individual Debt, 75 A.L.R.2d 1172, §2 (“In a majority of jurisdictions, it has been held that a creditor of an individual spouse cannot reach the spouse’s interest in an entirety estate during the joint lives of the spouses.”). 

FN10. It appears that this policy has some basis in the historical origins of estates by the entirety. If a joint-tenant was convicted of a felony in pre-colonial England, the share of the jointly owned property owned by that particular joint-tenant was forfeited to the King. However, this policy did not extend to a husband and wife holding property by the entirety. No share of the property held in entirety was surrendered to the King upon the individual conviction of either spouse on felony charges. See Hemingway, 42 Miss. at 7 (J.Z. George, for the defendant in error) (citations omitted).

There are practice implications in tenancy by the entirety not only for property lawyers, but also for probate and family practitioners. Do you have some clients who might benefit from such an arrangement?  

__________________

Thanks to Marcus D. Evans, Esq., for providing the Dixon opinion.

MAKING YOUR UNCONTESTED DIVORCE BULLETPROOF

January 30, 2012 § 1 Comment

We’ve talked here before about whether you should make a record when you present an uncontested divorce.

In Luse v. Luse, 992 So.2d 659, 661 (Miss. App. 2008), the COA held that an appellant who had failed to answer, defend or otherwise appear in the case could not raise for the first time on appeal issues about the sufficiency of the chancellor’s findings.

So what happens when the defaulted party does appear via a timely motion under MRCP 59, say, and asks the chancellor to set aside the judgment because she failed to make the required findings of fact under Ferguson, or Armstrong, or any of the other required checklists of factors? That’s what happened in the case of Lee v. Lee in the chancery court of Desoto County. Corey Lee showed up late for his divorce trial, popping in just as the chancellor was in the middle of his opinion dividing the marital estate, awarding custody, and assessing child support. Corey enlisted a lawyer who filed a timely MRCP 59 motion.

In his motion, Corey challenged the judge’s ruling on the basis that it did not address the Ferguson factors for equitable distribution. The judgment did state that it was based on consideration of the Ferguson factors, but did not spell out the evidence relied on as to each applicable factor as required under Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss. 1997).

On appeal the COA affirmed, citing Luse.

The Supreme Court granted cert, and in an opinion rendered January 26, 2012, in Lee v. Lee, Justice Dickinson said for the court:

¶7. A divorce judgment entered when a party fails to appear is “a special kind of default judgment.” [Mayoza v. Mayoza, 526 So.2d 547, 548 (Miss. 1988)]. And to obtain relief from such judgments, absent parties are required to raise the issues in post-trial motions under Rules 52, 59, or 60 of the Mississippi Rules of Civil Procedure. [Mayoza, 548-49.] Although Corey filed a Rule 59 motion, the Court of Appeals held that the motion did not address the equitable-distribution issue; and, therefore, the issue was procedurally barred.

¶8. In its holding, the Court of Appeals relied on Luse v. Luse, in which, John Luse neither answered his wife’s complaint for divorce nor appeared at the divorce hearing. The chancellor granted John’s wife a divorce and awarded her ownership of marital property. John never filed a timely post-trial motion challenging the property division, so he first raised the issue on appeal, and the Court of Appeals properly held that John’s claim was procedurally barred.

¶9. But unlike John Luse, Corey Lee raised the issue before the chancellor. In his Rule 59 motion, Corey argued that the division of martial property was inequitable. At the hearing on the motion, Corey’s attorney specifically argued that the chancellor had failed to make findings of fact and conclusions of law, as required by Ferguson. Therefore, Corey is not procedurally barred from raising this issue on appeal.

* * *

¶13. By failing to appear at the hearing, Corey forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. Corey did so in his Rule 59 motion and at the hearing following it. The fact that Corey failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.

The decision reversed the COA and the chancellor, setting aside the divorce.

So how do you avoid the same trap the next time you present an uncontested divorce? My suggestion is that you make a point of putting on proof of each factor, and prepare proposed findings of fact and conclusions of fact, incorporating them in the judgment you hand to the chancellor at the conclusion of the hearing. Make specific findings as to each checklist factor that applies in your case. If you are asking for equitable distribution, address the Ferguson factors. For custody, address the Albright factors. For alimony, address Armstrong. And so on through as many as apply in your case. You know in advance (or you should know) what your client’s testimony will be on each point, so simply wrap it up into a neat package for the judge. In the alternative, you lazy lawyers can appear and just put on the proof and ask the chancellor to do it. If the chancellor is in a benevolent mood, he or she might do it for you. Or you may be dispatched to do it yourself and come back another time.

MORE SIGNS OF THE IMPENDING APOCALYPSE

January 27, 2012 § 4 Comments

100,000

January 26, 2012 § 2 Comments

Yesterday this little corner of the blogosphere recorded its 100,000th view. By 3:00 pm we had our 100,028th view. That’s in 19 months.

The statistics page (that you can’t see) tells me that we get an average of 226 views per day. That average includes weekends, when viewing drops to 50-150 a day, depending on Lord knows what.

A typical day has between 200 and 350 views, most typically around 300. I have seen views spike into the 500’s; the highest total being 560 on June 14, 2011, which was a post about the one-year anniversary of this blog.

I’m glad that so many of you find it useful. When I started this I had no idea so many people would touch base so often.

Please feel free to comment. I am sure your silence does not indicate total agreement with what I say. I am open to questions, critiques and pointers about the way you do chancery pratcice where you are (I am even open on this blog to “That’s not the way we do it in Jackson” comments).

JOINT CUSTODY OUT OF THE BLUE

January 25, 2012 § 2 Comments

Neither party has asked for joint custody in their pleadings. They consent to a divorce and agree that the chancellor shall adjudicate custody. The husband testifies that he wants sole custody. The wife testifies that she wants either sole custody or joint custody.

Can the chancellor grant joint custody?

The answer is set out in Crider v. Crider, 904 So.2d 142, 148 (Miss. 2005), where the Mississippi Supreme Court stated:

We hold that when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of “joint application” in § 93-5-24(2). This is the only interpretation that conforms to the primary directive of § 93-5-24(1) that “custody shall be awarded as follows according to the best interests of the child.” It is the chancellor who must determine what is in the best interest of the child, and it is the chancellor who determines the level of commitment parents have to sharing joint custody.  

So the answer is yes, where the parties have consented to an irreconcilable differences divorce, the judge may grant joint custody regardless whether it was specifically spelled out as an option in adjudication of custody.

It would seem under Crider’s language that the parties may not limit the court’s determination of best interest — say, by a stipulation that joint custody shall not be awarded — any more than could the statute. But to my knowledge that issue has not been addressed by the appellate courts.

The trial court must still weigh whether the relationship between the parties is suitable for joint custody. After all, joint custody is inappropriate where the parties are unable to communicate and cooperate.  Lewis v. Lewis, 974 So.2d 265, 266 (Miss. App. 2008); Crider, at 147.

In Phillips v. Phillips, 45 So.3d 684, 695-96 (Miss. App. 2010), the COA upheld the chancellor’s award of joint custody, alternating a week at a time, despite a history of animosity and strained relatiosnhips. Citing Crider, the court said at ¶34 that “The chancellor is in the best position to evaluate the parties’ capabilities to cooperate.”     

In Watts v. Watts, decided by the COA on January 24, 2012, at ¶ 28, the court again affirmed the chancellor’s award of joint custody, and cited Crider. The parties had entered into a consent for divorce leaving the issue of custody for adjudication by the court. Echoing Crider, the COA held that it was up to the chancellor to evaluate the evidence and to decide whether the level of conflict between the parties made joint custody undesirable or unworkable. 

Another post with some ruminations about joint custody is here.

LAWYERS AND VICARIOUS TRAUMATIZATION

January 24, 2012 § 1 Comment

Lawyers who represent people see almost every conceivable form of mankind’s capacity to be inhuman. We see violence and its physical and emotional scars, financial coercion, verbal cruelty, sexual abuse, use of children and other family members as weapons, defamation, and on and on in a breathtaking, seemingly inexhaustable panorama of brutality that seems almost limitless in the scope of its imaginative cunning.

Over time the exposure takes its toll. Some lawyers develop a defensive cynicism that effectively shields them from their clients’ pain, but also prevents them from empathizing. Other lawyers experience burnout that makes them ineffective. Still others experience sleeplessness, irritability, sadness, loss of concentration, difficulty in intimacy, depression, and a panoply of other symptoms. Your clients’ problems too often intrude into your own life and can come perilously close to becoming your own problems.

All attorneys who represent people experience stress. Even extreme stress. Some deal with it in a healthy way. Too many others self-medicate with alcohol, drugs or toxic behavior.

There is research that dubs this phenomenon “Vicarious Traumatization.” It is the process by which a lawyer who comes into contact with the client’s traumatization can become traumatized himself or herself.

Here is a link to a paper published by the American Bar Association entitled Secondary Trauma and Burnout in Attorneys: Effects of Work with Clients Who are Victims of Domestic Violence and Abuse, by Andrew P. Levin, MD.

A lawyer is quoted in the article:

“It actually feels good to hear that I am not the only one who feels depressed and helpless and that these issues are worth studying. Fortunately, the stress has decreased with experience and time for me, but I still have vivid memories of quite traumatic experiences representing victims of domestic violence who were so betrayed that it was difficult to continue to have faith in humankind.”

Read the paper and see whether you recognize yourself there.

WHO ARE THE PARTIES IN A GRANDPARENT VISITATION CASE?

January 23, 2012 § 2 Comments

Who gets to participate in a grandparent visitation case?

MCA § 93-16-5 states:

“All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children … ” [Emphasis added]

MCA § 93-15-107(1), dealing with termination of parental rights, states:

“In an action to terminate parental rights, the mother of the child, the legal father of the child, and the putative father of the child, when known, shall be parties defendant.”

MCA § 93-11-65 allows for a custody action against any resident or non-resident, whether or not having actual custody. MCA § 93-27-205(1) provides that in child custody proceedings between states, any person having actual custody must be joined.

From the statutes, then, the plaintiff is required to join the natural mother, the legal father, and the putative father, when known, and any person having actual custody. The requirement of joinder is not subject to the trial court’s discretion, but rather is mandated through the statute’s use of the word shall. Since the statute is in derogation of common law, it must be strictly construed.

Don’t make the mistake of filing your suit against the custodial parent alone. You might just make a wasted trip to the court house.

DICTA

January 20, 2012 § 2 Comments

  • For map freaks and Mississippi River afficianados: Spectacular Corps of Engineers map of the ancient courses of the Mississippi River.
  • SOPA (Stop Offshore Piracy ACT) and PIPA (Protect IP Act) have generated a lot of controversy recently. If you’re a user of the internet — and you are if you’re reading this — you should be vitally interested in how these laws might affect your access to and use of internet content if they are adopted. CBS (which backs the laws, by the way) has a piece on what you need to know about SOPA and PIPA. Forbes offers its take, asking What are SOPA and PIPA and Why All the Fuss? Yielding to pressure encouraged by sites such as Google and Wikipedia, Congress has delayed taking up the matter, and President Obama has stated he opposes it, probably dooming it; you can read about it here. Unless you’re happy with the idea of the government playing a bigger role in the internet, this is a law that you need to be vigilant about.
  • Sous-Vide cooking.
  • Before you spend that extra $$$ to buy some really special olive oil, you might want to read this NPR piece on Tom Mueller’s book about olive oil scams.
  • Some powerful ways to use LinkedIn for law firm marketing.
  • Tantalizing cooking ideas from New Orleans’ June Yamagishi.

CLARIFYING ATTORNEY’S FEES IN CONTEMPT ACTIONS

January 19, 2012 § Leave a comment

I’ve talked here before about some confusion (in my opinion) on the part of the COA as to the criteria to award attorney’s fees in contempt cases as opposed to other cases. The question that gave rise to the confusion was whether proof of the McKee factors and/or inability to pay would be required to support an award of attorney’s fees in a contempt action.

In Williamson v. Williamson, decided January 10, 2012, the COA set the record straight. Judge Carlton’s opinion sets it out at ¶ 28:

Furthermore, we find no merit to Will’s contention that the chancellor erred in awarding attorney’s fees to Mary due to a lack of consideration of the McKee analysis. Will’s argument fails to differentiate the chancellor’s award of attorney’s fees in a divorce action as compared to a contempt action. In Mabus v. Mabus, 910 So. 2d 486, 490 (¶13) (Miss. 2005), the Mississippi Supreme Court explained that, generally, in divorce actions, appropriate attorney’s fees are awarded in an amount to secure a competent attorney. However, in contempt actions, attorney’s fees are awarded “to make the plaintiff whole.” Id.; see also Patterson, 20 So. 3d at 73 (¶26) (stating that an award of attorney’s fees is appropriate when there is a finding of contempt, and “[n]o showing as to the McKee factors is required”); Bounds v. Bounds, 935 So. 2d 407, 412 (¶18) (Miss. Ct. App. 2006). As stated, Mary introduced an itemization of attorney’s fees into evidence at trial. Will failed to provide sufficient evidence showing that the attorney’s fees testified to by Mary were unreasonable. Therefore, we find no abuse of discretion by the chancellor in finding Will in contempt and in awarding Mary the attorney’s fees she incurred in bringing her petition for contempt. See Mabus, 910 So. 2d at 489 (¶8) (“Where a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney[’s] fees and expenses should be awarded to the wronged party.”).

I think that language pretty well clarifies the law on the point. In contempt cases, contrary to other cases such as divorce, proof of the McKee factors is not required, nor is proof of inability of the wronged party to pay; however, you must put on proof to show the fees incurred and the reasonableness so that the trial judge has some objective standard to apply.

There is one often overlooked avenue for establishing the reasonableness of attorney’s fees. It’s set out in MCA 9-1-41, which reads as follows:

In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided, however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.

In my opinion, the statute is something you can use to your advantage in a contempt case, since McKee proof is not required. But be careful in trying to apply it in other kinds of cases. In Doe v. Doe, 644 So.2d 1199, 1209 (Miss. 1994), the supreme court said:

It is true that Miss.Code Ann. § 9-1-41 (1972) allows an award of attorney fees based “on the information already before it and the court’s own opinion.” However, such discretion still requires some guidelines. Guidelines help to insure that the chancellor’s award is based on factual information and is not arbitrary. This Court accordingly holds that chancellors should grant attorney fees under Miss.Code Ann. § 9-1-41 (1972) after considering the factors for attorney fees as stated in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

Doe was not a contempt case. It was an action for termination of visitation rights based on allegations of sexual abuse. In non-contempt actions the rule is that you will need to put on the proof required by the case law. In divorce cases, for example, that means proof of the client’s inability to pay as well as McKee proof.

SOME SUGGESTED PROVISIONS FOR PSA’S

January 18, 2012 § 2 Comments

Every lawyer has his or her own idea about what needs to be included or not included in a property settlement agreement (PSA) for an irreconcilable differences (ID) divorce. Here are some provisions I have seen in PSA’s through the years that you might find helpful in specific instances.

Protection from debts incurred by the other party:

Debts. If either party has made any debt in the name of or against the credit of the other, the party making such debt shall be solely responsible to pay it promptly and in due course, and to indemnify the other. There are no other joint debts of the parties. Each party shall be solely responsible to pay the debts incurred by him or her in their own name. From and after the date of this agreement, neither will incur any debt in the name of or against the credit of the other, and neither will do any act or thing to impair the credit of the other. Each will indemnify and hold the other harmless for his or her obligation to pay any debt provided for in this Agreement.

Attorney’s fees:

Attorney’s Fees and Costs. Husband and Wife each agree to pay his or her own separate attorney’s fees incurred in obtaining a divorce on the sole ground of irreconcilable differences.

Where other documents will be necessary to finalize the entire settlement:

Execution of Documents. Husband and Wife each agree to execute and deliver promptly any and all documents, papers, agreements, assignments, titles, bills of sale, contracts, deeds, Qualified Domestic Relations Orders (QDRO’s), and other papers of every kind and nature whatsoever deemed necessary by the other to effect the spirit and intent of this Agreement.

To confirm and ensure that there are no unwritten or side agreements:

Entire Agreement. This Agreement constitutes the entire agreement between the parties, and each acknowledges that there are no other or further agreements not expressly included herein. This Agreement is contractual, and not merely a recital. The parties agree that no part of the consideration for this Agreement is any promise, inducement, representation, or agreement to obtain or maintain any divorce action in any Court. Each party acknowledges that this Agreement is entered into freely and voluntarily, without force, duress or influence by any person.

Release of all claims:

Final Settlement and Release of all Claims. Husband and Wife acknowledge that they have read this Agreement and carefully considered the same, and do further acknowledge that this Agreement permanently and finally resolves all marital and personal disputes between them, including, but not limited to, any and all claims for alimony, personal injury, defamation, invasion of privacy, torts of every kind and nature, and division of property rights between the parties hereto, and they do hereby mutually release each other from all claims that each has against the other, other than as specifically set forth in this Agreement, .

Where the parties want the agreement to be enforceable whether or not approved by the court*:

Approval by Court. The parties agree and stipulate that their Agreement shall be made a part of, and shall be incorporated into the Court’s Judgment of Divorce on the ground of irreconcilable differences. The parties understand and acknowledge that, although this Agreement is subject to approval by a court of competent jurisdiction in order for it to be incorporated into and made a part of any Judgment of Divorce between them, it shall nonetheless be a binding and lawful contract between them, and that its enforceability shall not be affected in any way by its approval or non-approval by any court in connection with any divorce action between them. If either party files any contest to a divorce between them, this Agreement shall nonetheless be enforced in all of its terms.

A useful provision to ensure that there are no open-ended obligations:

Date of the Agreement and Time to Perform. The date of this agreement shall be the date when it has been executed by both parties. If no specific time limit is stated for taking any action prescribed in this agreement, then the parties agree that all such actions will be accomplished in a reasonable time, but not later than thirty (30) days from the date of entry of any judgment of divorce between the parties on the sole ground of irreconcilable differences.

Where one party is not represented:

Representation. Husband is represented by [attorney]. Wife is not represented by an attorney, and she is representing herself, in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife is fully competent to do so, and she is under no legal or other disability. Wife understands that the law firm of [attorney] represents Husband alone, and Wife further acknowledges that she has relied on her own best judgment in connection with the execution of this agreement and in connection with any divorce proceeding between the parties, and that she has neither received, nor expects to receive, any counsel or advice from Husband’s attorney. Wife understands that she is and has been free to consult with any attorney at any time in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife understands that she should not sign this Agreement unless and until she understands all of its provisions in full.

Clarification that tax advice has not been rendered:

Tax Advice. The parties acknowledge and understand that there may be certain tax consequences pertaining to this Agreement, and that each of them should obtain independent tax advice from qualified tax accountants or tax counsel prior to signing. Husband acknowledges that he has not received tax advice from his attorney in connection with this Agreement and a divorce.

Closing the door on a party claiming later that the property should have been appraised:

Fair Division. The parties agree that this Agreement is a fair division of their assets and a fair allocation of debt between them. They acknowledge that the most accurate method of determining values of assets would be to have them appraised, but they agree to save time and money as to values by relying on their own best judgment.

If a former name is to be restored, it is a good idea to include that agreement in the PSA:

Name Change. Wife may, at her sole election, have her name changed to a name of her choosing in any final Judgment of Divorce between the parties.

There is no guarantee that any of these provisions will be effective in any given court. I am offering them as a suggestion for points you might want to cover in your own PSA’s. There are certainly better or other ways to state the same points.

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* “Today we hold that a property settlement agreement executed in contemplation of a divorce based upon irreconcilable differences is unenforceable when one party withdraws from the irreconcilable differences proceeding and seeks a divorce on grounds other than irreconcilable differences. Much confusion may be avoided by inserting appropriate language within the property settlement agreement which specifically addresses this contingency … the contract should specify, with particularity, within its four corners, whether it is to be limited to an irreconcilable differences divorce or whether it is intended to be binding in a divorce granted on any other grounds.” Grier v. Grier, 616 So.2d 337, 341 (Miss. 1993) [Emphasis added]. The unmodifiable (i.e. property settlement) provisions of the PSA  may be enforced by the court sans a divorce, but the modifiable (i.e. child support and custody and periodic alimony) issues may not.

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