A DOUBLE DIVORCE MISFIRE (OR MISFORE, OR MISFAIR)

February 26, 2013 § 5 Comments

The case of Fore v. Fore, handed down February 19, 2013, by the COA, is one of those cases that leaves you scratching your head in wonderment. Oh, and the Fore decision was written by Judge Fair. Fore by Fair. You can’t make this kind of stuff up.

Anyway, what happened was that Darlene Fore, age 57, filed for divorce charging her husband, Cotton, age 70, with post-separation adultery. Cotton counterclaimed, charging Darlene with post-separation adultery. Darlene added that, if she were to be denied a divorce, she wanted separate maintenance.

As the opinion states, “The divorce was vigorously litigated, as evidenced by the twenty-five single-spaced pages of the trial court docket. For eighteen months the parties enthusiastically pursued all means of discovery allowed by the Mississippi Rules of Civil Procedure. Private investigators were hired. Contempt pleadings, motions for continuances, mediation attempts, amendments of pleadings, and volumes of subpoenas were filed, pursued, and argued.”

The chancellor bifurcated the trial so that the divorce issues would be tried first and separately from the remaining issues.

The trial took five days and produced a trial transcript of more than 800 pages.

The judge rendered a seven-page opinion denying either party a divorce, finding that neither had proven the ground pled by clear and convincing evidence. Oh, and he denied Darlene’s plea for separate maintenance because she testified that she would not return to live with Cotton under any circumstances.

So, after the dust cleared, neither party had a divorce, and Darlene was out in the cold with no support and no Cotton to go home to.

The COA affirmed, deferring to the chancellor’s scope of authority on the facts, and finding that his conclusions of law were correct.

What is the head-scratcher here is that, if both parties wanted a divorce, why did they not just enter into a consent? What would be the down side? If alimony and equitable distribution were issues on trial of the consent, they could still have the satisfaction of putting on proof of how despicable each other were while being assured that there would be a divorce. It’s hard for me to understand, with the consent statute, why this would happen.

It may be that one of the parties out of pure stubbornness refused the idea of a consent. That does happen from time to time. When I practiced I had to cajole and convince more than one divorce client that a consent was the best way to go, and that we were not giving anything up.

After I had written this, I found that Phillip Thomas had a post on his blog on this very case. As a lawyer who does not do divorce work, he found the outcome exceedingly difficult to understand. Join the crowd, Mr. Thomas.

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