The Un-Divorce

September 11, 2018 § 1 Comment

Many family lawyers complete their entire careers without filing an action to revoke a divorce. Most, like I, have handled a couple.

You can find the provision to revoke in MCA § 93-5-31. Here it is in its entirety:

The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.

So, all that is required is a joint petition and evidence satisfactory to the court that the parties have reconciled. I emphasized “required” because the language of the statute leaves a lot to the imagination.

For instance:

  • What does “under such regulations and restrictions it may deem proper to impose” mean?
  • What evidence is “satisfactory?
  • Is a record required?

Most chancellors nowadays have enough to do without concocting arcane regulations and restrictions. I think it’s safe to assume that you can file that joint petition, set it for hearing, and put your parties on the stand for brief testimony to the effect that they have resumed living together and want to be restored to all of the benefits and emoluments of marriage. But that might not be enough for your favorite chancellor. You should inquire about the kind of evidence the judge wants to hear. Satisfactory evidence is in the eye and judgment of the beholder, and the appellate courts will give the judge’s ruling “great deference.”

What about a record? The case of Carlisle v. Allen, 40 So.3d 1265 (Miss. 2009) is illustrative. In that case, the parties had filed their joint application, but the husband died before it could be presented. The wife went ahead with the petition, over the estate’s objection. Here is how the MSSC described the evidence that the chancellor found to be satisfactory:

¶ 4. Janet filed for reconsideration and testified to the following facts regarding her reconciliation with Charles: the two had maintained their relationship after the divorce; Charles and Janet had continued to talk and go out together; Charles had a private telephone line put in Janet’s house so he could call her; the two had spent every weekend together from March 2006 until Charles’s death in June 2006; Charles had called her multiple times a day while she was recovering from a hip injury she incurred following Hurricane Katrina; Charles had plans to sell his house and move back into the former marital home with Janet; and the couple had opened a joint banking account.

¶ 5. Janet also testified that the reason the couple initially had divorced was that Janet had become sick during the marriage and Janet’s mother, Mary Davis, had encouraged her to get divorced. Janet testified that Charles did not come into the courtroom the day they were divorced. Regarding their relationship after the divorce, Janet stated, “we were always close. It was like we were never really divorced.” Once they filed the petition to revoke the divorce, the couple both began wearing their wedding rings.

¶ 6. On cross-examination, Janet testified that Charles had paid the bills at his house, and—other than the bill for the phone line Charles had placed in Janet’s home—Davis had paid the bills at her house. After Charles’s death, his body was found at his home by his housekeeper, Beverly Slaydon. Janet was at her home and was informed of his death by Slaydon.

¶ 7. Davis testified that the coroner sent Charles’s personal effects to Davis. She said she supposed the coroner did this because of her daughter’s relationship with Charles.

¶ 8. Slaydon testified that she had met Janet while working for Charles in his home. Slaydon testified that she often had talked to Janet on the phone, but Charles would not give her Janet’s phone number because it was “just for him and [Janet].” She testified that Charles was on the phone with Janet constantly, that Janet regularly had spent weekends at Charles’s house, and Charles and Janet would hold hands, talk, and laugh. In her opinion, Charles and Janet loved each other very much. Finally, Slaydon testified that the only other woman she ever saw at Charles’s home was Janet’s personal care provider, Patricia Beard.

¶ 9. Beard cared for Janet as she recovered from a hip injury and, during that time, drove Charles and Janet to Poplarville to file the petition to revoke their divorce. She saw Charles sign the joint application and take it to the courthouse. She testified to seeing Charles three to four times per week, and said that Charles would bring Janet lunch, flowers, or presents. She stated that Charles and Janet would spend hours together on the phone. In her opinion, Charles and Janet had a very loving and affectionate relationship. It was her understanding that the couple had wanted to have their divorce revoked and that Charles had planned to return to the marital home. She stated, “[Charles] never felt that they were divorced. He wanted to be with her. He told me that she was his life partner.” Finally, Beard testified that Charles had asked her to find his wedding band, and she had seen him wearing it.

¶ 10. Carlisle testified that he was a close friend of Charles’s, and he had known him since 1969. He stated that he had prepared the application to revoke the divorce, but that it was his understanding that Charles “never intended to marry [Janet] or set aside the divorce.” He further testified that he previously had prepared four or five applications to revoke the divorce for Charles, but Charles had thrown those applications away. Carlisle thought Charles felt cheated out of the marital home in the divorce, and was using the revocation of divorce to “recover what he thought was rightfully his.”

¶ 11. Carlisle further testified that he regularly had visited Charles and that he never had noticed signs of anyone staying with him. When he visited Janet after Charles’s death, Carlisle said the first thing Janet told him was that she was not going to pay for the funeral arrangements. As a result, he made a number of the funeral arrangements personally. However, Janet testified that Carlisle volunteered to make the funeral arrangements and refused to allow her to pay for the service. Finally, Carlisle testified that Charles had a personal relationship with a female attorney before and after Hurricane Katrina. While he did not know the woman’s name, it was someone other than Janet.

That’s pretty detailed, but considering that it became contested it was helpful for the wife that it was so detailed.

A highlight of Carlisle is that death does not abate the action.

The effect of a divorce is to return both spouses to single status. Revocation of the divorce does not have the result of returning the parties to marital status during the time that the divorce judgment was in effect. “Nothing in this statute authorizes the chancellor to find that this statute revokes the prior decree to such an extent as though the parties were never divorced so that any act by either of the parties in the interim between the divorce decree and the revocation of that decree could be construed by the law to be an offense against their marital status. The purpose of the statute is to encourage the reconciliation of broken marriages, not to place the parties in the position of unknowingly giving offense to the marital status once it has been restored.” Devereaux v. Devereaux, 493 So.2d 1310, 1313 (Miss. 1986). Revocation, then, is prospective in its application even though the divorce judgment is revoked.

Tagged:

§ One Response to The Un-Divorce

  • If one of the parties was obligated to pay alimony or obligated to any other financial obligations, be sure to state in the revocation whether those obligations have been satisfied by the payor or that the receiving party has waived compliance.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

What’s this?

You are currently reading The Un-Divorce at The Better Chancery Practice Blog.

meta

%d bloggers like this: