Divorce | The Better Chancery Practice Blog

BETTER CHANCERY PRACTICE FAQ

October 8, 2010 § 2 Comments

My 8.05 financial statements stink. How can I improve them?

Here are Ten Tips for More Effective Rule 8.05 Financial Statements.

Is my estate ready to close?

Check out this Checklist for Closing an Estate.

I think I need to file a habeas action. Any tips?

This Habeas Corpus Step by Step should help.

One more time: what are those child custody factors I need to prove at an upcoming trial?

The Albright factors are what you’re looking for.

Help! We need to sell some real property in an estate, and I don’t know where to start?

How to Sell Real Property in an Estate may be just what you need.

I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before. What do I need to do?

This Outline for Handling a Minor’s Settlement will get you started.

My mail has an MRCP 41(d) notice in it this morning. I remember you said something about it, but I don’t have time to look for it. Can you remind me what I am supposed to do?

<Sigh> Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door.

I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify. Any ideas on what I should do?

Try looking at Proving Tax Effects of Alimony.

My Chancery Judge is really nitpicky. How can I draft my adoption Complaint to satisfy him?

Are you talking about me? Whatever. Here is a post on pleading Jurisdiction for Adoption.

Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire. Any suggestions? I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.

You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines. Until you do, try reading “High Waters” and Burlap Suits. It won’t change anything, but it may help you to feel better.

TRIAL BY CHECKLIST: SEPARATE MAINTENANCE

September 20, 2010 § 8 Comments

A practice tip about trial factors is here.

In the case of Shorter v. Shorter, 740 So.2d 352, 357 (Miss. 1999), the Mississippi Supreme Court stated that six criteria must be considered in setting awards of separate maintenance:

The health of the husband and the wife;
Their combined earning capacity;
The reasonable needs of the wife and children;
The necessary living expenses of the husband;
The fact that the wife has free use of the home and furnishings; and
Other such facts and circumstances.

Also see, Honts v Honts, 690 So.2d 1151, 1153 (Miss. 1997).

While an award of separate maintenance should provide for the wife as if the couple were still cohabiting, the allowance should not “unduly deplete the husband’s estate.” Kennedy v. Kennedy, 662 So. 2d 179, 181 (Miss. 1995) (quoting Thompson v. Thompson, 527 So. 2d 617, 622 (Miss. 1988)).

IS MY DIVORCE FINAL? YES. UH, NO. OKAY, YES. AT LEAST I THINK IT IS

September 13, 2010 § 2 Comments

We all hope that when a judgment of divorce on the ground of irreconcilable differences is entered, the result is a final resolution of the parties’ marital strife. Sometimes, though, the disputes come reeling back to life, zombie-like, careening through the trial courts, or try to, anyway. Consider:

In Irby v. Estate of Irby, 7 So.2d 223 (Miss. 2009), the Mississippi Supreme Court finally laid to rest the troublesome question whether a divorce granted on the ground of irreconcilable differences is void because the parties failed to withdraw their contested pleadings. In that case, the husband and wife were divorced based on a consent. Husband died shortly after the judgment was entered, and wife sought to set aside the judgment on the basis that the parties’ contested pleadings had not been withdrawn before the judgment was entered. The Supreme Court held that the consent operated as a withdrawal of the contest, and that it was not necessary to take any other action to withdraw pleadings.

The Irby decision effectively reversed the Court of Appeals decision in Pittman v. Pittman, 4 So.3d 395 (Miss. 2009), rendered only six weeks before Irby. The reversal apparently did not go down well with the Court of Appeals, however. In Sellers v. Sellers, 22 So.3d 853 (Miss. App. 2009), decided 2 months after Irby, the Court of Appeals fired back its disagreement with Irby in lengthy dicta that had nothing to do with any issue raised in the Sellers case. Having gotten that off their chest, the Court of Appeals six months later again followed Irby in the case of Cossey v. Cossey, 22 So.3d 353, 357 (Miss. App. 2009), where they stated through figuratively clenched teeth, “We reach this decision, as we did in Sellers, by strictly applying the supreme court’s recent interpretation of section 95-5-2(3) and (5).”

Bottom line is that when you have a consent that meets all the statutory requirements, you do not need to withdraw contested pleadings. But why invite scrutiny? It’s simple to include in your consent express language that the parties agree that all contested pleadings are withdrawn and dismissed. Or, for an even greater comfort level, you can file an agreed motion followed by an agreed order withdrawing the contest.

The issue in McDuffie v. McDuffie, 21 So.3d 685 (Miss. App. 2009) was whether the Chancellor acted improperly in denying Michael McDuffie’s request to withdraw his consent after the trial had begun. Michael and his wife Kathi had entered into a consent to divorce, which met all of the statutory requirements and had been duly filed. The trial was percolating along nicely when, much to Michael’s dismay, Kathi admitted in her testimony that she had committed adultery. Stung by the revelation, Michael moved to withdraw his consent, which the Chancellor refused, based on the facts that the consent had been filed three years before the trial was commenced, several motion hearings had intervened, and the trial had begun. The Court of Appeals upheld the Chancellor’s decision based on § 93-5-2, MCA, which states in part that the consent, ” may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto.” It was not error in the circumstances for the court to refuse to grant leave to withdraw.

Can the trial court grant a divorce on irreconcilable differences where there is no pleading properly before the court requesting it? In Tyrone v. Tyrone, 32 So.3d 1206 (Miss. App. 2009), husband had filed a complaint for separate maintenance, and wife filed a response that included a counterclaim for an irreconcilable differences divorce and a motion to dismiss husband’s complaint. The trial judge dismissed husband’s pleading, but never conducted a hearing on wife’s counterclaim for divorce. Husband subsequently filed a second complaint for separate maintenance, and wife responded with a motion to dismiss. In a later hearing dealing with some contempt issues, the trial judge urged the parties to settle the matter as an irreconcilable differences divorce, which they did, and he granted a divorce on the ground of irreconcilable differences. Wife appealed, and the Court of Appeals reversed.

If you read Tyrone, you will doubtless be struck by the tortuous route from pleading to final result at the trial level. If you come away with the conclusion that there must be a pleading before the court, filed more than sixty days previously, requesting irreconcilable differences, and a consent or property settlement agreement that meets the statutory requirements, that is enough.

A similar result was reached in Johnson v. Johnson, 21 so.3d 694 (Miss App. 2009), where the trial court granted a divorce on the ground of irreconcilable differences where there was no agreement, and the parties had not executed a consent.

Perhaps the most zombie-like case of all is Henderson v. Henderson, 27 So.3d 462 (Miss. App. 2010), in which the trial judge signed a judgment of divorce on April 23, 2002, but the judgment was never filed with the clerk. Some time later, the case was dismissed for inaction pursuant to Rule 41(d), MRCP. In 2005, husband discovered the omission and filed a Complaint for Divorce on the ground of desertion. In 2006, wife filed a motion asking the Chancellor to correct the oversight by entering the judgment nunc pro tunc to April 23, 2002, which the judge did. Husband appealed, complaining that it was error for the judge to enter the judgment after had filed his pleading on a fault ground. The Court of Appeals disagreed, pointing out that, “[C]ourts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered,” and that the later judgment is effective on the date that it should have been entered but for the omission. Thus, husband’s pleading had no effect on the ultimate outcome.

PROVING TAX EFFECTS OF ALIMONY

September 2, 2010 § 3 Comments

Armstrong vs. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993), sets out the factors that the trial court is supposed to consider when adjudicating whether to award alimony, and if so, the form, duration and amount.

All of the Armstrong factors are important, and failure to prove even one can doom your claim. One of those factors is “The tax consequences of the spousal support order.”

There are only two ways to establish the tax consequences: (1) Have an expert testify or offer into evidence a learned treatise; or (2) Agree with opposing counsel what they are and present the agreement to the court.

It doesn’t take a legal scholar to appreciate the advantages and disadvantages of these approaches. An expert can offer clarity, but she can be asked about so many extraneous matters on cross until the court is bewildered. A learned treatise can be precise and clear, but you still need to lay a foundation for it with an expert in most cases. In either case, experts are expensive.

By contrast, it doesn’t take much to convince opposing counsel that it is to both parties’ benefit to enter into a stipulation as to the tax consequences. That way, both parties have evdence in the record for the court to consider, and if the case is appealed, the Court of Appeals is not left scratching its collective head about why there is no proof of the tax consequences.

Back when I was practicing, several of us attorneys colluded and came up with a form for a stipulation. I believe it covers every base. It was done several years ago, and may not reflect intervening changes in the tax code, but it will at least provide a template for you to adapt to the current law.

Here is the form:

TYPES OF ALIMONY

MISSISSIPPI CASE LAW	FEDERAL INCOME TAX
“Lump-Sum Alimony”	“Lump-Sum Alimony”
Represents part of the equitable distribution of the marital estate. Is a fixed sum not subject to modification. Obligation to pay continues after the death of the payee or payer.	Represents a property settlement for income tax purposes and is not taxable by the payer or taxable to the payee. Is not alimony for income tax purposes because payments would continue, by operation of law after the payee’s death.
“Periodic Alimony”	“Periodic Alimony”
Is based on the payer’s duty to support the payee in the manner to which she or he had become accustomed, is modifiable and terminates on payee’s remarriage, death, or payer’s death.	Is tax deductible by the payer and taxable to the payee; i.e., qualifies as alimony for tax purposes. The reason periodic alimony qualifies as alimony for tax purposes is because under Mississippi law there is no liability to make any payment (in cash or property) after the death of the recipient spouse.
“Rehabilitative Alimony”	“Rehabilitative Alimony”
Is for a fixed term, but is modifiable.	If the liability to make the payments stops after the death of the recipient spouse, then rehabilitative alimony would qualify as alimony for income tax purposes.

FEDERAL INCOME TAX REQUIREMENTS FOR ALIMONY:

A payment to or for a spouse under a divorce or separation instrument is alimony for federal income tax purposes if the spouses do not file a joint income tax return with each other and all of the following requirements are met:

The payment is in cash.
The instrument does not designate the payment as not alimony.
The spouses are not members of the same household at the time the payments are made. This requirement applies only if the spouses are legally separated under a decree of divorce or separate maintenance.
There is no liability to make any payment (in cash or property) after the death of the recipient spouse.
The payment is not treated as child support.

*********

The obvious advantage of the stipulation is that it establishes the fact without expense and both parties have the information in the record. Unfortunately, this is an element of alimony proof that is almost never addressed by the attorneys in a trial, and it could cost your client dearly.

TRIAL BY CHECKLIST: LUMP SUM ALIMONY

August 31, 2010 § 9 Comments

A practice tip about trial factors is here.

The factors that the trial court must consider in making an award of lump sum alimony are:

Substantial contribution to accumulation of the marital assets by quitting work or assisting in the business;
A long marriage;
Financial disparity;
Other considerations, including payor’s assets and payor’s stability or instability.

Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss. 1988). NOTE: these factors predated Armstrong (periodic alimony) by five years, and the Armstrong factors essentially overlap these. It may be preferable to cover all of the Armstrong factors coupled with a specific request for lump sum alimony as well as periodic or rehabilitative.

TRIAL BY CHECKLIST: PERIODIC AND REHABILITATIVE ALIMONY

August 27, 2010 § 19 Comments

A practice tip about trial factors is here.

Armstrong vs. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993), sets out the factors that the trial court must consider and address in making a determination about whether to award periodic and/or rehabilitative alimony. They are:

The income and expenses of the parties.
The health and earning capacities of the parties.
The needs of each party.
The obligations and assets of each party.
The length of the marriage.
The presence or absence of minor children in the home, which may require that one or both parties either pay, or personally provide, child care.
The age of the parties.
The standard of living of the parties, both during the marriage and at the time of the support determination.
The tax consequences of the spousal support order.
Fault or misconduct.
Wasteful dissipation of assets by either party.
Any other factor deemed by the Court to be “just and equitable” in connection with the setting of spousal support.

Before the court can reach the issue of alimony, the court must first adjudicate equitable distribution and determine whether any need for alimony can be alleviated by a greater share of equitable distribution. This means that the factors for equitable distribution (Ferguson factors) must be presented in alimony cases. If, after equitable distribution, the court finds that the needs of both parties are met and there is no disparity, the court does not consider alimony.

Professor Deborah Bell in her MISSISSIPPI FAMILY LAW treatise and her annual seminars has done some important research into how length of marriage and relative income affect awards of periodic, rehabilitative and lump-sum alimony. You should become very familiar with her work if you are going to take on an alimony case.

Caveat: This is an area of the law in flux, and the cases are significantly fact-driven. You should do some research for authority supporting your position pro or con before going to trial. There is plenty of case law on both sides of the issue.

” ‘TIL DEATH DO US PART” — OR MAYBE NOT

August 24, 2010 § Leave a comment

Charles Allen and Janet Allen were divorced in 2002, but they continued a relationship and even resumed wearing their wedding rings. They opened a joint checking account and made plans to move in together. They spent every weekend together, and Charles even had a private line installed in Janet’s residence so that they could talk with one another whenever they wished. Janet said “It was like we were never divorced.” Eventually, they saw where the relationship was headed and decided to set aside the divorce so they could get back together.

On May 17, 2006, they filed a joint petition in the Chancery Court of Pearl River County to revoke the divorce as provided in § 93-5-31, MCA. So far, so good. Only problem is that Charles died June 16, 2006, before the court could hear any testimony on the petition.

The specific code section invoked by the joint petition reads as follows:

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 as it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.

The Chancellor quashed the petition nearly a year later on condition that he would allow Janet to file a timely request for reconsideration if she could show sufficient facts of reconciliation.

Janet did file for reconsideration, and the Chancellor found after hearing that she had presented proof sufficient to satisfy the criteria for revocation of the divorce. He entered a judgment revoking the divorce, and the Administrator of Charles’s estate appealed.

In Carlisle v. Allen, 2009 WL 1758864 (Miss.Ct.App. June 23, 2009), a case of first impression, the Court of Appeals reversed, holding that, although Janet had produced sufficient evidence to support a finding of reconciliation, the trial court has no authority to reinstate the marriage because of Charles’s death. The court reasoned that since death of a party to a divorce ends the status of marriage and would even have the effect of nullifying a divorce action, the purpose of the statute, which the court found was “to reunite two formerly married persons as a married couple,” would be thwarted because there “is no status of marriage upon which to operate.”

Janet filed a petition for certiorari, which was granted.

On cert, the Supreme Court reversed the Court of Appeals and reinstated the Chancellor’s decision. In Carlisle, Adm’r of the Estate of Allen v. Allen, No. 2007-CT-02047-SCT, the court held that Janet had met all of the criteria of the statute, had presented satisfactory evidence in support of it, and that it was not error for the Chancellor to grant the revocation in such a situation, regardless of Charles’s intervening death. The opinion pointed out that there is nothing in the statute that required both parties to be alive when the revocation is ordered, and that it was error for the Court of Appeals to analogize the action to a divorce action, where the applicable law is not necessarily the same.

There are some procedural disagreements between the majority and the dissenters that hinge on the timeliness of the motion to reconsider and the trial court’s jurisdiction as a result. That is an issue for another post.

As a practical matter, this case is mostly of academic interest since petitions for revocation are pretty rare. I only presented two in 33 years of practice and have had none come before me on the bench. Interestingly, I did have a case where my client died before the divorce judgment could be signed by the Chancellor, but after the Chancellor had rendered his opinion from the bench. In that case, White v. Smith, 645 So,2d 875 (Miss. 1994), the Supreme Court upheld Chancellor Shannon Clark’s entry of a Judgment of Divorce nunc pro tunc after the death.

This Allen case raises what I consider to be a couple of valid questions: Why do we need this statute? Would we not be better off if it were repealed?

The first question is based on the simple fact that the parties are free to remarry at any time with little bureaucracy, which is in my opinion the preferable manner to effect their reunion. Why would they prefer to hire an attorney, draft pleadings, set a court date, appear and testify, and await the judge’s ruling? I am speculating here, but I believe it is reasonable to assume that this statute is an adjunct to the Chancellor’s power to forbid the remarriage of the parties due to adultery (still in the code at § 93-5-25, MCA), and perhaps this statute was a way for parties to get around that injunction. In any event, I am not aware of any case in my career in practice or on the bench where a Chancellor has entered such an injunction, and certainly not in the 21st century. What other reason is there for this law to continue in effect?

My second question stems from the fact that since this statute was enacted, the landmark Ferguson case and its offspring have taken root in our jurisprudence, giving rise to many questions about the accumulation of marital assets between the time that the divorce judgment is entered and the date it is revoked. Consider, for example, that the husband got title to the former marital residence in the divorce and has made all mortgage payments in the interim. Is the residence restored to its status as marital property (notwithstanding title)? And what are the parties’ respective equitable interests in it? Remarriage would set a clear demarcation as opposed to revocation, which raises more questions than it answers.

Something to think about.

TEN TIPS FOR MORE EFFECTIVE RULE 8.05 FINANCIAL STATEMENTS

August 16, 2010 § 16 Comments

If your case involves economic issues or property division, Rule 8.05 of the Uniform Chancery Court Rules requires that you provide a financial statement complying with the form published in the rules.

An effective financial statement can make or break your case. It is the template for your client’s testimony, and a poorly-prepared statement will make your client cannon fodder for cross examination, while a well-prepared one will inoculate him or her from serious damage. Most importantly, the financial statement is what the judge will spend the most time mulling over when fashioning an opinion. The more effective your statement, the better off your case will be.

Here are ten ways you can make your Rule 8.05 statements more effective:

Never present a financial statement that you have not gone over in detail with your client. As part of your trial preparation, question the client’s figures, test his or her mastery of the information on it. If your experience tells you that a figure is unreasonably high or low, question it and make the client defend it. If the client can not defend the number, suggest that the client reconsider it. And while you’re at it, make sure that your client knows what he or she included in every category. Are there duplications? For instance, if your client charges clothing for the children on her MasterCard, did she duplicate the amount paid on the card in the line for clothing? Don’t just take your client’s figures at face value; inquire about them. I once asked a woman on the witness stand how she came up with $480 a month for entertainment, and she explained that was the amount she had spent the month before for flowers for her aunt’s funeral, and that her sisters were going to reimburse her. When I asked what she usually spent on entertainment, she said $50. In one fell swoop, I lopped $430 a month off of her expenses, diminishing her alimony claim against my client. Her attorney had simply taken her word for the $480 expenditure without questioning behind it.
Always have the statement typed so that it clearly presents your client’s position. A handwritten statement with scratched-out figures and marks, notations and arithmetic that doesn’t add up will just add confusion and make the judge’s job disagreeably more difficult. Take the time to type the figures in their proper places and make sure they add up properly. Remember the old adage: “The easier you make the judge’s job, the more likely it is you will prevail.” Okay, that’s probably not really an old adage, but it should be.
Make sure the tax returns are attached. Copies of the preceding year’s state and federal income tax returns “in full form as filed” are required. This means that all schedules and w-2’s must be attached. If a document was sent with the original return to the IRS, a copy of it must be included.
Have an adequate number of copies. “When offered in a trial or a conference, the party offering the disclosure statement shall provide a copy of the disclosure statement to the Court, the witness and opposing counsel.” This means that, in addition to the original in evidence, you should have three additional copies, plus one for yourself. It does your client absolutely no good for the court not to have a copy to look at while your client is being examined about it. It would even be a good idea to provide an extra copy for the judge to mark up with his or her own notes during testimony.
Include a complete employment history. Some lawyers have deleted this from the form in their computers, for some reason, but it is specifically required in the rule: “A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of the divorce, whichever is applicable.” This information is vitally important in connection with property division, alimony, child support and even child custody, and yet it is often omitted by lawyers.
Be sure to explain any discrepancies. If your client has a perfectly logical explanation why the cell phone bill is $375 a month, be sure to cover it. If expenses exceed income, how is the client managing to pay the difference? If your client’s year-to-date income includes a one-time bonus that will never be repeated, notate that and have your client testify about it; if you don’t explain it, you can expect that the judge will include the bonus in your client’s income.
Use an up-to-date statement. A financial statement prepared six months ago in discovery and not updated since is simply not a statement of “actual income and expenses and assets and liabilities,” as required in the rule. It defeats the purpose of the rule for a witness to spend a couple of hours explaining how the statement should be updated when that should have been done in trial preparation. If you come to court without an updated statement, the court may continue your trial to require you to prepare one.
Have your client sign and date the statement. The Court of Appeals has been critical of unsigned financial statements.
Make sure the entries really are what they say. A voluntary 401(k) contribution is not “mandatory retirement,” and should not be listed on that line. Nor is a private health insurance premium “mandatory insurance.” The term “mandatory” as used on the form refers to items required by law, such as PERS retirement.
Remember that a month has more than four weeks. A month is 52 weeks divided by 12, or 4.3. A client who says “I get paid $400 every Friday, so I make $1,600 a month” is wrong; the correct amount would be $1,720.

TRIAL BY CHECKLIST: EQUITABLE DISTRIBUTION

August 5, 2010 § 23 Comments

A practice tip about trial factors is here.

The decision in Ferguson vs. Ferguson, 639 So.2d 921, 928-9 (Miss. 1994), sets out the factors that the trial court must address in making a determination of equitable distribution. Those factors are:

Substantial contribution to the accumulation of the property, based on direct or indirect economic contribution to the acquisition of the property, contribution to the stability and harmony of the marital and family relationships as measured by the quality, quantity of time spent on family duties and the duration of the marriage, and contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
The market value and the emotional value of the assets subject to distribution.
The value of assets not ordinarily, absent equitable factors to the contrary, subject to distribution, such as property brought to the marriage by the parties, and property acquired by inheritance or inter vivos gift by or to an individual spouse.
Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution.
The extent to which property division may, with equity to both parties, be utilized to eliminate periodic alimony and other potential sources of future friction between the parties.
The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity.
Any other factor that in equity should be considered.

Some principles of equitable distribution to bear in mind:

Equitable distribution applies to marital assets, which are assets acquired through the work efforts of one or both parties during the marriage. Included in the definition of marital assets is added value, as where an asset was the pre-marriage property of one party, but its value was increased during the marriage by contribution. An example is a 401(k) plan with a value of $10,000 at the time of the marriage that increases through contributions during the marriage to $100,000. The increased value attributed to contributions is a marital asset.
Equitable distribution does not mean equal distribution. The division must be equitable, considering all of the Ferguson factors. Each asset need not be divided; the overall division must be fair.
Equitable division of the marital estate involves four steps: (1) The trial court classifies each asset as marital or non-marital; (2) The court determines the value of each asset based on the proof, which may require appraisals; (3) The marital assets are divided equitably based on the Ferguson factors; and (4) move on to the Armstrong factors to determine whether, after equitable distribution, alimony is appropriate.
The parties’ separate, or non-marital, assets are not subject to equitable division, although they are to be taken into consideration in the distribution as well as in ajudicating the need for alimony. The values of non-marital assets must be in the record as well as that of the marital assets.
Equitable distribution may be used to eliminate the need for an alimony award. As the court stated in Ferguson at 639 So.2d 921, 929 (Miss. 1994), “Alimony and equitable distribution are distinct concepts, but together they command the entire filed of financial settlement of divorce. Therefore, where one expands, the other must recede.”
The contribution of a homemaker to the marital estate is presumed equal to that of a wage-earner, but the presumption can be overcome with proof that the homemaker’s contribution was actually minimal.
A spouse may be granted a greater share based on greater need.
In making its allocation of assets, the court considers the asset value net of debt, and may also factor in the amount of debt assigned to a party in determining how to award assets.
The valuation date is in the judge’s discretion, but the judge can be influenced by your proof and argument. Give careful consideration to the date you wish for the assets to be valued. For example, due to fluctuations in the stock market, it may be in your client’s interest for the valuation date to be closer to the date of the divorce than to the date of separation. Make your position and its rationale clear to the court. Caveat: The appellate courts have made it clear that entry of a temporary judgment stops accumulation of marital assets, so that any increased value or newly acquired assets after the temporary are the separate property of the party to whom they are attributable.

Equitable distribution is a complex subject with many nuances that are far beyond the scope of this post. I recommend that you obtain a copy of Professor Deborah Bell’s Family Law in Mississippi, which includes an exhaustive analysis of the subject at Chapter VI.

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