SHOULD WE RETHINK ALIENATION OF AFFECTION?

July 29, 2010 § 3 Comments

Philip Thomas, the Jackson lawyer who blogs at MS Litigation Review & Commentary has posted some trenchant thoughts about the cause of action for alienation of affection in Circuit Court that is sometimes used either for vengeance or to coerce a settlement in Chancery. 

I found his comments so thought-provoking for family law practitioners that I have copied and pasted it below rather than simply providing a link. 

I recommend Mr. Thomas’s blog to you as a regular read.  

Sick of Alienation of Affection Lawsuits?

Posted on July 27, 2010 by Philip Thomas

I’m sick of alienation of affection lawsuits. Who’s with me?

I’m sick of this one, which ironically was filed by a former Miss. Supreme Court Justice (McRae) who advocated abolishing the cause of action while he was on the Court. I’m sick of this one, which is just getting started. I’m sick of the one involving my old law firm that recently was the subject of a Supreme Court decision. I’m sick of the entire cause of action.

Here are just a few of the problems that I have with the cause of action:

  • fault—in an alienation of affections lawsuit, fault is placed on the third-person involved in the affair instead of the cheating spouse. But it was the cheating spouse who broke a vow.
  • causation—who can really say that the “alienation of affection” is what caused the marriage’s demise? Anyone who has ever been married knows that marriages are extremely complicated.
  • damages—as pointed out by Justice Dickinson in a concurring opinion in Fitch v. Valentine, there are no standards for compensating the plaintiff.
  • quasi-extortion—there is a quasi-extortion element to the cause of action. I’ve heard that many alienation of affection claims settle before suit is filed in order to keep the allegations out of the public record. Once suit is actually filed, the case is likely to go to trial because the plaintiff has shot his/ her biggest bullet. Compare that to the rest of the civil justice system where cases are rarely settled before suit is filed, but most do settle after suit is filed.
  • resolution—I do not believe that an alienation of affection case promotes the orderly resolution of the acrimony between the individuals involved. In fact, I think that it does the opposite.
  • 42 states do not recognize the cause of action. That fact standing alone does not make the action bad, but it does suggest problems.
  • the danger of entrapment—an enterprising couple who are grifters could set up an alienation of affection lawsuit and then share in the proceeds. A new couple moves to town. The wife is seen around town flirting with doctors and other wealthy men. This leads to a notorious affair followed by an alienation of affection lawsuit by the woman’s husband. In the lawsuit, the woman testifies that the affair did alienate her affection from her husband and destroyed their marriage. After a big settlement the couple then moves to North Carolina or another state that recognizes the action and starts the whole scam over. This is not that far-fetched to me. In fact, I would be surprised if there has never been collusion in an alienation of affection lawsuit.

In summary, it’s a bad cause of action that should be abolished

TRIAL BY CHECKLIST: ATTORNEY’S FEES

July 9, 2010 § 20 Comments

A practice tip about trial factors is here.

If you are expecting an award of attorney’s fees in your case, you must put on proof of the quantity of work that was done to earn the fees, as well as the amount of the fees.  In the case of McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982), the Mississippi Supreme Court set out the following factors that must be considered by the court in determining the proper amount of attorney’s fees to be awarded:

  1. The parties’ relative financial ability;
  2. The skill and standing of the attorney;
  3. The novelty and difficulty of the issues;
  4. The degree of responsibility involved in management of the case;
  5. Time and labor;
  6. The usual and customary charge in the community;
  7. Preclusion of other employment as a result of accepting the case.

If McKee factor evidence is not submitted, the court may deny your prayer for attorney’s fee, and if the trial court does award it, it may be thrown out on appeal. 

In a divorce case, an award of an attorney’s fee is properly made only to a party who proves inability to pay and there is proof of the McKee factors.  In Turner v. Turner, 744 So.2d 332, 338 (Miss. App. 1999), the trial court’s award of attorney’s fees was reversed where no itemized account was introduced into evidence, and the only testimony of fees was that the fee charged was $1,500 and that the party seeking the award was unable to pay it.

In other cases, an award of attorney’s fees may be made regardless of ability to pay where the party is found in contempt, or is found guilty of dilatory behavior or behavior that causes the other party undue expense, or for frivolous litigation, or for unfounded allegations of domestic abuse.  In such cases, the proof of attorney’s fees should be supported by proof of the McKee factors.

ESSENTIAL INGREDIENTS FOR CHILD SUPPORT AND 8.06 PROVISIONS IN ID DIVORCES

June 15, 2010 § 2 Comments

The chancery judge in an irreconcilable differences (ID) divorce is required by law to make a determination about the sufficiency of the provision for support of the minor children.  Different chancellors approach the task in different ways.  Some judges require a complete Rule 8.05 financial statement from each party.  Some judges take the word of the attorney or litigants.

In District 12, you are required to include some specific information about income of the paying parent.  The property settlement agreement must include information showing gross income and deductions for taxes, Medicare and social security for year to date for the paying party, in the form of a pay stub attached to the agreement or a recitation of the actual figures, including monthly and year-to-date figures, in the body of the agreement; in the alternative, a statement satisfactory to the court as to why such information is not available. If the pay stub is attached, the agreement itself must include a provision that both parties have seen and are satisfied with the accuracy of the document.  If the required information is not included, the agreement will not be approved. 

As for Rule 8.06 disclosures, all current required information for both parties must be set out in the body of the agreement or in any attached visitation schedule.  So the property settlement agreement must include the current names, addresses and telephone numbers of both parents and include the standard language informing the parties of their continuing duty of disclosure.

Practice Tip:  Change your property settlement agreement forms to include the required language.   

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