Dispatches from the Farthest Outposts of Civilization

July 19, 2019 § Leave a comment

July 8, 2019 § Leave a comment

State Bar Annual Meeting and Summer School

Next post July 15, 2019

July 4, 2019 § Leave a comment

State Holiday

Court House closed

Reprise: Some Suggested PSA Provisions

June 28, 2019 § Leave a comment

Reprise replays posts from the past that you may find useful today.

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.

_______________

* “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.

Reminder About the Chancery Judges’ Benchbook

June 26, 2019 § 1 Comment

Last month I posted that the Mississippi Judicial College is unlocking the Benchbook for Mississippi Chancery Judges so that it will be accessible to all.

So I am reminding you that you will be able to access this great resource beginning July 1 at this link.

June 12, 2019 § Leave a comment

Globetrotting for the next little while.

Next post June 24, 2019.

May 27, 2019 § Leave a comment

State Holiday

Courthouse closed

Bell Seminars

May 24, 2019 § 1 Comment

As I have often said here, one of the best ways to stay current in family law is to attend Professor Debbie Bell’s seminars.

The schedule this year is

  • Jackson. Friday, July 12, 2019. Jackson Marriott.
  • Oxford. Friday, July 19, 2019. Oxford Conference Center.
  • Gulf Coast. Friday, July 26, 2019. Imperial Palace Biloxi.

Registration is $235 in advance, $260 at the door on a space-available basis.

You can register online at msfamilylaw.com.

Prerequisites to Grandparent Visitation

May 20, 2019 § Leave a comment

After the chancellor dismissed her petition for grandparent visitation, Angela Vermillion appealed, arguing that the chancellor had applied a wrong legal standard. In Vermillion v. Vermillion, handed down March 19, 2019, the COA affirmed. Judge Carlton’s opinion is informative on the question of what a grandparent must prove in order to be entitled to visitation:

¶20. Angela next argues that the chancellor applied the wrong legal standard with respect to grandparent visitation; specifically, by refusing to consider section 93-16-5, which addresses the best interest of the child. Angela asserts that she began her relationship and bonding with her grandchild before Chella Rose’s birth and that the chancellor erred by failing to consider “Angela’s effort prior to the live birth.” Angela maintains that “[t]he proof has shown that through the second and third trimester of pregnancy, everyone was happy.” Angela asserts that the chancellor is required to consider section 93-16-5 prior to sustaining a motion for a directed verdict and dismissing Angela’s claim with prejudice.

¶21. Our careful review of relevant precedent shows that grandparents seeking visitation rights must first satisfy the requirements of section 93-16-3 before the chancellor is required to address the best interests of the child. In Aydelott [v. Quartaro], 124 So. 3d [97] at 100 (¶10) [(Miss. Ct. App. 2013)] (internal quotation marks omitted), this Court outlined the factors that the grandparents in that case had to prove in order “to have the statutory right to petition for visitation . . . .” This Court explained that the grandparents “first had to show they had established a viable relationship with each granddaughter.” Id. The grandparents “next had to show that ‘the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child.’” Id. at 101 (¶10) (quoting Miss. Code Ann. § 93-16-3(2)(a)). This Court then expressed that “[o]nly by the [grandparents’] establishment of a viable relationship and unreasonable denial of visitation could [they] reach the polestar consideration for statutory grandparent visitation—whether visitation rights of the grandparent with the child would be in the best interests of the child.” Id. at (¶11) (internal quotation marks omitted) (citing Miss. Code Ann. § 93-16-3(2)(b)). This Court explained that “[g]randparent visitation is different than child custody, as there are other evidentiary considerations besides the child’s best interest that must be considered—namely, whether the grandparent has produced sufficient evidence to show he or she is authorized under the statute to be awarded visitation.” Id. at 103 (¶19).

¶22. Similarly, in Hillman v. Vance, 910 So. 2d 43, 47 (¶11) (Miss. Ct. App. 2005), this Court held that because the chancellor found that the grandparent seeking visitation failed to meet one of the requirements of section 93-16-3(2), the chancellor could have disposed of the visitation request without conducting a best-interest analysis under Martin [v. Coop, 693 So.2d 912 (Miss. 1997)]. See also Smith [v. Martin], 222 So. 3d [255] at 258 (¶2) [(Miss.2017)] (affirming the chancellor’s judgment granting visitation rights to the grandparents when the chancellor considered the Martin factors only “[a]fter determining that the [grandparents] were entitled to visitation under both section 93-16-3(1) and section 93-16-3(2) . . .”).

¶23. Since the record reflects that Angela failed to meet her burden of proving that she had established a viable relationship with Chella Rose, we find that the chancellor was not required to consider section 93-16-5 before granting the motion for directed verdict. This issue lacks merit.

There are, as we know, two types of grandparent visitation. The first, which Professor Bell refers to as “Type 1” is available to grandparents whose child has lost visitation rights and the court finds that visitation is in the child’s best interest.

The court was dealing here with what Bell calls “Type 2” grandparent visitation, which applies to all grandparents who can establish (1) that they have enjoyed a viable relationship with the child(ren) and (2) that the parents are unreasonably denying visitation. Only after those prerequisites are established does the court then analyze the child’s best interest.

Best interest and whether visitation is in the child’s best interest are, under either type visitation, analyzed via the Martin v. Coop factors.

Reprise: Child Support that Isn’t

May 17, 2019 § Leave a comment

Reprise replays posts from the past that you may find useful today.

CHILD SUPPORT AS A MIRAGE

August 21, 2012 § Leave a comment

Any agreement that provides for child support must be found by the judge to be adequate and sufficient, and it must be definite and specific enough to be enforceable.

Most agreements meet those requirements. You won’t go far astray if the child support is within the statutory guidelines and the language awarding it is clear and unambiguous as to how it was calculated, the exact amount to be paid, the due dates, and its duration (e.g., “until further order of a court of competent jurisdiction,” or “until the minor child is emancipated by operation of law or order of this court,” etc.).

These requirements don’t stop lawyers from presenting some pretty fanciful child support arrangements that sometimes make chancellors scratch their heads. Here are some that have been proven not to be allowable under Mississippi law, that you should avoid:

  • An unspecified amount. In Lowrey v. Lowrey, 919 So.2d 1111, 1112 (Miss.App. 2005), the court rejected a provision that the mother would pay child support in the form of buying clothes for her children “in an amount that she can afford.” The provision is so indefinite as to be unenforceable. It also violates the fundamental principle that a person can not be held in contempt for failure to comply with a court order that is too vague or ambiguous to be understood. The court in Lowrey said at ¶33, “As it stands, a finding of adequacy and sufficiency depends upon enforceability of the child support provisions contained in a property settlement agreement.”
  • Percentage child support. A provision that “husband shall pay 14% of his adjusted gross income as child support” is unacceptable. In Hunt v. Asanov, 975 So.2d 899, 902 (Miss.App. 2008), the court stated, “Before a party may be held in contempt for failure to comply with a judgment, ‘the judgment must be complete within itself … leaving open no matter or description or designation out of which contention may arise as to meaning’”  [Citations omitted]. In order to determine what the father’s obligation might be or might have been, the court must look beyond the four corners of the judgment to extraneous earnings data and other information that in all likelhood is in controversy. The argument may be made that the case of Rogers v. Rogers, 919 So.2d 184, 188-89 (Miss.App. 2005) is contra. In that case, the COA held as unambiguous a provision that the husband would pay “14% of his adjusted gross income or $600 a month.” The argument raised by appellant there was that the apparent dichotomy betweeen 14% and $600 created an unresolvable ambiguity. The court rejected that argument and found the language clear, as did the chancellor. Rogers, however, did not directly address the problem of enforceability created by the need of the trial court to consider extraneous evidence to make a complete judgment, and the court pointed out that the $600 amount specified was clear enough to give the appellant an idea of his obligation. I do not see Rogers as an endorsement of percentage child support.
  • Amount tied to unspecified return. In Rudder v. Rudder, 675, 678 (Miss. 1985), the court found a provision that the husband would pay any income or divident received from “any investments in the name of the child” was too “indefinite in amount, type, whereabouts, and the name of the holder.” The court held that the award was worthless, as a practical matter, to the custodial parent for enforcement. This type of support order is a subspecie of percentage child support. It requires the court to look to material extraneous from the four corners of the judgment in order to enforce it.
  • Lump sum. In Pittman v. Pittman, 909 So.2d 148, 153 (Miss.App. 2005), the court reversed a chancellor’s award of $26,000 in residential equity as additional child support that he said was more ” … in the nature of child support than accumulated assets.” The COA held that the chancellor has no authority to make an award of lump sum child support. If the chancellor lacks such authority, then I am certain that a chancellor lacks authority to approve such an agreement between the parties. Note: Professor Bell says that the statute authorizing guardians to settle claims on behalf of wards has been held to allow lump sum settlements in paternity actions. Bell on Mississippi Family Law, 2d Ed., §11.06[2][b], p. 321.

The kinds of alternative child support provisions that lawyers come up with is only limited by the imagination. It is the court’s duty, however, to make sure that the provisions are adequate and sufficient for the support and maintenance of the child. The further you stray from statutory guideline child support the more likely it is that you will be sent back to the drawing board.

When you draft an agreement you want it to produce tangible benefits for your client. The last thing you should want is for a court to find that language you threw together heedlessly is no more than an illusory mirage or an insubstantial chimera.

Where Am I?

You are currently browsing the Uncategorized category at The Better Chancery Practice Blog.