Reprise: Some PSA Provisions You Might Find Helpful
November 21, 2013 § 1 Comment
Reprise replays posts from the past that you might find useful today.
SOME SUGGESTED PROVISIONS FOR PSA’S
January 18, 2012 § Leave a Comment
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.
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* “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.
When Joint Custody is the Gateway to Sole Custody
November 20, 2013 § 3 Comments
Brittany and Douglas Clark consented to an irreconcilable differences divorce, agreeing to allow the chancellor to adjudicate “the primary physical custody” of their son, Brayden, and several other support and visitation issues.
At trial, the chancellor heard testimony from both sides, and announced that if he were to award custody of the child to either parent, “[he] would be taken care of. [He] would be loved. [He] would be supported. [He] would be nurtured. [He] would be raised properly.” The judge added:
The [Mississippi Supreme Court] has decided [this court] must follow and do what is in the best interest of the child after [it has] gone through all the Albright factors, and . . . these are the kinds of cases that . . . it’s hard . . . to give the child to one or the other because everything here would support that. . . . [H]ow can you choose one over the other, but [this court] has to.
The chancellor awarded custody of Brayden to Brittany, concluding that it would be in the child’s best interest to do so. Douglas appealed, one assignment of error being that the chancellor had failed to award joint physical custody, per Easley v. Easley, 91 So.3d 639 (Miss. App. 2012). [Note: A previous post on the Easley case is at this link].
In the case of Clark v. Clark, decided November 12, 2013, the COA reversed and remanded. Judge Roberts’ opinion, for the court, explained:
¶10. Douglas argues that the chancery court erred when it determined that it could not award joint physical custody. As was quoted above, the chancery court made the following statement before awarding full physical custody to Brittany: “[In these] kinds of cases . . . it’s hard . . . to give the child to one or the other because everything here would support that. . . . [H]ow can you choose one over the other, but [this court] has to.” (Emphasis added). The trial was held and the oral decision of the chancery court was made on June 12, 2012. However, just a few days earlier, this Court handed down the case of Easley v. Easley, 91 So. 3d 639 (Miss. Ct. App. 2012), which is directly on point for this particular issue.
¶11. In Easley, the chancery court stated that joint physical custody was in the best interest of the child, but the court was not permitted by law to grant joint physical custody when it was not requested by both parties in an irreconcilable-differences divorce. Id. at 640 (¶1). Therefore, the court awarded full physical custody of the minor son to the father. Id. Reversing and remanding the chancery court’s decision, this Court found that “[t]he [chancery court] erroneously concluded that joint custody could not be awarded” under Mississippi Code Annotated section 93-5-24(2) (Rev. 2004), and it was error to deviate from the child’s best interest by awarding sole custody to the father.Easley, 91 So. 3d at 641 (¶10). Additionally, in Crider v. Crider, 904 So. 2d 142, 148 (¶15) (Miss. 2005), the Mississippi Supreme Court held:
[W]hen parties consent in writing to the [chancery] court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of “joint application” in [section] 93-5-24(2). This is the only interpretation that conforms to the primary directive of [Mississippi Code Annotated section] 93-5-24(1) [(Rev. 2004)] that “custody shall be awarded as follows according to the best interests of the child.”
Importantly, before awarding joint custody, a chancery court must determine whether the parents are “capable of sharing joint custody cooperatively[.]” Crider, 904 So. 2d at 147 (¶13).
¶12. We are presented with a similar set of facts. Like in Easley and Crider, the divorce was granted on the ground of irreconcilable differences. Based on our reading of the transcript, it appears that the chancery court may have concluded, like the chancery court in Easley, that it was required to order custody to one parent regardless of whether joint physical custody was in the best interest of Brayden. The chancery court made no finding that Brittany and Douglas could not cooperate if joint custody was awarded. See Crider, 904 So. 2d at 148 (¶15) (“It is the chancellor who must determine what is in the best interest of the child, and it is the chancellor who determines the level of commitment parents have to sharing joint custody.”). We are concerned that the chancery court may have concluded that it was not authorized to consider joint physical custody; therefore, we reverse the chancery court’s judgment and remand this case to the chancery court for it to reconsider its award of custody, including the propriety of awarding joint physical custody.
As I’ve said here before, when you consent for the judge to adjudicate custody, you are opening the door to joint custody.
But does this mean that in all cases the judge is required first to consider whether joint custody should be awarded, and, only after finding that it is not in the child’s best interest, then move on to the issue of sole custody? I think it does. I don’t see any other way to read this line of cases.
If my interpretation is correct, it means that joint custody is the default setting for custody in this type case, if the issue is left to the court to decide, and the court must find a basis under case law or in the statute to deny joint custody before moving on to considering an award of sole custody.
At the very least, these are matters you should discuss in detail with your client before drafting that consent.
Can you limit the court’s scope of award via draftsmanship? I question whether you can, based on this language from Crider: “It is the chancellor who must determine what is in the best interest of the child, and it is the chancellor who determines the level of commitment parents have to sharing joint custody.”
No Place Like Home
November 19, 2013 § Leave a comment
UCCJEA jurisdiction begins with a determination of the home state of the child. MCA 93-27-102(g) says:
“Home state” means the state in which a child lived with a parent or person acting as a parent for at least six (6) consecutive months before commencement of a child custody proceeding … A period of temporary absence of any of the aforementioned oersons is part of the period.
And most folks stop right there. If the child has been here six months, Mississippi must have jurisdiction. Most cases, however, are not so clear-cut. What about the familiar scenario where the child is taken from Mississippi to another state? How does that affect home state status?
Consider this language from MCA 93-27-201(1)(a):
[A] court of this state has jurisdiction to make an initial child custody determination only if:
This state is the home state of the child on the date of commencement of the proceeding, or was the home state of the child within six (6) months before commencement of the proceeding and the child is absent from the state but a parent or person acting as a parent continues to live in this state …
So, if …
- It’s an original custody proceeding, and
- Mississippi is the child’s home state on the day the action is filed, or
- Mississippi was the home state of the child within six minths before the action is filed, and the child is absent from Mississippi, but a parent or person acting as a parent continues to live in Mississippi, then …
Mississippi does have jurisdiction. And, remember that UCCJEA jurisdiction is subject matter jurisdiction.
In the COA case of Jones v. McQueen, handed down November 12, 2013, the court affirmed the chancellor’s finding that Mississippi, not Alabama, had UCCJEA jurisdiction because Mississippi was where the mother and father had lived together with the child, and had been the home state of the child within six months before the action is filed. Although the child had been removed from Mississippi to Alabama by the mother, the father of the child continued to reside in this state. The facts of the case also established that the mother had periods of absence in Alabama during the six months, but that they were temporary absences, and she actually moved her personal effects out of the father’s Mississippi home when the parties finally separated.
The UCCJEA has many complexities. If you are not thorough in studying the code sections that apply, you might find yourself on the short end of the jurisdictional stick — which is a bad place to be.
Averaging Valuations
November 18, 2013 § 1 Comment
I’ve whined here before about inadequate proof of values in equitable didtsribution cases and the burden it places on the trial judge. I won’t repeat my plaints here.
The latest case where a chancellor had to make a decision with far-less-than-precise proof of values is Williams v. Williams, decided by the COA on October 5, 2013.
Phillip and Gail Williams were before the court in a divorce where the main matter in dispute was equitable distribution. Neither party produced an appraisal of a residence and real property in Alabama. Instead …
- Phillip introduced a document styled “An Acknowledgment of Lease Purchase Agreement” by which Phillip purported to sell the property to a purchaser for installment payments of $325 a month until he could “obtain a loan to pay off the balance of $40,000 … less the $325 a month without interest …” The document was filed among the land records in Alabama. In his testimony, Phillip stated that the purchaser would, indeed, be paying more than $50,000 for the property.
- Gail introduced a tax receipt showing that the property was valued for tax purposes at $61,100, with $43,900 attributed to the house, and the remainder to the underlying property.
Also included in the adjudication were the parties’ householdd goods, yard equipment, and tools, the values of which were in dispute between the parties, and for which there was no appraisal. Each party accused the other of undervaluing the items that he or she would keep, while overvaluing the items that the other would receive.
The chancellor averaged Phillip’s claimed $40,000 value with Gail’s tax receipt value of $61,110, and adjudged the value of the Alabama property at $50,550. She also averaged the parties’ valuations of the personalty.
Phillip appealed, complaining that the chancellor was in error in averaging the values.
Judge Fair, for the COA, addressed the issue this way:
¶31. In McKnight v. McKnight, 951 So. 2d 594 (Miss. App. Ct. 2007), we held that the averaging of proposed appraisals was allowed in valuation of marital realty. Even more recently we held chancellors are required only to do the best they can with what is introduced into evidence before them:
[T]he chancellor cannot be blamed for the failure of the parties to present evidence of valuation. Faced with similar circumstances, this Court held as follows in Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999):
[T]he chancellor, faced with proof from both parties that was something less than ideal, made valuation judgments that find some evidentiary support in the record. To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor. The chancellor appears to have fully explored the available proof and arrived at the best conclusions that he could, and we can discover no abuse of discretion in those efforts that would require us to reverse his valuation determinations.
It was not the chancellor’s duty to obtain appraisals of the marital property. Willie cannot now complain that the chancellor’s valuations are unfair when no reliable evidence of the value of the property was presented at trial. This issue is without merit. Common v. Common, 42 So. 3d 59, 63 (¶¶12-13) (Miss. Ct. App. 2010).
¶32. We find the chancellor’s averaging of valuations provided on Rule 8.05 forms submitted in the record and discussed on the record an acceptable course of action and within her discretion.
¶33. Overall, we find Phillip’s objections to the characterization, valuation, and division of marital property to be based on the evidence and within her discretion under Hemsley, Ferguson, and their progeny.
I get it that in some cases the cost of obtaining appraisals can seem disproportionate to the advantage to be gained. And there are some cases where one side, if not both, would prefer for the proof to be fuzzy in hopes that the chancellor will fall their particular way.
When you leave it up to the trial judge to resolve inconclusive or incomplete evidence, you get what you get. As long as the chancellor “explored the available proof and arrived at the best conclusions that he could,” and did not otherwise abused discretion, you will be stuck with the results.
Scopes Trial
November 15, 2013 § 7 Comments
The husband of a nurse with whom my wife works experienced some symptoms, so he visited with a physician not long ago. He learned that he had advanced colon cancer, and the doctor estimated that he had six months to live. He died last week, only a month after the diagnosis.
That may be an extreme case, but it highlights something of which we all need to be aware — that undetected cancers can, and will, kill you, most likely at a point in your life when you feel that you should still have some more living to do.
You can chalk up this unfortunate experience to stubborness on the man’s part, if you like. I prefer to think he was dissuaded from having a colonoscopy by all the lurid tales that folks swap around the office and the courthouse about the procedure and its unpleasantness. In my own experience, the urban legends I heard had a dissuasive effect on me. When I finally did undergo it, however, I found how wildly exagerrated and inaccurate those reports really were.
So as a public service, I am going to tell you in some detail my experience with it, stripped of the drama (there wasn’t any), and in hopes that you will be reassured that this is something you can and should do. Fair warning: bodily functions will be mentioned here, but I will try to be matter-of-fact.
When you schedule your colonoscopy, the doctor will give you a detailed instruction sheet. The instructions are straightforward and easy to follow. Here is what happens, step by step:
- Before you can undergo a colonoscopy, your bowel will need to be empty and cleansed. You will get a prescription for a mixture that you will drink the day before the procedure that will do that function. Fill the prescription and pick up any laxative prescribed by the doctor.
- The day before the procedure, you will stop eating food at a time directed by the doctor. From that point on, you will drink only “clear” liquids, which includes water, cola, stocks, and the like. Prepare the prescribed mixture according to the directions, put it in the refrigerator, and go to work or wherever you’re headed for the day.
- Around 5 pm on the evening before, you will take a dose of laxative, which will begin the process. Soon after, you will consume one-third of the refrigerated mixture. The alleged taste and consistency of this emulsion is the epic source of many a dramatic tale of woe about the process. The truth is somewhat more mundane. The mixture has a slightly salty-citrusy taste and, if it is properly mixed, is smooth and fairly clear and not, as the legend has it, nuclear green, gritty, foul-tasting, or resembling eye of newt. It is admittedly not intended to be savored like a cocktail, but it’s not indigestible or repulsive, either.
- Soon after consuming your first course of the mixture, the bowel movements will begin, and will continue for the next few hours. You will keep consuming “clear” liquids along the way to keep your electrolyte balance straight, and to keep from getting dehydrated.
- After a couple of hours, you will drink another one-third of the mixture, and continue with the “clear” liquids. The colon-cleansing will continue.
- Finally, after another couple of hours, you will drink down the last one-third, and continue as before until the urge to go ends, at which point you will retire to bed, happy to be through with this phase.
On the morning of the procedure, you report to the hospital or facility, accompanied by someone who will be able to transport you home when it is over. Still nothing other than those “clear” liquids this morning. You are ushered into a room where you doff your clothes and don one of those ridiculous hospital gowns. An IV live is installed.
You are then wheeled to the procedure room. The doctor enters and explains the procedure. In a few minutes, Versid is injected into the IV line, and you are immediately in a sound sleep.
After an hour or so, you wake up to find the doctor sitting there with a report that either (a) everything is fine, or (b) something has to be sent to the lab to be checked out, or (c) there is a problem, and here’s what needs to be done about it. And then you are free to go, to be transported home by your driver so you can sleep off the Versid.
That’s it. You never feel a thing. No side-effects or after-effects, no hilarious episodes, no humiliating embarrassment, no drama, nothing other than what could be for you a life-saving experience. The doctors and nurses are professional and reassuring. They do this every day. It’s not funny or tittilating to them.
An upper GI scope is even simpler, since it does not involve all of the bowel-cleansing preparations.
Lawyers (and judges, for that matter) can be notoriously resistant to what they see as outside interference with their own self-determination. We pride ourselves on our independence, so we bridle when someone tells us that we should do this or that for our own good. But, I am telling you, this is something you really should do for your own good. If you don’t care anything about your own good, then do it for the good of your spouse or significant other, or your children, or your grandchildren.
As a person who absolutely detests putting myself in the control of doctors, I can testify that this procedure is not as bad as rumored around the water cooler.
Don’t wait until you have symptoms. Get a scope. Now.
Not Under the Influence
November 14, 2013 § Leave a comment
Two recent cases, both decided by the COA on October 22, 2013, upheld chancellors’ rulings that decedents’ actions were not the product of undue influence.
In Wheeler v. Wheeler, the court upheld a chancellors’ decision that, although the decedent and his brother had a confidential relationship, the will and deeds in favor of the brother were not the product of undue influence so that they should be set aside.
And in Estate of Mace: Colbert v. Gardner, the court affirmed the chancellor’s refusal to set aside a will based on undue influence. The court also rejected the plaintiff’s claim that the decedent lacked testamentary capacity.
We’ve talked here before about the onerous burden that the plaintiff bears to convince the trial court that a will, deed, or other instrument should be set aside for undue influence. We also talked about the proof necessary to prove lack of testamentary capacity.
The law sets a high bar for those who are seeking to set aside instruments. If you are approached by a prospective client, even one with a fistful of dollars to finance litigation, you should make sure that the proof rises to the level that would justify the relief you are seeking.
You can read these recent cases and draw your own conclusions.
Yet Another Interment in the MRCP 54(b) Graveyard
November 13, 2013 § 5 Comments
The newest appeal to be interred in the MRCP 54(b) graveyard is In re Heirship of Gardner: Young, et al v. Pollion, et al., decided by the COA on November 5, 2013.
The petitioners sought to reopen the estate of Albert Gardner, who died in 1924, to determine his heirs. At stake were claims of the petitioners to oil, gas, and mineral royalties. The claimants were putative children of Albert Clayborne, a descendent of Albert Gardner, who died in 1998 with no adjudication of his heirship until the instant action.
The chancellor heard proof and rendered a 50-page opinion adjudicating certain persons to be heirs, and denying claims of others.
Here’s what Judge Fair’s opinion said on this now-utterly-familiar topic:
¶8. Under Rule 54(b), a trial judge “may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties” in an action. M.R.C.P. 54(b). But the judge may do so “only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” Id. And absent a Rule 54(b) certification, any judgment – regardless of how designated – is not final if it “adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties.” Id.; see also M.R.C.P. 54(b) cmt.
¶9. Rule 54(b) does not require that a judgment be entered when the court disposes of one or more claims or terminates the action as to one or more parties. “Rather, it gives the court discretion to enter a final judgment in these circumstances and it provides much needed certainty in determining when a final and appealable judgment has been entered. If the court chooses to enter such a final order, it must do so in a definite, unmistakable manner.” M.R.C.P. 54(b) cmt. Here, the chancellor did not indicate that the order was a final judgment or provide any Rule 54(b) certification. The fifty-page order contains many gaps regarding Albert Gardner’s descendants and their spouses, as recognized by the chancellor:
IT IS, FURTHER, ORDERED AND ADJUDGED that the aforementioned determination of heirs are subject to any spouse who survived said heirs who was not made a party to this litigation.
Whether Albert Clayborne’s mother and his grandfather survived their spouses is undetermined in the order. Further, the record shows that the order appealed from has been amended since the Appellants filed their appeal with this Court. We therefore conclude that these heirship proceedings are not final, even as to the Appellants, as they are still subject to further changes and amendments.
¶10. Without a certification under Rule 54(b), “any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” M.R.C.P. 54(b) cmt; see also Owens v. Nasco Int’l., Inc., 744 So. 2d 772, 774 (¶8) (Miss. 1999). Further, the Appellants neither sought nor received permission under Rule 5 of the Mississippi Rules of Appellate Procedure to proceed with an interlocutory appeal of this nonfinal judgment. An appellate court, on its own initiative, may dismiss an appeal for the absence of a Rule 54(b) certification. Miller v. R.B. Wall Oil, Co., Inc., 850 So. 2d 101, 103 (¶5) (Miss. Ct. App. 2002). Therefore, we dismiss for lack of jurisdiction.
R.I.P. yet another appeal.
Every time I see one of these cases, I think that I am seeing the very last in a long line of dead appeals. Yet, the supply appears to be unendless. We need a bigger graveyard.
The Final Word: No Written Agreement = No ID Divorce
November 12, 2013 § 5 Comments
We visited the COA case of Sanford v. Sanford here, back in May of 2012. Sanford is a case where the chancellor allowed the parties to dictate a settlement agreement into the record, accepted it as a final settlement of all issues, and granted an irreconcilable differences divorce.
The COA, in a case I described as a “Shortcut to Failure,” reversed, finding that, since there was no written agreement as required by the statute, the divorce had to be set aside.
But, lo, the MSSC granted cert in the case and took it into its bosom, where it has reposed since, piquing speculation that, perhaps, the Supremes were prepared to take a different tack. After all, if the high court intended to leave the COA decision undisturbed, why grant cert, right?
The speculation grows out of the outlier case of Bougard v. Bougard, 991 So.2d 646 (Miss.App. 2008), which did approve a chancellor’s grant of a divorce based on an announced settlement in open court, without a separate, written agreement. The case goes against a long line of holdings to the contrary, including the most recent, Reno v. Reno, which we posted about here.
So, the COA had reversed Sanford, holding that a written agreement is a sine qua non for an ID divorce. On cert, surely the MSSC pointed a new direction, didn’t they?
Well, in a word: no.
In Sanford v. Sanford, rendered October 31, 2013, penned by Justice Pierce, the high court affirmed the COA, saying that, “Because the requirements of neither [MCA] Section 93-5-2(2) nor Section 93-5-2(3) were completely met here, we affirm the judgment of the Court of Appeals, reverse the judgment of the Chancery Court of Lamar County, and remand the case for further proceedings consistent with this opinion.”
That would appear to put the final, end-stop punctuation to the procedure in which the assembled parties and lawyers try to announce a settlement on the record to obtain an irreconcilable differences divorce. No written agreement = no ID divorce. No written consent = no ID divorce. It’s that simple.
This would also seem to be the last gasp of Bougard.
“Quote Unquote”
November 8, 2013 § Leave a comment
“Not to know what happened before you were born is to remain forever a child.” — Cicero
“If you don’t know history, it’s as if you were born yesterday. If you were born yesterday, then any leader can tell you anything.” — Howard Zinn
“I don’t know much about history, and I wouldn’t give a nickel for all the history in the world. It means nothing to me. History is more or less bunk. It’s tradition. We don’t want tradition. We want to live in the present and the only history that is worth a tinker’s damn is the history we make today.” — Henry Ford
The Better Chancery Practice Blog 