Temporary Setbacks, Part I

December 30, 2013 § 4 Comments

A reader of this blog in N. Mississippi emailed me with an interesting question week before last. He asked whether the following is a common practice in other areas of the state:

I have recently been on the receiving end of opposite counsel filing for divorce on sole ground of Irreconcilable Differences, asking for temporary relief-custody, support, use of home, setting for hearing. I have objected by 12b failure to make a claim for which relief can be granted. We have worked around the 2 cases without necessity of a ruling.

Before proceeding further, I can say that in this district it is a longstanding practice not to allow temporary hearings in cases where the sole ground for divorce is irreconcilable differences. Our thinking is that an ID divorce requires an agreement, either a PSA or a consent, for the court to act, and that absent that agreement no relief is possible. Please note that I am talking only about a complaint on the sole ground of irreconcilable differences, and not: (1) a complaint in which ID is an alternative ground; or (2) where there is a separate count for, say, custody.

The authority of a chancellor in such cases is MCA 93-5-17, which states that “The chancellor in vacation [and presumably during a term] may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and may make all proper orders and judgments thereon.”

As far as I can discover, there is no case law on point. Temporary orders are not appealable, so the dearth of decisions is no surprise.

I polled some chancellors to see what the practice is in their districts, and, as one might suspect, the answers are all over the ballpark. Now, before someone opines that “we need to come up with a uniform practice” for temporaries, keep in mind that the statute specifically says that the chancellor “may” grant temporary relief. It has long been the practice that it is discretionary with chancellors whether to allow a temporary hearing at all, and, if so, the form of that hearing (more on that point in Part II). Here is what the various chancellors who responded said:

  • “No.”
  • “If they allege and show ‘urgent and necessitous circumstances’ I would allow a temporary.”
  • “Assuming you are talking about temporary relief relative to custody and support and use of marital home incident thetero, yes we do allow temporary hearings.”
  • “I do not allow temporary hearings in ID divorces. The statutory premise for ID is agreement on all issues. I do not think you can expand on what the statute allows. I am sure that someone will opine that it could be done statutorily by ‘consent’ but I would counter that with, the issues tried by consent can be appealed, a temporary cannot. As an aside, it seems when you do a temporary in an ID the court may be tipping the scales one way or the other in the negotiations.”
  • “I have never conducted an actual hearing but I have signed agreed temporary orders incorporating the PSA.”
  • “[In this district] temp order[s] setting support and custody (at least) are issued in ID divorce cases all the time … to say this is a common practice in our district would be an understatement.”
  • “I do not allow temporary hearings on ID only complaints. I would sign [an order adopting] a stipulation between the parties …”
  • “No. Never. No justiciable issue.”

That’s about 20% of the chancellors.

If you wind up with a temporary hearing in an unfamiliar district, you would do well to contact a lawyer there who practices in that court and can let you know what to expect.

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.”

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.  

Another Announced Settlement Bites the Dust

August 20, 2013 § 6 Comments

It’s a familiar occurrence: the parties arrive all lawyered-up for trial; judge grants some time to “talk”; the talking leads to a concensus of sorts, or even to a comprehensive settlement; the lawyers meet with the judge and fill the judge in with an outline of the terms. Let’s stop there.

To that point, the situation can still reach a happy conclusion. The lawyers can retire to a computer and hammer out the necessary agreed judgment, or property settlement agreement, or consent to divorce, or other documents, have them signed by the parties, and present them to the court and be done with it.

Or, as frequently happens, they can make an announcement on the record, confirm their agreement before the judge, who incorporates into a judgment, and go their merry ways.

Merry, that is, until one of the parties changes his or her mind and hires another lawyer to torpedo the erstwhile agreement.

The latter (beginning above with the word”Until”) is what happened in the COA case of Reno v. Reno, decided August 13, 2013.

Randy and Casey Reno appeared for a divorce trial, and settlement talks broke out. The parties announced that they had agreed to consent to divorce on irreconcilable differences. The chancellor heard the parties confirm their agreement that they consented to an irreconcilable differences divorce, and she was pretty clear about the import of what the Renos were doing:

In order for the Court to proceed on the ground[] of irreconcilable differences, I have to have both of your consent[s] . . . . Normally, the consent is reduced to writing[,] . . . but there’s . . . case law that allows us to take testimony from y’all about your consent[;] then it will be reduce[d] to writing in the form of the divorce decree.

. . . .

If [it is your agreement], and you agree that you are entering into this consent and that you will sign the consent agreement, the divorce decree, once it is presented, then – and you understand that once you enter into this consent, you can’t change your mind. You can’t back out. I’m going to proceed on irreconcilable differences . . . .

With the verbal consent in place, the court heard the parties agree that each would keep his or her own personal property, and the judge proceeded to a hearing on the contested issues, which were custody and visitation.

Casey was unhappy with the outcome, which gave Randy custody, and she appealed, raising the sole issue that the consent was invalid because it was not in writing, as required by the statute. The COA reversed, relying on Massingill v. Massingill, 594 So.2d 1173, 1178 (Miss. 1992), which held that a consent, in order to be valid, must meet the three criteria set out in MCA 93-5-2(3):

  1. It must be in writing, signed personally by both parties; and
  2. It must state that “the parties voluntarily consent to permit the court to decide” the specific issues on which they cannot agree; and
  3. It must state “that the parties understand that the decision of the court shall be a binding and lawful judgment.”

Since the consent in this case was not in writing, the COA had no choice but to reverse.

My thoughts:

  • The chancellor undoubtedly had in mind the COA case of Bougard v. Bougard, 991 So.2d 646 (Miss.App. 2008), when she stated that there is case law that allows the judge to take oral testimony about the consent. Bougard was not a consent case. In Bougard, the parties dictated their property settlement agreement into the record, which was approved by the trial court. The COA affirmed, despite the statutory requirement that there be a written propertys settlement agreement in an irreconcilable differences divorce. Bougard, however, is the only case of which I am aware in which our appellate courts have upheld a settlement announcement not reduced to writing. As far as the consent cases are concerned, they are uniformly consistent with Massingill, as far as I can tell.
  • This case hammers home a point I made in a previous post that ” … there has been a trend over the past few years where people agree to one thing in court and then, either on their own or with the aid of new counsel, attack their very agreement through a barrage of post-trial motions and on appeal, picking at every conceivable legal nit in an effort to have the agreement declared invalid.” The concept of a person’s word being his or her bond is as outmoded in the 21st century as buggy whips (that is, buggy whips used as buggy whips, if you get my drift).  I think that outmoded concept of honor is why chancellors are so ready to accept on-the-record settlement announcements, and why they are so loathe to let the parties back out of them. Alas, though, neither the statutes nor the mores of this era are consistent with that approach.
  • Lawyers in these parts will tell you how much I dislike settlement announcements. I don’t like them for all the reasons set out above. But I also dislike them because quite often they wound up back in court because something was left out, or there is a disagreement over whet was meant, or somebody misunderstood somebody else. To me, it’s better just to take the time to put it in writing where everyone can see it, and go from there.


May 16, 2012 § 6 Comments

Sanford v. Sanford, decided May 8, 2012, by the COA is the latest in a line of cases that mandate a written agreement settling all issues between the parties before the trial court may grant an irreconcilable differences divorce.

I will spare you a recitation of the convoluted procedural history that led to the appeal. You can read it for yourself. In essence, what happened is a fairly familiar script:

  • Parties and attorneys assemble for some proceeding, perhaps a temporary hearing;
  • In the course of negotiations, the attorneys sense that the whole case can be settled. It may be that one or both parties have been intransigent up to this point and the lawyers sense that if they push ahead, maybe they can get the case resolved;
  • The lawyers shuttle back and forth cajoling and wheedling, cobbling together a rough product, doing their best to smooth the edges, with uneven success;
  • Finally, in hopes that the “settlement” can be held together against the stresses, they recite it into the record, get the parties to mumble their assent numbly, have the court approve it, and get the court reporter to transcribe it as the “written agreement.”

In Sanford, however, Samantha reconsidered and filed a withdrawal of her “consent.” The chancellor denied it, she appealed, and the COA reversed, reiterating its rule that the consent must be in writing, and that it is not sufficient to have the court reporter take the dictated agreement and treat it as an enforceable consent to divorce and/or PSA. In making its decision, the court distinguished a couple of cases that have upheld announced agreements.

Judge Fair dissented, joined by Judges Carlton and Barnes. They would have held that the procedure satisfied the written agreement requirement of the statute. I think most practitioners who have been in that hot-box situation would join in the dissent. But the majority of the court is more comfortable with the formality of a separate, written, signed agreement.

Many lawyers come to court toting along a laptop or at least a zip-drive (i.e., thumb-drive, or USB-drive) or other storage device with form files so that they can hammer out a PSA or agreed judgment or consent while the judge waits. Those of you who are handicapped by being chained to 19th-century technology (pen and paper or quill and parchment) will either have to drag along a secretary with the necessary skills, or upgrade your skills into the 21st century, or tell your client a settlement will just have to wait until some less opportune time.

In any event, the message Sanford sends is pretty clear: get a written agreement signed by the parties if you expect it to pass appellate muster. Shortcuts will not be tolerated.

I used to tell my clients,” We can do it quick or we can do it right.” Translation: “We can cut corners, or we can take a tad longer and make sure we do it in such a way that it can’t be undone.”


January 25, 2012 § 2 Comments

Neither party has asked for joint custody in their pleadings. They consent to a divorce and agree that the chancellor shall adjudicate custody. The husband testifies that he wants sole custody. The wife testifies that she wants either sole custody or joint custody.

Can the chancellor grant joint custody?

The answer is set out in Crider v. Crider, 904 So.2d 142, 148 (Miss. 2005), where the Mississippi Supreme Court stated:

We hold that when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of “joint application” in § 93-5-24(2). This is the only interpretation that conforms to the primary directive of § 93-5-24(1) that “custody shall be awarded as follows according to the best interests of the child.” 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.  

So the answer is yes, where the parties have consented to an irreconcilable differences divorce, the judge may grant joint custody regardless whether it was specifically spelled out as an option in adjudication of custody.

It would seem under Crider’s language that the parties may not limit the court’s determination of best interest — say, by a stipulation that joint custody shall not be awarded — any more than could the statute. But to my knowledge that issue has not been addressed by the appellate courts.

The trial court must still weigh whether the relationship between the parties is suitable for joint custody. After all, joint custody is inappropriate where the parties are unable to communicate and cooperate.  Lewis v. Lewis, 974 So.2d 265, 266 (Miss. App. 2008); Crider, at 147.

In Phillips v. Phillips, 45 So.3d 684, 695-96 (Miss. App. 2010), the COA upheld the chancellor’s award of joint custody, alternating a week at a time, despite a history of animosity and strained relatiosnhips. Citing Crider, the court said at ¶34 that “The chancellor is in the best position to evaluate the parties’ capabilities to cooperate.”     

In Watts v. Watts, decided by the COA on January 24, 2012, at ¶ 28, the court again affirmed the chancellor’s award of joint custody, and cited Crider. The parties had entered into a consent for divorce leaving the issue of custody for adjudication by the court. Echoing Crider, the COA held that it was up to the chancellor to evaluate the evidence and to decide whether the level of conflict between the parties made joint custody undesirable or unworkable. 

Another post with some ruminations about joint custody is here.


January 18, 2012 § 3 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.


January 17, 2012 § Leave a comment

Consider this scenario …

You have represented Betty Sue in several matters, including a contentious divorce, contempts, and closing on her new home. Betty Sue was so satisfied that you have ended up doing legal work for many of her family and friends. She has been quite the bonanza in terms of clientelle. One day she comes into your office with her ex and asks you to do an agreed modification so that Junior can go live with his dad in Simpson County to play football. You draft a joint petition and an agreed judgment, have everyone sign off, present it to the chancellor, and Voila! Another minor miracle to impress Betty Sue and her wide circle of family and friends.

As often happens, though, things fall apart. Junior gets into trouble and is kicked off of the football team. He is not getting along with dad, and he decides he wants to return to mom. Dad refuses. Betty Sue returns once again to your office, and you take a retainer, prep pleadings, and file for modification, fully expecting another feather in your cap. So far so good. Until …

In the mail comes a motion to disqualify you in the case on the basis that you represented both parties in that joint motion and agreed judgment. You dig up the file and to your dismay you see that nowhere on the pleading or the judgment is it indicated that you represented Betty Sue alone. The chancellor sees it the other side’s way, and you are out on your ear. Betty Sue and her family, being country folk who don’t have time for subtleties and nuances, feel that you are dropping her and maybe even have gotten in league with her ex. Ouch. To try to make amends you refund Betty Sue’s retainer so she can hire another attorney. But the damage is done.

The problem could have been avoided if you had simply included a paragraph in the pleading that spelled out that you represent Betty Sue alone in the modification, that you have given no legal advice to the ex, and that he signifies by signing that he understands that he may consult with any attorney of his choice; you should also have spelled out at your signature line “Attorney for Betty Sue _____ only,” and added pro se, after the ex’s name. That would have been plenty for the chancellor to refuse to disqualify you.

The same principle applies any time the other party is unrepresented. Be especially aware when you have a joint complaint for irreconcilable differences (ID) divorce that, since it is unethical for an attorney to represent both parties in an ID divorce, your pleading must spell out which party you represent.

And always, in your property settlement agreement (PSA), add a paragraph identifying which spouse you represent, that you have provided the unrepresented party no advice, and that the unrepresented party has had the opportunity to confer with the attorney of his or her choice. That way, when the pro se party signs the PSA, future quibbling over who you represented is effectively sealed off.

Another source of confusion over who represents whom arises in minor’s settlements. Insurance companies often hire attorneys to file the petition and have it approved by the court. Too often, though, that petition does not specify whom the attorney represents. It would seem to be a simple matter for some language like that set out above to be included in the petition and even in the judgment approving the settlement. Leaving the point ambiguous would seem to be an invitation to a fly-specking attorney to try later to get the settlement set aside. If you would like to read about how and why that might happen, check out Carpenter v. Berry, et al.

Finally, confusion over who represents whom can arise when a lawyer lets his or her name slip into the court file. That happened in my court recently when a lawyer showed up in response to an MRCP 81 summons and allowed as how she “might be hired to represent the respondent,” and signed off on an agreed order resetting the hearing. She later tried to take the position that she had never been hired and so was not in the case. Sorry, but she is in the case until the judge signs an order letting her out. Another post on when appearances can lock you into a case is here.


August 29, 2011 § 4 Comments

The Clarion Ledger reported on August 25, 2011, that Mississippi’s divorce rates are among the highest in the nation. You can read the article here. The findings come from the Census Bureau’s “Marital Events of Americans: 2009,” which was released this week. The article did not explain why the conclusions are based on data two years old.

Key points of the report:

  • Mississippi’s divorce rates for men and women are among the highest in the nation, while its marriage rates rank in the bottom half.
  • Mississippi had the sixth highest divorce rate among women and the 11th highest for men.
  • Even in the South, which recorded the highest divorce rates (the Northeast had the lowest), Mississippi’s numbers exceeded at least seven other Southern states’.
  • Calculating “marital events” per 1,000 men or women ages 15 and older, the rates for Mississippi were 12.5 for women, compared to 9.7 for the nation; and 11.1 for men, also above the national average of 9.2.
  • The marriage rate for Mississippi women was slightly less than the national average: 17.3, compared to 17.6, for a No. 32 ranking.
  • The marriage rate for Mississippi men edged out the national average: 19.3, compared to 19.1, but was only the 29th highest.
  • Although the South had the second-highest marriage rates of any region, Mississippi’s numbers were some of the lowest among its neighbors.
  • The study explains the variations in rates between men and women this way: Men remarry more than women do, so their marriage rates are higher.
  • Women tend to live longer than men and tend to marry older men, so widowhood rates are higher for them than rates men.

No doubt the economy is exacerbating these numbers. Anyone who has done much domestic legal work can tell you that financial issues play a predominant role in marital dissolutions.

It’s not easy to get a divorce in Mississippi unless both parties agree on how to settle every issue, including the knotty issues of custody, support, division of property and alimony. Our current system gives rise to and even encourages a strategy in which one party holds the divorce hostage until the other comes to terms, a phenomenon that some lawyers refer to as “divorce blackmail” or “economic blackmail.” I have heard for years that there are legislators who have blocked reform of our archaic divorce statutes because they don’t want divorce to be “too easy.” This data is evidence that the existing statutory constraints on divorce have been singularly ineffective in accomplishing that goal.

I think it’s time for us to consider a change in our statutory scheme for divorce. Deborah Bell’s suggestion is that we amend our statutes to provide that when parties have lived separate and apart for a year or more either may obtain a divorce on the ground of irreconcilable differences, with some temporary relief. That seems sensible to me. It would avoid precipitous and impetuous actions, and would recognize that there is no sense in perpetuating dead relationships. It would also reduce, and hopefully eliminate, the economic coercion that so often intrudes into the divorce process under our current law.


June 13, 2011 § 4 Comments

John and Marsha have decided that they are tired of living in their own, personal soap opera, and they have agreed to an irreconcilable differences divorce.  It looks pretty simple:

Marsha will get the former marital residence.  It’s paid for and Marsha intends to stay there.  The house sustained some damage in a wind storm a couple of years ago, and the parties got $10,000 for repairs from insurance, but they spent it on a Hawaiian vacation, with a few days in Vegas on the way out, in an unsuccessful attempt at refreshing their marriage.  Marsha says she can get the repairs done or not because they don’t affect its habitability.  The roof needs replacing, but it’s been patched and doesn’t leak.  She says she’ll fix it if and when it leaks or when she sells the house, but she does not have the $6,000 it will cost right now.

The parties own two adjoining commercial lots worth about $15,000 each.  Marsha has agreed to take the lot they purchased in John’s name in 1990 for $1,500 before Wal-Mart located down the street.  John will get the jointly-titled lot they purchased for $12,500 several years ago.  A car lot is expanding and has expressed an interest.  Marsha would like to settle the divorce as soon as possible so as to cash in.  Marsha owes $14,000 on her credit cards, and she’s behind in her payments, so she needs as much cash as she can get out of sale of the lot.

The parties will split the 1,000 shares of Wal-Mart stock that they accumulated through the years.  Marsha really doesn’t know much about stock, so John has generously agreed to divide the shares.

Marsha has enjoyed driving the 2008 Jaguar that John bought her several years ago in an attempt to make up after she caught him in a questionable situation with a waitress from the Waffle House.  The car is paid for, and Marsha loves it because she has never had a nice car before.  She will get it in the divorce.

John has agreed to pay Marsha $1,000 a month in rehabilitative alimony for 36 months.  Even with the alimony, it will be a tight squeeze financially for Marsha, so she doesn’t need any unpleasant financial surprises after the divorce is final.

Marsha is in a hurry.  She wants you to do up the papers and she will pick them up to go over with John tomorrow, so she can get them filed right away.

It’ll be a snap to prep the PSA, and you are tempted to just hand the notes over to your secretary so they can be done while you hit the golf course.

Before you jump on this, though, ask yourself whether Marsha will really be getting what she thinks she is bargaining for.  Consider:

  • The divorce will be a transaction effecting a change of ownership in the former marital residence, triggering a re-rating of the homeowner’s insurance.  Because the hurricane repairs have never been done and approved by the insurance company, Marsha’s homeowner’s insurance premium is likely to skyrocket.  Not only that, but there are other factors that can adversely affect Marsha’s insurance premium, including her credit rating, which is questionable due to the credit cards.  In order to get her homeowner’s insurance premium back with a reasonable range, she will have to spend that $6,000 on the roof and complete the other repairs.  How can she find out in advance whether she will have a problem? Marsha can get a free insurance C.L.U.E. (Comprehensive Loss Underwriting Exchange) report by writing CLUE, Inc. Consumer Disclosure Center, P. O. Box 105295, Atlanta, GA, 30348-5295, or by calling 1-866-312-8076.  An insurance agent can help her decipher the report.  And, as you probably know, she can get a free credit report once a year.
  • When the commercial lots are sold, Marsha will be paying capital gains taxes, currenty 15%, on $13,500.  John will be paying capital gains on just $2,500.  Marsha’s tax bite will be $2,025, leaving her $12,975.  John’s taxes will be a mere $375, allowing him to pocket $14,625, or $1,650 more than Marsha.
  • Also, has Marsha gotten a title opinion on the commercial lot titled in John’s name?  It would be a bitter pill indeed to discover when she goes to sell it that John borrowed money against it without her knowledge.
  • The stock has the same pitfall as the commercial lots.  Stock purchased for $25 a share years ago will carry a much heftier capital gains burden than will the shares purchased for $65 a few years ago.  Moreover, John can allocate himself the shares that have sustained losses in the recent downturn.  Yet the parties are treating all the shares the same, and, to make it worse, John will call the shots.
  • As for her ride, Marsha needs to look at it as a cash drain.  How much is she willing to let it drain her?  The insurance alone is more than $1,500 a year, and this year’s tag, which is now due, is $862.  Not only that, it uses exclusively premium gas, and has never gotten the 21 miles to the gallon that the dealer promised.  Yes, it is paid for, but would she do better selling it and taking the cash to buy something more economical?  Can she even afford this car?
  • Finally, the alimony  is taxable income to Marsha unless the parties agree that it will not be taxable.  John will not likely agree due to the fact that he will get to claim it as a deduction.  Is Marsha aware of this?  Can you negotiate an extra $300 or so a month for Marsha to use to pay her income taxes?

You can do the papers exactly as Marsha dictated, or you can sit her down and bring all these matters to her attention.  It’s the difference between acting as Marsha’s clerk-typist and acting as her lawyer.  You get to decide.

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