October 24, 2012 § Leave a comment
‘Way back in June, 2010, I posted the requirements in this district to present an irreconcilable differences divorce.
As I explained back then …
The chancery judge in an irreconcilable differences (ID) divorce is required by law to make a determination about the sufficiency of the provision for support of the minor children. Different chancellors approach the task in different ways. Some judges require a complete Rule 8.05 financial statement from each party. Some judges take the word of the attorney or litigants.
In District 12, we do not require an 8.05, but we do require that the property settlement agreement (PSA) must include certain information about the income and deductions of the paying parent. Here are our requirements:
- The property settlement agreement must include information showing gross income and deductions for taxes, Medicare and social security for year to date for the paying party, in the form of a pay stub attached to the agreement or a recitation of the actual figures, including monthly and year-to-date figures, in the body of the agreement; or, in the alternative, a statement satisfactory to the court as to why such information is not available. If the pay stub is attached, the agreement itself must include a provision that both parties have seen and are satisfied with the accuracy of the document. If the required information is not included, the agreement will not be approved.
We also have a requirement that the 8.06 disclosures either be in the PSA itself, or that the parties file it with the clerk simultaneously with entry of the divorce judgment. This policy is a recognition of the fact that 99.9% of parties do not file their 8.06 informantion as required in the rules. UCCR 8.06 mandates that the current names, addresses and telephone numbers of both parents must be disclosed and filed in the court file.
We also require at least one of the parties to appear and testify. The witness establishes the jurisdictional facts and answers two questions about the PSA: is it the entire agreement, so that there are no side agreements or unwritten deals; and does it settle all of the marital issues between the parties? If the other party is unrepresented, it would be a good idea to have that party appear also to be available to answer any questions or to make any changes in the PSA that are directed by the court.
September 15, 2010 § Leave a comment
In the past week, I have three pro se divorces presented to me that illustrate some of the problems that people can create for themselves when they undertake to represent themselves.
Case 1. A fairly standard no-fault divorce with no children, no joint debts, no joint property. Husband gets the homestead that he owned before the marriage, and will pay wife for her marital equity. The wrinkle is in a paragraph that provides that the parties will divide the husband’s “retirement annuity,” and allocating the tax liability between them. When I asked the husband how he expected to accomplish it without a QDRO, he replied, to my surprise, that the plan administrator had already disbursed the money to the parties, and that his accountant had told him he could avoid the 10% penalty by addressing it in the property settlement agreement. The agreement did include the phrase “Qualified domestic order,” but did not include any of the ingredients required to constitute a true QDRO within the meaning of the law. I have no idea how the IRS will treat the parties’ home-made paperwork, but if they end up having to pay the 10% penalty, I would bet both of the following will be true: (1) Both parties will be unhappy; and (2) It would have cost a lot less to hire an attorney to ensure that it was either done right or the liability shifted to the attorney.
Case 2. Property settlement agreement with no provision for custody at all, although a child is identified. When I asked why there was no custody provision, the response was that the child is 18 and in college, and there does not need to be a custody arrangement, a statement with which I disagreed. When I asked about the lack of any support provision, the response was that there was no need for support because the child is in college, another statement with which I disagreed, especially based on my own personal experience. I did not bother to read the rest of the agreement, but if the property division was as incomplete as the child custody and support provisions were, I doubt it would have been “adequate and sufficient.”
Case 3. A well-dressed young couple approached the bench. Dad is holding a 2-year-old child, whom he is feeding with a baby bottle. I find three shortcomings in the agreement. First, although they agree to joint legal custody, there is no tie-breaker; you can’t have a committee of two, so who will have final decision-making authority? Second, the agreement states that “both parties shall claim the children as tax exemptions.” How will that work? Do they mean that both claim both children in the same year, or that the exemptions will be divided between them somehow? Sounds like another trip back to court to me. And third, there is no provision for child support for the two children, ages 2 and 4. When I ask mom about it, she says “I am not asking for any support.” Well, I can’t approve it no matter what you want because I have to watch out for the children. The husband proposed that the 3 of us should sit down and I could point out ways to fix their paperwork, but I demurred on the basis that I am prohibited from giving them legal advice, and even if I could, I could not advise both of them in the same case because of their competing interests.
Neither of the cases with children had UCCJEA affidavits.
I previously posted on the problems of pro se litigation here.
September 13, 2010 § 2 Comments
We all hope that when a judgment of divorce on the ground of irreconcilable differences is entered, the result is a final resolution of the parties’ marital strife. Sometimes, though, the disputes come reeling back to life, zombie-like, careening through the trial courts, or try to, anyway. Consider:
In Irby v. Estate of Irby, 7 So.2d 223 (Miss. 2009), the Mississippi Supreme Court finally laid to rest the troublesome question whether a divorce granted on the ground of irreconcilable differences is void because the parties failed to withdraw their contested pleadings. In that case, the husband and wife were divorced based on a consent. Husband died shortly after the judgment was entered, and wife sought to set aside the judgment on the basis that the parties’ contested pleadings had not been withdrawn before the judgment was entered. The Supreme Court held that the consent operated as a withdrawal of the contest, and that it was not necessary to take any other action to withdraw pleadings.
The Irby decision effectively reversed the Court of Appeals decision in Pittman v. Pittman, 4 So.3d 395 (Miss. 2009), rendered only six weeks before Irby. The reversal apparently did not go down well with the Court of Appeals, however. In Sellers v. Sellers, 22 So.3d 853 (Miss. App. 2009), decided 2 months after Irby, the Court of Appeals fired back its disagreement with Irby in lengthy dicta that had nothing to do with any issue raised in the Sellers case. Having gotten that off their chest, the Court of Appeals six months later again followed Irby in the case of Cossey v. Cossey, 22 So.3d 353, 357 (Miss. App. 2009), where they stated through figuratively clenched teeth, “We reach this decision, as we did in Sellers, by strictly applying the supreme court’s recent interpretation of section 95-5-2(3) and (5).”
Bottom line is that when you have a consent that meets all the statutory requirements, you do not need to withdraw contested pleadings. But why invite scrutiny? It’s simple to include in your consent express language that the parties agree that all contested pleadings are withdrawn and dismissed. Or, for an even greater comfort level, you can file an agreed motion followed by an agreed order withdrawing the contest.
The issue in McDuffie v. McDuffie, 21 So.3d 685 (Miss. App. 2009) was whether the Chancellor acted improperly in denying Michael McDuffie’s request to withdraw his consent after the trial had begun. Michael and his wife Kathi had entered into a consent to divorce, which met all of the statutory requirements and had been duly filed. The trial was percolating along nicely when, much to Michael’s dismay, Kathi admitted in her testimony that she had committed adultery. Stung by the revelation, Michael moved to withdraw his consent, which the Chancellor refused, based on the facts that the consent had been filed three years before the trial was commenced, several motion hearings had intervened, and the trial had begun. The Court of Appeals upheld the Chancellor’s decision based on § 93-5-2, MCA, which states in part that the consent, ” may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto.” It was not error in the circumstances for the court to refuse to grant leave to withdraw.
Can the trial court grant a divorce on irreconcilable differences where there is no pleading properly before the court requesting it? In Tyrone v. Tyrone, 32 So.3d 1206 (Miss. App. 2009), husband had filed a complaint for separate maintenance, and wife filed a response that included a counterclaim for an irreconcilable differences divorce and a motion to dismiss husband’s complaint. The trial judge dismissed husband’s pleading, but never conducted a hearing on wife’s counterclaim for divorce. Husband subsequently filed a second complaint for separate maintenance, and wife responded with a motion to dismiss. In a later hearing dealing with some contempt issues, the trial judge urged the parties to settle the matter as an irreconcilable differences divorce, which they did, and he granted a divorce on the ground of irreconcilable differences. Wife appealed, and the Court of Appeals reversed.
If you read Tyrone, you will doubtless be struck by the tortuous route from pleading to final result at the trial level. If you come away with the conclusion that there must be a pleading before the court, filed more than sixty days previously, requesting irreconcilable differences, and a consent or property settlement agreement that meets the statutory requirements, that is enough.
A similar result was reached in Johnson v. Johnson, 21 so.3d 694 (Miss App. 2009), where the trial court granted a divorce on the ground of irreconcilable differences where there was no agreement, and the parties had not executed a consent.
Perhaps the most zombie-like case of all is Henderson v. Henderson, 27 So.3d 462 (Miss. App. 2010), in which the trial judge signed a judgment of divorce on April 23, 2002, but the judgment was never filed with the clerk. Some time later, the case was dismissed for inaction pursuant to Rule 41(d), MRCP. In 2005, husband discovered the omission and filed a Complaint for Divorce on the ground of desertion. In 2006, wife filed a motion asking the Chancellor to correct the oversight by entering the judgment nunc pro tunc to April 23, 2002, which the judge did. Husband appealed, complaining that it was error for the judge to enter the judgment after had filed his pleading on a fault ground. The Court of Appeals disagreed, pointing out that, “[C]ourts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered,” and that the later judgment is effective on the date that it should have been entered but for the omission. Thus, husband’s pleading had no effect on the ultimate outcome.