This post is just for those of you in south Mississippi, which is probably everyone who reads this blog.

If you are in the viewing area of WLOX TV out of Biloxi, tune in to LawCall at 10:30 pm on Saturday, February 11, 2012. I will be appearing and answering questions on family law.

You can even call in with your questions.

(photo credit: ccharmon via Flickr)

It is not that unusual for one or both of the spouses to file for bankruptcy protection while in the middle of a divorce. What effect does bankruptcy have on the divorce proceedings or on the divorce judgment?

Obligations under a Divorce Judgment

In a nutshell, no obligation incurred to a child or ex-spouse in a divorce is dischargeable in bankruptcy. Section 523(a)(5) of the Bankruptcy Code states that a domestic support obligation is nondischargeable. Section 523(a)(15) provides that other obligations are also nondischargeable.

Before the bankruptcy reforms enacted in 2005, the spouse seeking to have a property division obligation enforced would have to prove that enforcing the obligation would harm the spouse in bankruptcy less than he or she would be harmed by discharging the debt.

Effect on Divorce Proceedings

When a debtor files bankruptcy, the automatic stay goes into effect. This prevents any collection attempts on the debtor’s property. It also prevents a court from assigning property to another, including a spouse. In that event, the spouse who is not in bankruptcy must file a motion with the bankruptcy court to lift the automatic stay so that the divorce court can divide the marital property.

(Illustration by The-Lane-Team)

Some other lawyers, including myself, are blogging the alphabet on our practice areas. There would be one post for “A,” another for “B,” and so on. This is the first in the ABC’s of Divorce—A is for Attorney Fees. This isn’t about the cost of legal representation, per se, but this post is concerned with when the trial court may award attorney fees to a party in a divorce.

There are two broad conditions that justify the award of attorney fees. The first is when one party has the inability to pay. The other condition is based on the party’s conduct.

Inability to Pay

Under Mississippi law, a party to a divorce may be awarded attorney fees when they are unable to pay. But what exactly is an inability to pay?

That is determined based on the party’s assets, expenses, and income. Unfortunately there are no hard and fast rules. It seems, based on rulings of the Mississippi Supreme Court, that you need not dip into retirement accounts, and sometimes, you do not need to sell your assets. However, in other cases, the courts have held that a party must do so. What is clear is that the inability will be determined on a case by case basis.

The chancellor should justify his finding on the record—that is, in writing—and must consider what are known as the McKee factors:

1. A sum sufficient to secure a competent attorney;
2. The skill and standing of the attorney employed;
3. The nature of the case and novelty and difficulty of the questions at issue;
4. the degree of responsibility involved in the management of the cause;
5. the time and labor required;
6. the usual and customary charge in the community; and
7. the preclusion of other employment by the attorney due to the acceptance of the case.

Even if the judge finds there is an inability to pay, he must also consider the financial disparity, if any, between the parties. Finally, there must be some proof on the inability to pay.

Party’s Conduct

The conduct of a party may justify the award of attorney fees in the following situations:

• Dilatory Tactics – when one party prolongs litigation and increased the other’s expenses by concealing assets or refusing to comply with discovery, an award may be appropriate.
• Contempt Actions – This is the most common way fees are awarded and occurs when a party violates a court order.
• Unfounded Allegations of Child Abuse or Domestic Violence. In my experience, many attorneys are not ware of this, and I haven’t seen that many requests for fees in those situations.

Reimbursement

Usually, the award of attorney fees is done as a reimbursement. You will have to pay your attorney, and then you get awarded the fees back by the court. In a few situations, an attorney may take the case with only the hope of getting fees at the end, but that runs a little to close to taking a contingency fee for a divorce—which is prohibited—for my taste.

Photo Credit: Stevendepolo

People are often surprised at how much work they have to do to get a divorce. That’s not to say the lawyers do a lot of work as well, but there’s a lot we can’t do. Part of what we can’t do is provide information for discovery.

Discovery is part of the pre-trial process in which both sides are able to find out just what the other intends to prove and what facts can be established. You may be required to produce records that span several years, list all persons with information pertaining to the case, and more.

There are three main “tools” that are used in discovery.

Requests for Admission

The first of these are requests for admission. On their face, they look innocent enough, but in a way, they are the most dangerous of the tools. As the name suggests, requests for admission request a party to admit certain facts. For example, a requests for admission might read, “Admit that you are married to Sallie Doe.”

How is that dangerous? Well for one thing, you can’t just give a blanket denial of all requests. If you deny a fact that is later proven as true, you can be held liable for the attorney costs associated with proving that fact.

The other danger is that requests for admission are the only method of discovery that is self-enforcing. If they are not answered within thirty days, then the requests are deemed to have been admitted. So if you dilly-dally around, you may wind up admitted that you committed adultery or whatever other facts were requested to be admitted.

Requests for Production

Another method of discovery is the request for production. Officially, these are “requests for production of documents and tangible things,” but you’ll hardly ever hear them referred to as that.

Again, the name of this method pretty much explains what this is. It is a request made for the opposing party to produce documents or other items.

In some cases, this will result in boxes and boxes of paper and can become the search for a needle in a haystack. To help prevent this, documents are to be produced as they are kept in the course of business or in a manner directing the requesting party to the documents requested.

Interrogatories

Interrogatories are the only discovery method where the parties themselves have to sign the responses. An interrogatory is a written question that must be answered under oath and in writing. Because they are answered under oath, the responses can be used as evidence in the trial.

Unlike other discovery methods, interrogatories are limited in number. A party can only serve a total of 30 interrogatories upon another party.

Objections

An attorney is allowed to object to the interrogatories or requests.  As a practical matter, the objection will likely not do much good in a divorce case. That is because divorces in Mississippi are decided by judges and not by juries. A professional jurist, such as a judge, is much less likely to be swayed by an improper discovery request.

It can be hard work to answer all the discovery requests, but if both parties participate in good faith, it can eliminate a lot of disputed issues and help settle many cases.

(photo credit:  jintae kim)

Is Alzheimer’s like death? That’s what evangelist Pat Robertson is saying. He recently advised a viewer of The 700 Club that Alzheimer’s is like death, and it is permissible to divorce in those circumstances because Alzheimer’s is like death. If that disease is like death, I would assume Mr. Robertson would, in the Zombie Apocalypse, think it was permissible to divorce the undead.

I’m not going to examine the moral or theological aspects of Mr. Robertson’s statement, but legally, could you get a divorce from someone with Alzheimer’s?

It may be surprising, but you can get an irreconcilable differences divorce from someone with Alzheimer’s Disease. As you may know, that requires both spouses to agree to end the marriage. How can the court be sure a person with that condition has the capacity to agree? First, the person with the disease will probably need a guardian or conservator to be appointed. Then, they will also need a guardian ad litem. Assuming they are both good with it, the divorce will probably go through.

What about a contested divorce? Could Alzheimer’s be considered “incurable insanity,” one of the grounds for divorce in Mississippi? I doubt it. First, the statute requires the insane spouse to be confined to an institution for treatment for at least 3 years. I doubt a long-term care facility would qualify as an “institution.”

Second, two physicians must find the defendant insane. I don’t think you could get a doctor to say that a patient with that debilitating condition was insane.

For my final reason why I don’t think such a quest would prevail, you have to look outside the divorce statute. Mississippi recognizes a method to have a person involuntarily committed if they, due to mental health issues, are a danger to themselves or others. However, that statute specifically excludes “infirmities of old age.” I would imagine that Alzheimer’s qualifies as such an infirmity.

Even if Alzheimer’s was a basis for divorce, the defendant would still need a guardian ad litem. Even then, could the defendant contribute to their defense at all?

As the baby boomer generation grows older, chances are that we’ll see more divorce because of Alzheimer’s.That said, I don’t think there needs to be a new basis for divorce added. The procedural safeguards are already in place in an irreconcilable differences divorce.

Do you think Alzheimer’s is a justification for divorce? Let me know in the comments.

(Photo credit: By iluvrhinestones from seattle, oceania, upload by Herrick (rampant) [CC-BY-SA-2.0 (www.creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons)

I was going to publish a post on recent statistics that show—surprise—that divorce rates are higher in the South than in other parts of the country. However, there have been others who have done a good job of reporting on it, so rather than waste pixels and repeat what others have written, let me direct you to Ben Stevens and Judge Primeaux.

I often receive phone calls from people who describe a situation, and ask me, “Do I need a lawyer?” That’s actually a tough question to answer. You never need a lawyer, but it often helps. I usually reply to that question with a saying that I believe I learned from Judge Primeaux: “You have the right to represent yourself in court. You also have the right to remove your own appendix. Neither is necessarily a smart idea.”

Nevertheless, there are more and more people who are representing themselves in court. I attribute that to a couple of things. First, there’s the economy. In case you haven’t noticed, we’re in the middle of a recession. Some people say we are (or were) recovering, but I haven’t seen it. Because of the pain they feel in their pocketbooks, people will either put off legal action or risk it without a lawyer for something they see as simple, like an irreconcilable differences divorce.

The other cause is the proliferation of web services such as LegalZoom and RocketLawyer. These sites promise to deliver to you a customized legal document, ready for you to sign and file with the court.

Is it safe to use such sites? In my opinion, no. There’s a couple of reasons for this:

“General” documents are generally a bad idea.

The documents obtained from these services are, for the most part, very general and drafted for many jurisdictions. They may comply with all the requirements stated in the law books, but they don’t take some things into account.  For example, I once spent three months trying to get a judge to approve a judgment of divorce in an irreconcilable differences divorce.  The judgment I drafted included everything the law requires, but, as I learned, that judge will only approve a judgment if it is in the same form as an out-of-print forms book.

Such documents may save you money right now, but they’ll cost you more in the long run. I recently finished a case where my client used one of those services and the judge signed the judgment. Less than six months later, my client’s ex-wife didn’t allow him to visit with his children. Why? Because there was a term in the judgment that was ambiguous. It could be read to support either position. A good lawyer will spot things like that and will reduce (I don’t think it’s possible to eliminate) the chance of ambiguities in a document.

Drafting legal documents may be illegal.

The service the website is providing may be illegal. Most people know it is illegal to practice law without a license. Most people, including many lawyers, are less clear on what exactly is practicing law. The Mississippi Bar has proposed a change to better define the unauthorized practice of law.

Part of the proposed changes would define preparing, writing, or dictating legal documents for another to be the practice of law. This would make the services offered by LegalZoom illegal in Mississippi.

I see this as good and bad. Good, for the reasons I’ve stated above. It’s bad because I think most people are going to perceive it as lawyers trying to keep out competition, and these services aren’t competition for a real lawyer. A lawyer sells knowledge, advice, experience, and that sometimes takes the form of a document. LegalZoom and other sites sell documents. Period.

What do you think? Are these services practicing law? Do they provide a real value? Leave a comment and let me know what you think.

The United States Supreme Court issued its opinion today in Turner v. Rogers. That case originated in South Carolina, where Turner was sentenced to jail for failure to pay child support, even though he claimed it was impossible for him to pay it.

While I have not had time to read the opinion yet, I have read some summaries, and it has the potential to be a game-changer where one parent is suing another for failure to pay child support.

In a 5-4 decision, the high court found that Turner’s due process rights had been violated. Specifically, the court three problems:

• The trial court never told Turner that his ability to pay was the crucial question at the contempt hearing;
• Neither the trial court nor its employees provided Turner with a form for his financial declaration; and
• The trial court never even officially determined whether Turner had the ability to pay the child support he owed.

So, does this mean you have the right to counsel at a contempt hearing where jail time is a possibility? Not necessarily. The court’s opinion stated alternative methods could be used to ensure due process. I do not know if the opinion mentioned what those “alternative methods” could be.

This could have serious ramifications, especially in a poor state like Mississippi. Most counties in the state don’t have an established public defender’s office for criminal cases. If something like that has to be created for civil contempt hearings, where will the money come from?

Update:

Another summary I have read indicates that an attorney will not need to be appointed where four conditions are met:

(1)  notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding;

(2)  the use of a form (or the equivalent) to elicit relevant financial information from him;

(3)  an opportunity at the hearing for him to respond to statements and questions about his financial status;

(4)  an express finding by the court that the defendant has the ability to pay

I sometimes have clients who, for whatever reason, think that they should have custody  over one child, while there spouse should  have custody of their other child. As a general rule, courts are against splitting siblings between parents, and that is what I usually advise my clients. However, in Bolton v. Bolton, handed down by the Mississippi Court of Appeals on May 24, 2011, the court did just that.

In that case, Randy and Stephanie Bolton divorced in 2003. Randy later filed to modify custody, seeking to obtain physical custody of his and Stephanie’s son, Tyler. The trial court modified custody as requested, which resulted in Tyler’s separation from his sisters (who apparently lived with Stephanie).

The Court of Appeals noted that the trial court reviewed the Albright factors, as is required in a modification of custody. The Court of Appeals court also noted that the Albright factors are used to help the trial judge determine the overall consideration, which is what is in the child’s best interests.

While courts generally do not like to separate siblings, that is not one of the Albright factors, and it is within the trial judge’s discretion should he find that is in the child’s best interest. In the situation before the trial judge, it was found that the separation was in Tyler’s best interest, and was therefore justified.

Photo Credit: Ruth L

There are a lot of misconceptions out there about divorce. Below are five commonly-held myths about divorces in Mississippi and the truth behind each.

1. I’ll get half of everything.

False (sort of). The popular belief is that each spouse is entitled to half of what the couple owns together. That is, for the most part, true in a community property state. However, Mississippi follows the doctrine of equitable division.

Under equitable division, the judge attempts to achieve a fair and equitable division of the marital property. The judge will consider a number of factors, including

• The length of the marriage;
• Tax consequences of the property division;
• Income and earning potential of each spouse;
• The contribution by each spouse to the accumulation of assets;
• … and more.

So, it is possible that you will get half of your combined assets, but there is no guaranty that such a result will happen.

2. I’ll get all of the property because my spouse is at fault for the divorce.

False.  As stated above, the judge will attempt to achieve an equitable result in the division of the property. Of all the factors to be considered, fault is not even named.

There is a “catch-all” factor, and that is presumably where fault can be considered. Even so, a judge is not to use property division to punish an at-fault spouse. This means that it is almost impossible that one party will bet all of the marital property just because the other was at fault.

3. I’ll get the kids because I’m the mother.

False (and true). There used to exist what was known as the tender years doctrine. This doctrine called for mothers to be given preference for custody of young children. It was based on the belief that a female is more caring, nurturing, and loving than a male.

The tender years doctrine now appears as one factor among many for the judge to consider. Those factors, called the Albright factors, are:

• Age, health, and sex of the child;
• Continuing care of child prior to separation;
• Parenting skills;
• Capacity to provide primary child care & employment responsibilities;
• Physical & mental health and age of children;
• Emotional ties of child and parent;
• Moral fitness;
• Home, school, and community record of the child;
• Preference of a child twelve or older;
• Stability of the home environment and employment of each parent; and
• Other factors the judge believes relevant

My opinion, however, is the Albright factors tends to favor mothers. This is because mothers are typically the primary caregivers of the children, which results in closer emotional ties, and more easily proven parenting skills. I have seen men win custody of children, but it is typically only when the judge finds some problems with the moral fitness of the mother.

4. I can get a no-fault divorce.

Not in Mississippi. A true no-fault divorce can be filed by just one spouse. You can, without having any reason, unilaterally decide you want to end your marriage.

Mississippi does not have a true no-fault divorce. We have fault-based divorces and irreconcilable differences divorces. In a fault-based divorce, you will have to prove you are entitled to a divorce. An irreconcilable differences divorce requires both spouses to agree to the divorce, and they can also agree to child custody, alimony, and property division, or leave any combination of those considerations up to a judge to decide.

5. I can’t get a divorce because I’m pregnant.

True & false. Mississippi law contains no provision prohibiting a divorce when the wife is pregnant. Most judges, though, will not grant a divorce if the wife is pregnant.

The reason behind this is that there is a presumption that the husband is the father of any child born during the marriage. By delaying the divorce until after the child is born, the husband will be responsible for any child support unless he can prove the child is not his. If the divorce was granted before the child was born, there would only be one parent, the mother, responsible for support of the child.