Not news to me: More and more people are choosing to go through divorce without a lawyer. Up to 40% to 70% in some areas.

Mississippi has the oldest age of majority in the United States. In most states, a person is legally an adult at age 18. In Mississippi, though, the age is 21. This means a Mississippi order of child support continues until the child reaches the age of 21.

There are a few exceptions to that rule. One such exception is that child support will end upon the emancipation of the child.

Emancipation is the removal of the legal “disability” of childhood. An emancipated child is treated, under law, as an adult.

Section 93-11-65 of the Mississippi Code states a child may be emancipated when the child:

1. Attains the age of 21;
2. Marries;
3. Joins the military and serves on a full-time basis; or
4. Is convicted of a felony and sentenced to serve at least two years for that felony.

Unless the support order states otherwise, a child is automatically emancipated when one of the above-four events happens.

There are other ways a child may be found to be emancipated, but a court must first determine that those events have happened:

1. The child is 18 and has discontinued full-time enrollment in school (unless handicapped);
2. The child voluntarily moves from home, establishes independent residence, and discontinues education prior to the age of 21; or
3. Cohabits without permission of the parent paying support.

Like the first four, these conditions do not emancipate the child if the support order allows for them.

I wanted to take a quick break from this blog’s regular topics, and let people know about some important legislation pending in the Mississippi legislature.

The bill would enact what is known as “loser pays” litigation. That means that if you sue me, and I win, you pay all my attorney bills and expenses and all of yours.

This, in itself, doesn’t sound bad at first, until you realize that while it may keep a lot of frivolous lawsuits from being filed, it will also keep a lot of good ones where the person injured is too scared to file suit on the chance they may lose and have to pay the other side’s bills. But wait, it gets even worse.

The bill also has a provision that says that if the plaintiff’s lawyer charges a set fee or hourly fee and the plaintiff loses, then the plaintiff doesn’t have to pay the winning side’s bills.  Ok, what’s so bad about that? In personal injury cases, most plaintiff’s lawyers charge on a contingency basis. They don’t get paid unless their client wins, and then they get a portion of any recovery. This means the people who don’t have to pay under this bill are the people (and corporations) that can afford to pay their lawyers as much as it takes to win. In short, it is really stacking the deck against the common man.

I don’t think this will have much affect in family law, since most clients, regardless of which side they’re on, pay hourly or fixed fees to the attorneys. The only situation I can think where it would affect family law is in a contempt case where the attorney is willing to take the case on the chance that his fees will be paid by the  person in contempt.

You can find much more on this bill at the MS Litigation Review by Phillip Thomas.

Image Credit: Mushroom and Rooster

You’ve heard of cougars, now there are pumas.

I know it’s a subject that most people never want to consider, but death must be dealt with, even in family law.  The death of a party can effect any part of a divorce judgment.

Before the Entry of Judgment

If a party dies after the divorce has been filed but before a judgment has been entered, then the action, along with the deceased party, is dead. However, if the judge has issued a bench opinion, and the death then occurs before the judgment is reduced to writing, the judgment can be entered once it is on paper.

(Photo credit: TooFarNorth)

Child Support

Once a party paying child support dies, the support obligation ends. Absence an agreement otherwise, the  estate is not responsible for continuing to pay child support.

I usually insist on a provision that the support-paying parent must take out a life insurance policy  on him/herself with death benefits payable solely to the children (if there is not already such a policy in place). I think that is just part of responsible parenting.

(Photo Credit: Sam Howzit)

Death and Alimony

Whether death ends alimony depends on the form of alimony. Permanent alimony will end upon the death of either the payor or the payee, as will rehabilitative alimony. Lump sum alimony and reimbursement alimony continue after the death of the payor, and the estate must continue to pay any remaining obligation.

Separation Agreements

Parties often enter into an agreements in a divorce, especially irreconcilable differences divorces. Those agreements may or not be enforceable after the death of one of the parties.

Generally, such an agreement will not survive death because the agreement is contingent upon a court granting a divorce. If the agreement contains specific provisions that it is not contingent upon a divorce, then the obligations will continue past the death of one of the parties.

It’s never too late for love . . . even after a divorce.

One of the grounds for divorce that just about everyone has heard of is cruel and inhuman treatment. The “full” name is habitual cruel and inhuman treatment, and even though it is probably the most commonly used fault-based ground for divorce, it is actually a pretty difficult to prove.

The Supreme Court has said that a divorce based on habitual cruel and inhuman treatment (“HCIT”) is only appropriate where conduct was so extreme that continuing the marriage would endanger life, limb or health.

Conduct

Just what conduct is sufficient to be called HCIT? Remember, it is “habitual,” and that, in most cases, one incident of physical violence is not sufficient. However, where an isolated incident of physical violence is combined with other conduct, such as chronic verbal, mental, and emotional abuse, it is possible for HCIT to be found to exist.

What if there is no physical violence at all? Then it is even harder to prove. It is possible for a pattern of behavior to be so outrageous as to be classified as HCIT. In that situation, there must be a history of acts that when taken together render the marriage so revolting that it is impossible for it to continue.  In the cases that fall under this description, the focus is usually upon the effect the behavior has on the offended spouse and not on the legally fictitious “reasonable person.”

Proof of Habitual Cruel and Inhuman Treatment

Like the other grounds for divorce, there must be corroborating evidence of the behavior and actions that that are cruel and inhuman. A loophole exists, though, where corroboration is not reasonably possible because of the type of conduct or the location where it took place.

Additionally, the evidence need not directly prove the treatment. The evidence must, however, lend enough support to the plaintiff’s testimony for the court to conclude that the testimony is true.

Photo Credit: CrumleyFamily (via Flickr)

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