The Armstrong factors to be considered in connection with an alimony award are the spouses’ income and expenses, the parties’ earning ability, the parties’ needs, the parties’ obligations and assets, how long the marriage was, the presence of minors, the parties’ age, their standard of living during the marriage and when support was being determined, tax consequences, spousal fault or misconduct, the waste of assets, and any other factor considered just and equitable to set alimony.

In a recent appeal, a woman sued for divorce, and the couple agreed that it was on the basis of irreconcilable differences. A chancellor had to decide issues of alimony, equitable distribution, and attorneys’ fees. A judgment of divorce was executed, in which the divorce was granted and the marital assets were divided. The wife was awarded $1,360 on a monthly basis from the husband’s retirement account, with this payment to be made for 12 years. The wife appealed on the grounds that no specific findings were made and that the chancellor had failed to make specific findings about alimony.

The couple had married in 1998, and during the marriage, the husband was a community college dean who earned about $80,000 each year to start. The wife worked as a registered nurse but quit in 2012 because of her health, and she received more than $1,000 each month from a trust her mother, now deceased, had established. Her father also gave her money each year, sometimes on a monthly basis.

The husband retired in 2010 with a salary of about $150,000. That year, the couple bought their marital home in Tupelo for $166,000; it was purchased outright with mostly funds from the wife’s father. During retirement, the husband kept doing contract work and earned about $6,900 each month, but he planned to retire from this position in 2016. He’d accumulated $67,767 in his retirement account in connection with the contract position. The couple separated in 2014. The appraised value of their home was $220,000, and the couple’s savings account had $341,329.

An oral ruling was made but not included on the record. The judgment gave the wife the marital home, divided the couple’s savings account and assets, and awarded the wife a portion of the husband’s state retirement, to be paid for 12 years. The court didn’t reference the Ferguson factors or guidelines related to this division and alimony. The appellate court explained that a failure to provide a factor-based analysis didn’t necessarily require reversal if it was clear the chancellor considered the relevant facts.

However, in this case, the appellate court didn’t find the chancellor adequately applied the factors. The husband also argued that the amount awarded from the retirement account wasn’t alimony but an equitable division of marital assets. The chancellor hadn’t made specific findings as to the Armstrong factors. The judgment was reversed.

M. Devin Whitt is an experienced divorce and family law attorney practicing in Jackson, Mississippi who can help you manage any issues that may arise in the division of marital property or a request for alimony during a divorce. Contact the Law Office of M. Devin Whitt for a free consultation at 601-607-5055.

More Blog Posts:

Mississippi Divorce Statute: A Cooling Off.. Or Heating Things Up… Period?, October 16, 2015

Home Sweet Home: Who Gets the Marital Residence in a Mississippi Divorce?, April 2, 2015

Personal Injury Awards and Property Division in Mississippi Divorce, January 7, 2015

The post Factors in Mississippi Alimony and Property Division appeared first on Mississippi Family Lawyer Blog.

In the past, claims of spousal domestic abuse needed to be corroborated to be established, but there was no clear standard to be met with that corroboration. Under this new amendment, spousal abuse can be established by the reliable testimony of one credible witness, who may be the abused spouse themselves. The witness may testify that the spouse attempted to cause bodily injury to the victim, purposely, knowingly or recklessly succeeded in causing that harm to the victim, or that the spouse attempted by physical menace to put the victim in fear of imminent bodily harm. Cruel and inhuman treatment may also include behavior such as threats, emotional or verbal abuse, sexual abuse, or stalking. Evidence of habitual cruel and inhuman treatment must be established by the “preponderance of the evidence.” Mitchell v. Mitchell, 823 So.2d 568 (2002). This simply means “more likely than not,” or 51% likely to have happened.

The word “habitual” being in the statute may seem like domestic violence must happen multiple times to be pursued as a ground for divorce, however Mississippi case law shows that this is not always true. While generally it is true that habitual cruel and inhuman treatment must be shown to be “habitual,” one incident may be of such a violent nature that it may endanger the life of the victim, and may be enough to show habitual cruel and inhuman treatment. White v. White, 208 So.3d 587 (2016). Many instances of domestic violence probably rise to this level of seriousness, and therefore abused spouses should not be deterred by the word “habitual” being in the language of the law.

The post THE NEW AGE OF DIVORCE IN MISSISSIPPI appeared first on Mississippi Family Lawyer Blog.

The husband owned a bail bonding business, and the wife worked as an admissions registrar. She also worked as an office manager at her husband’s bail bonding business. She owned a home in Vicksburg when the couple married. It had two mortgages and was worth $100,000. The husband also owned a home before and during the marriage, which was located in Vicksburg, owned without a mortgage, and worth $46,120. The couple lived at the wife’s property, and she quitclaimed her interest in that property to her husband.

The couple wanted to get money to build their marital home, so they refinanced what had been the wife’s property, and the husband paid off the second mortgage. They sold it for $100,000 and got a $50,000 loan on the other property, and with those proceeds they built their marital home. That home was valued at $380,000 and had a mortgage balance of $180,000. The husband held title to the property, but it was the marital residence until the couple decided to divorce. The couple also built a house nearby that was valued at $226,300. They paid in full for the home, and the husband took title. They also bought different cars and had marital debt of $279,749.61 when they decided to divorce.

The couple didn’t get along during the divorce, and the wife was routinely kicked out of the marital home. The husband threw her belongings out of the house. She testified at trial that her husband had choked and struck her, which caused a black eye. Her husband denied this. However, there was also an incident involving an argument about dinner at which the wife, her mother, and her sister heard the husband go upstairs and click or cock a gun. The husband denied this, and his son backed him up. The police were called, and the wife didn’t stay in the home that evening, based on threats from the husband. The husband later admitted he served her with an eviction notice and claimed to be her landlord and the owner of the home.

The wife filed for divorce in 2011, alleging adultery and habitual cruel and inhuman treatment. She and the husband had filed prior divorce complaints that were dismissed. The chancellor ordered of its own volition that the husband’s complaint was dismissed with prejudice, while the wife’s counterclaim was dismissed without prejudice. At trial, the wife was awarded a divorce on the basis of habitual cruel and inhuman treatment and awarded two of the homes, plus a Lexus. The husband was awarded the marital home plus three Lexuses. They were considered equally responsible for the marital debt.

On appeal, her ex-husband argued that she hadn’t met the burden of proof to show habitual cruel and inhuman treatment and that the chancellor had made a mistake in dividing the property. He claimed that the facts put forward by the wife weren’t bad enough to be considered habitual cruel and inhuman treatment.

The appellate court explained that to prove cruel and inhuman treatment, the wife had to show actions that either endangered life, limb, or health or created a reasonable apprehension of danger, such that the relationship was unsafe for the party asking for relief or else was so unnatural as to make the marriage revolting to the non-offending partner. The actions had to be done for so long or so frequently that their recurrence could be reasonably expected. Usually, it needs to be systematic and continuous, but even one violent incident can be a basis for divorce if it is shown by a preponderance of the evidence.

The chancellor in this case had found that the husband’s actions were habitually mean and heartless, and as a pattern they amounted to cruelty. She noted that he’d been nonchalant about the black eye while denying it and claiming he didn’t know how she got it. The appellate court deferred to the chancellor’s judgment as to witness credibility on the gun issue. It found there was enough evidence to support the claim of habitual cruel and inhuman treatment. It also affirmed the property division.

For a free consultation, contact attorney M. Devin Whitt, a experienced Mississippi divorce attorney practicing in Jackson, Mississippi and all surrounding areas such as Madison, Canton, Ridgeland, Brandon, Jackson, Clinton, Byram, Raymond, Edwards, Utica, Terry, Bolton, Learned, Pearl, Richland, Flowood, Florence, Pelahatchie, or any other city in Mississippi. When divorcing, it is important to secure knowledgeable legal advice so that your divorce is valid, and you can protect your best interests in connection with matters such as alimony, child custody, and property division. Contact the Law Office of M. Devin Whitt for a free consultation at 601-607-5055.

More Blog Posts:

Mississippi Divorce Statute: A Cooling Off.. Or Heating Things Up… Period?, October 16, 2015

Home Sweet Home: Who Gets the Marital Residence in a Mississippi Divorce?, April 2, 2015

Personal Injury Awards and Property Division in Mississippi Divorce, January 7, 2015

The post What Is Habitual Cruel and Inhuman Treatment in a Mississippi Divorce? appeared first on Mississippi Family Lawyer Blog.

If either party refuses to accept the terms demanded by the other party and refuses to allow the court to choose for them, the only other option is to sue for divorce.  This involves alleging a fault-based ground on the other party of which this party may admit or challenge these allegations of fault.  If both parties can agree to and consent to wanting the divorce, an irreconcilable differences divorce may be your best bet.

Mississippi Code Section 93-5-2 (3) pertains to consent agreements for irreconcilable differences divorces and provides the following:

(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such 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…Mississippi Code Section 93-5-2 (3)

Once the final judgment has been entered, the agreement to divorce is valid and standing. The withdrawal of a party’s prior consent to the agreement must occur before the final judgment is entered.  It is simply too late to withdraw or expunge the required consent once the final judgment has been entered by the court. As long as the consent has not been revoked as of the day the chancellor considers the issues and signs the judgment, the divorce is valid and final.

In summation, consent (or lack thereof) is a word that plays a role in both validating a marriage, invalidating a marriage, and in validating a divorce.  As discussed above, consent of just one party is not enough.  Consent is required by both parties for a marriage to be valid. And consent is required by both parties for an ID divorce to be valid. On the same token, lack of consent for either marriage or divorce, makes the marriage or divorce invalid.  For example, if it is shown that one party was mentally unable to consent to marriage or divorce, then the marriage agreement or divorce agreement is invalid and unenforceable.  If a party does not willingly and knowingly consent to marry, there is no marriage; likewise, if a party does not willingly and knowingly consent to an ID divorce, there is no ID divorce.

Even if you and your spouse feel you both have “consented” to the divorce, it is always a good idea to have an experienced divorce attorney on your side.  As often what begins as a “consensual divorce” or an agreed divoce quickly turns into contested divorce or it remains an ID divorce later to find it is not valid because all of the elements required were not met.

For a free consultation, contact M. Devin Whitt, an experienced Mississippi divorce attorney.  As an experienced divorce and family law attorney practicing in Jackson, Mississippi, I can offer you the advice you need and help you make sure that the required elements, such as consent, are covered for your divorce to be valid.  Contact the Law Office of M. Devin Whitt for a free consultation at 601-607-5055 for a free consultation.

The post Mississippi Irreconcilable Differences Divorce Requires Consent From Both Parties appeared first on Mississippi Family Lawyer Blog.

There is one no-fault ground for divorce, which is irreconcilable differences. This just means that a couple isn’t able to get along, and there’s no chance they’ll get back together. Spouses trying to get a divorce on no-fault grounds need to agree to divorce on the basis of irreconcilable differences. In Mississippi, if one of the spouses refuses to divorce on that basis, the spouse seeking a divorce must prove one of the fault grounds.

Recently, the Mississippi Senate passed a bill including a few new fault grounds for divorce. If the Mississippi House agrees, domestic violence and separation will be added to the list of fault grounds.

Another bill adding fault grounds was discussed in detail in 2016. Many people had concerns about the grounds. It would have added a 13th ground for divorce of one or more instances of domestic violence proven by clear and convincing evidence. That law included a definition of domestic violence as being an intentional act in which the perpetrator seriously injures the spouse or tries to cause serious injury to the spouse. Serious injuries were defined as those involving disfigurement, loss of function, extreme physical pain, or substantial risk of death.

The 14th ground would have been willful and continued separation when the parties don’t live together or intend to come back to the marriage for at least two years. Sen. Angela Turner, D-West Point didn’t like the 14th ground for separation, expressing that she thought people should stay married. She killed the bill.

This year, Senator Sally Doty presented the bill. This time around, domestic violence was added to the existing ground of cruel and inhuman treatment. The cruel and inhuman treatment ground was amended to say “cruel and inhuman treatment including spousal domestic abuse” The longer explanation defining what counts as domestic violence was stricken. The bill passed 51-0.

Willful and continued separation without living together and with the intent not to go back and resume the marriage for at least a year, and only when there are no children of the marriage who are less than 20 years old, became the 13th ground for a fault divorce.

When determining whether to award alimony, Mississippi judges have latitude to consider 12 different factors, including either spouse’s fault or misconduct. Alimony cannot be used as a sanction for any of the fault grounds, but the court is supposed to consider whether misconduct or fault has happened. The new bill, if passed by the House, would allow judges to consider domestic violence and separation when determining whether to award alimony.

For a free consultation, contact M. Devin Whitt, a qualified Mississippi divorce attorney practicing in Jackson. When divorcing, it is important to secure knowledgeable legal advice so that your divorce is valid, and you can protect your best interests in connection with matters such as alimony, child custody, and property division. Contact the Law Office of M. Devin Whitt for a free consultation at 601-607-5055.

More Blog Posts

Mississippi Divorce Statute: A Cooling Off.. Or Heating Things Up… Period?, October 16, 2015

Home Sweet Home: Who Gets the Marital Residence in a Mississippi Divorce?, April 2, 2015

Personal Injury Awards and Property Division in Mississippi Divorce, January 7, 2015

The post New Fault Grounds Bill Passes in the Mississippi Senate appeared first on Mississippi Family Lawyer Blog.

Irreconcilable Differences, also known as an “ID” or “no fault” divorce can be less stressful, less costly, and faster than a fault based divorce. The parties in an ID divorce must agree to the terms as set out in a property settlement agreement outlining the division of their debts and assets and a custody agreement if there are children involved.

But unfortunately, if you are wanting a divorce granted in the state of Mississippi, you will have to ride it out for at least sixty (60) days according to Miss. Code section 93-5-2 (4) which states: Divorce on ground of irreconcilable differences: Complaints for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before the Judgment is entered.

Why would a state require such a long waiting period to grant a divorce if both parties agree that they no longer want to be married to each other? Ironically, there is an expectation of the possibility that during this time, the couple may manage to come to a level-headed and non-confrontational agreement or, better yet, work things out off after having this “cool down” period.

Unfortunately, however, this is not the usual or most common outcome. Instead, during this sixty (60) day period of so-called “cooling off,” things tend to get more heated with both husband and wife fighting over who gets what.

Thus even though the parties may agree to a divorce on the grounds of irreconcilable differences, it may not be so easy to agree to the division of their debts and assets and/or the custody arrangement for the children. It is during this sixty (60) day waiting period that these issued can be negotiated and worked through with the help of an experienced attorney

Your best bet is to hire an attorney to have on board from the onset. An attorney can help you navigate when the waters of divorce become murky; when what started as a simple “agreed to” ID divorce has now turned into a sour battle.

An attorney can help make sure you get what is rightfully yours from the marriage such as financial support, minimize financial obligations, sort through debt and assets, and make sure your children are treated fairly.

If you are considering filing for divorce, even an ID divorce, it may be wise to contact an attorney first. Once the trigger has been pulled, there will be an equal and opposite reaction….even in an ID divorce. Be ready to protect yourself by hiring a qualified Mississippi divorce attorney experienced in protecting your assets, your livelihood, and the livelihood of your children.

As an experienced divorce and family law attorney practicing in Jackson, Mississippi, I can help you manage any issues that may arise in your divorce and the time it takes to get a Judgment. Please contact the Law Office of M. Devin Whitt for a free consultation at 601-607-5055 for a free consultation.

The post Mississippi Divorce Statute: A Cooling Off….Or Heating Things Up….Period? appeared first on Mississippi Family Lawyer Blog.

“Wasteful dissipation is, by definition, ‘to indulge in extravagant pursuit of pleasure.'” Lowrey v. Lowrey, 25 So. 3d 274, 293 (Miss. 2009) (citing Webster’s II New College Dictionary 330 (1995)). Wasteful dissipation may occur during the marriage–typically in the time leading up to, or during, a period of separation–or while a divorce is pending. Accordingly, wasteful dissipation of marital assets is a prime consideration in both property division and alimony determinations in Mississippi. See Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994); Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). Remember, alimony–or post-marital spousal support–is only awarded to balance the scales of fairness between the spouses following property division. Williamson v. Williamson, 81 So. 3d 262, 274 (Miss. Ct. App. 2012) (finding error where the lower court considered alimony prior to property division). So, the overarching purpose of examining any waste of marital assets is to ensure that one spouse has not inequitably wasted property that the other spouse would have been entitled to in a divorce.

Further, in Mississippi, perhaps the most recognizable and complained-about form of wasteful dissipation is one spouse’s gambling of marital assets, especially gambling with money from a joint, marital bank account. See e.g., Lowrey, 25 So. 3d at 288-91 (Miss. 2009); Craft v. Craft, 825 So. 2d 605, 611 (Miss. 2002); Smith v. Smith, 90 So. 3d 1259, 1269 (Miss. Ct. App. 2011); LaRue v. LaRue, 969 So. 2d 99 (Miss. Ct. App. 2007). Though, when examining whether wasteful dissipation has occurred, Mississippi courts have considered several things from one spouse’s failure to pay bills that led to larger amounts of marital debt, to a spouse’s frivolous spending habits, to a spouse’s liquidation or selling off of marital property on the eve of divorce, to physically damaged marital furniture resulting from one spouse’s rage-filled misconduct. See generally Dunaway v. Dunaway, 749 So. 2d 1112 (Miss. Ct. App. 1999); Wolfe v. Wolfe, 766 So. 2d 123 (Miss. Ct. App. 2000); Doyle v. Doyle, 55 So. 3d 1097, 1106-07 (Miss. Ct. App. 2010).

But to be clear, the courts have emphasized that the “. . . the legitimate spending of marital assets is not wasteful dissipation of marital assets.” Rodriguez v. Rodriguez, 2 So. 3d 720, 726 (Miss. Ct. App. 2009) (citations omitted). And more recently, the Mississippi Court of Appeals seemingly favored the approach taken by Indiana courts in assessing whether any given marital or post-marital expenditure of marital assets qualifies as wasteful dissipation. Smith, 90 So. 3d at 1268-69. The Indiana approach calls for the court to consider:

(1) whether the expenditure benefit[t]ed the marriage or was made for a purpose entirely unrelated to the marriage;
(2) the timing of the transaction;
(3) whether the expenditure was excessive or de minimis; and (4) whether the dissipating party intended to hide, deplete, or divert the marital assets.

Id. (citing Thompson v. Thompson, 811 N.E.2d 888, 915 (Ind. Ct. App. 2004)). Thus, under this approach, courts look not only to the expenditure itself but also to the intentions of the dissipating spouse; making it seem as though the underlying purpose for dissipation is just as important as the act itself. Id.

In the end, the advice is always the same: do not unnecessarily waste marital assets and do not adopt an “if I can’t have it, no one can” attitude. It is can be very difficult and unpleasant for a spouse to have to explain his or her wasteful dissipation of martial assets to a Chancellor. Because Mississippi courts seek to make divorce as fair as possible, unnecessarily wasting marital assets is seen as unfair and a dissipating spouse can pay the price for it in a divorce. Nevertheless, whether you are seeking to recover for a spouse’s wasteful dissipation or defend against such a claim, it is always important to seek help from an experienced Mississippi divorce attorney. If you or someone you know in the Jackson or Madison, Rankin, or Hinds County area needs professional assistance in a divorce or other family law matter, please call the Law Office of M. Devin Whitt for free consultation at (601) 607-5055.

The post Wasting Marital Assets is a No-No in Mississippi appeared first on Mississippi Family Lawyer Blog.

As a general rule in Mississippi, a chancellor “cannot divest a spouse of title to property [such as the marital home], thereby forcing that spouse to deed such property to the other spouse.” Draper v. Draper, 627 So. 2d 302, 305 (Miss. 1993) (citing Watts v. Watts, 466 So.2d 889, 890 (Miss. 1985)). However, this rule is not absolute and Mississippi courts have carved out certain exceptions to it; for instance, “[s]uch an award [of ownership/title rather than possession] can be made where it has been agreed to by the parties, or where the property has been acquired by the joint efforts of the parties.” Id. For instance, in Brooks, the chancellor “not only awarded [] [the wife] free use of the marital home, he awarded her total ownership of the $225,000.00 marital home and all the contents therein” and the Mississippi Supreme Court affirmed the chancellor’s award. Brooks, 652 So. 2d at 1123 (emphasis in the original).

Moreover, keep in mind that a chancellor’s wide discretion allows him or her to carefully tailor such an award of the marital home to conform to principles of fairness rooted in equitable distribution. For example, in Johnson, the chancellor awarded the wife “sole use of the marital home.” Johnson, 650 So. 2d at 1284. In its discretion, the Johnson chancellor tailored its award of the marital home to the wife by granting the husband “the option of discontinuing the mortgage payments upon the children’s majority, upon granting [] [the wife] all equity in the property.” Id. Thus, the husband was ordered to pay the monthly mortgage “together with all taxes and [homeowner’s] insurance” for the period of time until the children attained the age of majority, and at that time, the husband had the option to (1) continue making the house note payments or (2) forfeit/deed his interest in the marital home to the wife and terminate his future liability on the house note, effectively transferring the monthly house note payment obligation onto the wife. Id. The Johnson case is a great illustration of the discretion that chancery courts are endowed with and the ingenuity they are capable of in awarding the marital home to either spouse in a divorce.

The existence of children and/or one spouse’s emotional attachment to the marital home can be a factor in who gets the house in a divorce. To the existence of children as a factor in awarding the marital home, there is a common misconception that the spouse awarded custody in a divorce is always entitled to possession of the marital home as well. The Mississippi Supreme Court has explained that “as a general rule it is better to award possession of the marital residence to the party who is given custody of the children,” but such a general rule “is not, however, nor should it be, a rigid rule requiring adherence in every case. There are times when such a rule should be strongly emphasized, as just as patently there may be times when it is not so important.” Boykin, 445 So. 2d at 538-39; see also Hankins v. Hankins, 729 So. 2d 1283, 1287 (Miss. 1999). Giving great deference to the chancellor’s discretion in hearing all the evidence provided at trial, in Boykin, the Mississippi Supreme Court affirmed the chancellor’s award of possession of the marital home to the wife until she remarried or moved, even though the former husband was awarded custody of the parties’ child. Boykin, 445 So. 2d at 538-39. Thus, there is no guarantee that the spouse awarded custody of the children will also be awarded the marital home in a divorce case. And regarding a spouse’s emotional attachment to the marital home, in Sandlin, the Mississippi Court of Appeals found that the chancellor’s award of the marital home to the wife was proper despite the fact that the wife’s adulterous conduct caused the divorce. Sandlin v. Sandlin, 906 So. 2d 39 (Miss. Ct. App. 2004). The Sandlin court reasoned that awarding the marital home to the wife was fair because she (1) maintained the home during the marriage, and (2) was more emotionally attached to it because it was located near many of her family members’ residences and was once her grandparents’ property. Id.

Ultimately, many people going through a divorce place great emphasis on wanting to retain the marital home; and rightfully so. In fact, many of my clients make it priority or main objective in their divorce. But what many people fail to realize is that the chancellor in Mississippi has the ultimate discretion to determine who gets the house. In any event, if you seek to retain possession of the marital home in a divorce, you should have a good reason and the financial means to do so. More importantly, you should have an experienced Mississippi divorce attorney to advise you on the pros and cons of such an endeavor and take you step-by-step through the process. If you or someone you know needs professional assistance in a divorce or other family law matter, please call the Law Office of M. Devin Whitt for free consultation at (601) 607-5055.

The post Home Sweet Home: Who Gets the Marital Residence in a Mississippi Divorce? appeared first on Mississippi Family Lawyer Blog.

Most often the biggest point of contention when a statute of limitations issue arises rests upon when the claim or action “accrued,” or when the statutory period began to run on a given claim. Generally, the statute of limitations on monetary divorce judgments begins to run when the right to payment becomes vested, or became due. Moseley v. Smith, No. 2013-CA-01205-COA, 2014 WL 6756280 (Miss. Ct. App. Dec. 2, 2014). Regarding alimony and child support judgments, where a payor spouse fails to pay and a given payment becomes past due, each individual, periodic payment of alimony or child support triggers the statute of limitations. Thus, the right to alimony or child support does not vest when a judgment is entered, but only when a given payment becomes past due. In other words, each past due payment of alimony or child support gives rise to an individual right to enforce that payment for seven years from the date payment was due to the payee spouse.

Similarly, property settlement agreements or judgments are enforceable seven years from the date the right to enforce the agreement vests; usually from the time the agreement is breached by a former spouse. Id. at *6. For example, in Smith, the parties entered into a property settlement agreement as a result of an irreconcilable differences divorce judgment, whereby the husband agreed “to hold his ex-wife . . . harmless for any debt associated with their 1998 Chevy Camaro, which [the husband] got to keep.” Id. at *1. Sometime following the divorce, the husband filed for bankruptcy and the debt associated with the Camaro was discharged as to the husband; as a result, the creditor then pursued to collect on the outstanding debt from the ex-wife. Id. As a result, the ex-wife sought to enforce the hold-harmless provision in the property settlement agreement against her former husband. Id. The Mississippi Supreme Court found that the seven year statute of limitations for domestic judgments–rather than the three year statute of limitations for contracts–applied to the wife’s claim to enforce the hold-harmless provision. Id.

In sum, it is crucial that a person not sit on his or her rights to enforce any judgment–especially a divorce judgment. In Mississippi, if a person waits more than seven years to enforce a divorce judgment, a court will not allow that person to enforce his or her rights. Nevertheless, it is critical to consult an experienced Mississippi divorce and family attorney when faced with the issue of enforcing a divorce judgment. If you or a friend needs professional assistance in enforcing a divorce judgment or any other family law matter, please call the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.

The post You Snooze You Lose: Do Not Wait to Enforce or Collect on Divorce Judgments appeared first on Mississippi Family Lawyer Blog.

After the court determines that a party is entitled to attorney’s fees because of an inability to pay, then it must consider the amount that should be awarded. Mississippi courts apply the McKee factors when determining the “reasonable” amount of attorney’s fees that a party is entitled to, or vice versa, the amount the other party should be required to pay. See McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). Under McKee, our courts consider the following:

[1] the relative financial ability of the parties, [2] the skill and standing of the attorney employed, [3] the nature of the case and novelty and difficulty of the questions at issue, as well as [4] the degree of responsibility involved in the management of the cause, [5] the time and labor required, the usual and customary charge in the community, and [6] the preclusion of other employment by the attorney due to the acceptance of the case.

Id. Evident from McKee is that consideration of the relative worth of the parties, standing alone, is insufficient. Wells v. Wells, 800 So. 2d 1239, 1246 (Miss. Ct. App. 2001).

In sum, if a party is able to pay his or her attorney, then he or she cannot be awarded attorney’s fees in divorce cases. But if a party is not able to do so and the court does award attorney’s fees, such an award must reasonable under McKee; otherwise a party can effectively challenge or appeal the award in another court. Nonetheless, a person contemplating divorce should not overlook the costs associated with Mississippi divorces, especially potential attorney’s fees. Seeking the help of an experienced Mississippi divorce attorney is always beneficial when contemplating divorce. If you or a friend needs professional assistance in a divorce or any other family law matter, please call the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.

The post Awarding Attorney’s Fees in Mississippi Divorces appeared first on Mississippi Family Lawyer Blog.