Posts Tagged ‘Grounds’

Annulments: What They Are and What They Aren’t

Monday, April 9th, 2018

An annulment is an interesting way to sever a relationship that may resemble a divorce in some regards, but is actually quite different. Our office receives many calls asking how to get an annulment, when maybe that person only has divorce to look to for relief. While a divorce severs a valid marriage, an annulment states that the marriage in question was never valid for a reason that existed at the time of the marriage. Annulments can be difficult to obtain, as there are only limited circumstances in which a Mississippi court will grant one. Time plays a factor as well, as a suit for an annulment must be brought within 6 months after the ground for annulment is or should be discovered.

Mississippi law states that a marriage is deemed valid if there is solemnization (a ceremony) and a proper license. When two people decide quickly to get married without any input or help from others, these are easy things to gloss over, especially in the rush and excitement of saying “I do.” A “marriage” with only one of these requirements met will not meet Mississippi’s standards, and therefore a marriage was never legally formed.

Of course, certain marriage even with these requirements met may not be considered valid under any circumstances, as in the case of bigamy or incest to a certain degree, and does not have to be brought within 6 months of the formation of the “marriage.” Dissolving a marriage involving either of those grounds simply requires a petition to the proper court by either of the parties along with sufficient proof. The other grounds for annulment in Mississippi are incurable impotency, adjudicated mental illness or incompetence of one or both of the parties, the parties being too young, pregnancy of the wife by another person if the husband did not know of the pregnancy, or where a party’s consent to the marriage was achieved through force or fraud. In other words, informed consent is paramount to any marriage.

As you can see from the limited grounds for annulment in Mississippi, there are many situations where an annulment is not available to the parties, and they will have to pursue a divorce to legally terminate their relationship. A common misconception that we hear is that because a marriage was short, then the parties can get an annulment instead of a divorce. While marriages that may be properly annulled by Mississippi courts are often short, the length of the marriage by itself is not enough for an annulment.

Annulments are an interesting creature of domestic relations law and can be confusing and difficult to pursue. If you believe you may have a ground for an annulment that can help you avoid a long and costly divorce, call the Law Office of Matthew S. Poole. We have experience in making the determination as to whether a marriage can be rendered moot and can be considered to have never existed, whether an annulment is a possible remedy, or whether divorce is the only avenue.

And Now We Wait – Domestic Amendment Passes Mississippi House

Sunday, March 19th, 2017

Last week, the Mississippi House passed a bill addressing domestic violence as a ground for divorce in the state, just one month removed from killing such a bill. The bill that would modify the grounds for divorce to include domestic violence passed in the Senate, but was not even voted on in the House. Representative Andy Gipson took the brunt of the criticism, largely because of his remarks that if domestic violence is occurring, the perpetrator needs “to have a change of heart” rather than be divorced from.

The specific language of the bill that was killed by the House added the words “including spousal domestic abuse” to the current Mississippi divorce ground of habitual cruel and inhuman treatment. Gipson cited the “floodgates” of divorce that would be opened with the bill’s passage as his reason for opposing the amendment. Strangely, the language of the new amendment that Gipson approved seems to extend beyond that of the bill he opposed.

The new amendment allows for a divorce to be granted when both abusive physical and non-physical conduct is taking place in a marriage. The “abusive physical conduct” section provides for a divorce for the cause of habitual cruel and inhuman treatment to be granted to the injured party when that party’s spouse has attempted to cause or has purposely, knowingly or recklessly caused bodily injury to that party. That proposed section also includes putting the injured party in fear of imminent serious bodily harm.

The “abusive non-physical conduct” section is where the new proposed amendment goes further than previous legislation. This section allows a divorce for habitual cruel and inhuman treatment to be granted where a pattern of abusive non-physical conduct such as threats, emotional or verbal abuse, forced isolation, sexual extortion, stalking, and economic financial abuse.

Several parts of this new amendment really stick out and will most likely be the catalysts for this amendment to affect change in Mississippi divorce law. For abusive physical conduct to be grounds for a divorce, the conduct must be established through the reliable testimony of one or more credible witnesses, and any of those witnesses may be the injured party. This is a huge sentence of this amendment, as the majority of domestic violence happens behind closed doors with only the two spouses present. This gives the abused spouse more ammunition than previously available to pursue a divorce.

The standards of proof also play a large part in the new changes. When reliable testimony comes from only one credible witness (who can be the injured party), the standard is clear and convincing evidence, which is the highest burden of proof used in civil courts. When that single credible witness’s testimony is corroborated by other credible physical or forensic evidence, the burden of proof lowers to preponderance of the evidence, or “more likely than not.”

Our previous article talks about some of the behavior that divorces have been granted under habitual cruel and inhuman treatment. Mississippi courts have held that this may include only one instance, and that emotional abuse can be considered enough to grant a divorce on this ground. The Mississippi case of Harmon v. Harmon involves a divorce granted for grounds similar to those described in the “abusive non-physical conduct” section of the proposed amendment. In that case, the husband exhibited stalking behavior, often appearing at the wife’s workplace and following her on lunchbreak. He also often used disparaging language toward her. The wife was granted a divorce, showing that Mississippi courts are willing to grant divorces for habitual cruel and inhuman treatment for non-physical abuse.

While the substance of the amendment will not alone provide a large change in the operation of Mississippi law when dealing with divorce, there are two huge parts that we believe will have the highest impact. The first is the provision that allows evidence of domestic violence to be offered by a single credible witness which may be the injured spouse. As mentioned before, much of domestic violence happens without witnesses other than the spouses, and allowing this evidence to come from the injured party helps abused spouses immensely.

The second and not-so-obvious benefit from this amendment is the ability it gives normal, everyday Mississippians for exploring their options. Many instances of domestic violence go unreported for any number of reasons. Often, abused spouses may not even consider speaking with an attorney out of fear that their spouse may find out, possibly leading to physical or economic abuse. Someone being abused may have had a bad experience with the legal system or just attorneys in general. There are numerous reasons people will not speak with lawyers. Not every Mississippian has access to the legal resources that attorneys do, or even the ability to read and fully understand the state’s divorce statute. If an abused spouse believes that speaking with an attorney too risky for whatever reason, explicitly including provisions regarding physical and non-physical abuse allows that person to read the statute themselves and have a better understanding of their rights.

The proposed amendment has passed in the Mississippi House, including the vote of Representative Gipson. Whether his agreement to this amendment is the result of his recent public crucifixion or a genuine belief that this amendment is more satisfactory than the one he killed is of no consequence. If this proposed amendment is voted for by the Mississippi Senate, it will become part of the divorce grounds in the state. This amendment is good for the people of Mississippi, as it provides more understanding into what our divorce law provides as well as more options to those experiencing domestic abuse.

As mentioned in our past articles, if you or anyone you know is experiencing abuse in a marriage, we encourage you to immediately seek help. Our office will be happy to help in any way we can. For help in combating abuse or any other family law problem, please call the Law Office of Matthew S. Poole at (601) 573-7429.

By Kenneth Davis, J.D. Candidate 2017.  Law Clerk to Matthew Poole. 

And There Were Still Twelve – Domestic Violence and Divorce Grounds in Mississippi

Sunday, March 5th, 2017

Recently, the Mississippi Legislature again voted against a bill that would make domestic violence the thirteenth ground for divorce in Mississippi. As to be expected, there has been large public backlash around the state regarding this decision. Much of this criticism seems to be directed at the legislature’s seeming insensitivity to the seriousness of domestic violence. While our office condemns domestic violence in every form, it is important for Mississippians to know the effects of this decision on a divorce case in the state.

There are twelve grounds for divorce in Mississippi, which are listed elsewhere on our website for your viewing. Our concern today is the ground of habitual cruel and inhuman treatment, which is the ground most likely to be at the front of a divorce where domestic violence is occurring. While domestic violence is still not explicitly a part of Mississippi divorce grounds, cruel and inhuman treatment allows abuse to be addressed by courts in the state. The phrase is vague, and has been examined through many different lenses throughout the years.

Marriage is, for lack of a better word, hard. Arguments and unpleasantness are simply parts of both marriage and life. Therefore, habitual cruel and inhuman treatment must extend beyond rudeness, unkindness, or mere incompatibility. Although the word “habitual” indicates that this behavior must be continuous or systematic, Mississippi courts have held that a single instance can provide grounds for a divorce. Kumar v. Kumar, 976 So.2d 957, 961 (Miss. Ct. App. 2008). Physical violence or even a threat of it isn’t required to show proof of cruel and inhuman treatment. Cruel and inhuman treatment can also take the form of emotional abuse, which can later lead to actual violence.

The case of Harmon v. Harmon, 141 So. 3d 37 (Miss. Ct. App. 2014) showcases less severe grounds enabling a divorce in Mississippi. In that case, a wife testified that her husband of five years regularly accused her of adultery, called her derogatory names, followed her on breaks from work, and appeared often at her place of work. Her daughter and co-workers testified to her agitated manner following his actions, and that she was experiencing suicidal thoughts as well as murderous thoughts about her husband. The husband was also a compulsive gambler. The court of appeals affirmed the grant of divorce based on habitual cruelty. This case shows that grounds much less severe than physical domestic violence can effectuate a divorce in Mississippi, and that habitual cruel and inhuman treatment is an effective ground for divorce under even minimally violent or abusive circumstances.

While the Legislature’s decision is disappointing, the twelve current grounds for divorce in Mississippi sufficiently allow for a divorce to be granted. The Legislature declining to add domestic violence as a thirteenth ground does not mean that occurrences of domestic violence cannot provide a ground for a divorce. The current statutes provide grounds for divorce in abusive scenarios, albeit under a different label. It is also important to also note that Constructive Desertion can be recognized as ground for divorce when the conduct of one spouse is subjectively ruining the ability to maintain a normal, healthy marriage.

If you or someone you know is experiencing domestic violence, our office encourages you to seek help, and to feel confident in pursuing a divorce because of that violence. Despite the number of grounds staying at twelve, Mississippians should feel confident in the professionals of the legal system, and their ability to realize when domestic violence entitles a person to a divorce.

By Kenneth Davis, J.D. Candidate 2017.  Law Clerk to Matthew Poole. 

 

 

 

 

 

 

 

 

 

 

 

 

How is a Temporary Hearing (for alimony or other expenses and potentially child custody) in a Divorce Action Different from a Final Hearing on the Merits (Trial)?

Friday, November 18th, 2016

If you and your attorney have pursued a temporary hearing in a divorce action, there are several reasons that you were counseled to go forward with that temporary hearing prior to going to a final trial on the merits of the entire case.  It is important to understand that in a divorce, a temporary hearing is a hearing that is designed to maintain the status quo between the parties prior to their ability to seek or be heard by at a final trial.  

Many people get less than fair result at a temporary hearing because of the perception that they are required to maintain the typical and enduring financial relationship between themselves and their spouse until they are able to be heard at a final hearing.  It is very important to note that there are often times occasions where a party has been placed under a temporary order to pay, for instance, temporary alimony or continue to make car payments, mortgage notes and pay other expenses of their spouse, but when the parties finally get to trial its determined that no sufficient grounds for divorce exist.  As we have already discussed many times in this blog, the typical grounds for divorce (i.e. the most common) adultery, habitual cruelty, inhumane treatment, habitual alcoholism, addiction to an opiates or other similar drugs, and desertion.  Some other grounds for divorce do exist although they are not as commonly invoked such as incurable insanity, impotency, and bigamy.

It is important that any potential client realize that even if they do get a less than favorable result at a temporary hearing, it is likely because they have been the financial bread winner/provider of the relationship since the inception of the marriage.  There are some instances where the person paying the majority of the bills can and will get a favorable result at a temporary divorce hearing.  Those would include situations where a spouse lost a job due to misconduct, is employed far below their earning capacity, or has exhibited bad faith in the failure to seek adequate employment.  Clients need not worry if they are in a position that their result at a temporary hearing was less adequate than what they seek at a final hearing.  Often times, for instance, a mortgage note will be required to be paid by the person who has paid the mortgage note for the majority of or for the duration of the marriage.  However at a final hearing on the merits, if the person seeking to remain in the marital home cannot afford the mortgage note, it is unlikely that the court will continue to require the primary wage-earner to continue to make that payment, unless it is in the form of alimony.

Alimony has been discussed at length in several of our other blogs, but it is very important to know that the American Society of Matrimonial Lawyers have made a general suggestion and therefore proposed policy that at twenty years of marriage, alimony is almost assured to be paid unto the party needing the stability and experiencing the primary financial hardship as a result of the divorce.  We have seen situations where short term marriages do result in an award of alimony; however the very bottom end of the spectrum of people to be awarded alimony would be in the six to eight year marriage range.  Remember that alimony is based primarily on need, although the courts have recently made certain modifications to the Alimony Laws that indicate that a party who is more at fault is equal to or more at fault than their spouse in the cause of divorce will not be entitled to alimony, regardless of need.

These changes have given hope to the people who have been cheated on, abused, or generally had their rights within the marital institution violated although they have been in a short term marriage.  WE agree with this shift, and feel that it represents strong public policy.  Although we think there are many benefits to this change in the common law of the State of Mississippi, many changes are probably forthcoming in terms of clarifying the courts general position on whether or not the award of alimony is appropriate.  We continually strive to be abreast of the most recent changes in Mississippi law so that our clients are given fair treatment by the courts.  

If you need help with a temporary custody, child support, or alimony hearing, or if you have been served with process or a summons, indicating that you must appear in a Chancery Court in the State of Mississippi regarding a divorce action, we are best equipped to give you the proper guidance and counsel in order to help you effectuate your rights.  Please give us a call at (601)573-7429 or send us an e-mail at matthewspoole@gmail.com.  We will be glad to discuss your case with you and determine how best to proceed.