- Marriage counseling
- Psychological counseling of you or you and your spouse
- You or your spouse (or both) have been to rehab for a drug or alcohol problem
Nothing has worked. Time to get out. But how? Many complex questions come into play…
- How long have you been married?
- Do you have children? If so, how old are they? What will be the effect on them?
- How about your finances during the marriage?
- Do you own a home? Is there a mortgage?
- What assets have you and your spouse acquired during the marriage?
- Do you work, or are you, in the case of a wife (usually) a home-maker, giving up your career plans for the marriage, the children and your husband?
- Do you have marketable skills? How long have you been out of the job market?
- If you (the wife) work, what is the disparity between what you make and what your husband makes?
- How about pensions, IRAs, SEPPs, savings account, bonds, stocks, etc.?
- Is your husband self-employed? Does he have a business?
- Is it profitable or on the brink of bankruptcy?
From the husband’s point of view…
- How can you survive this divorce financially? What about alimony?
- What about child support if your wife gets primary custody of the children?
- How much child support will you have to pay?
- Will you have to pay for the home while she lives in it?
- How much of the savings you accumulated will she get?
- How much of your IRA, SEPP or profit sharing will she get?
- Is there a shot at you getting custody of the children? Do you want custody?
- Can you handle custody of small children and work at the same time?
These and many other questions are involved in a divorce. But really the first question to be answered is: “Can you get a divorce?”
It’s not automatic unless you and your spouse can agree to these and many other issues. You have to agree to get a “no-fault” divorce. Then you have to file a “Custody, Child Support and Property Settlement Agreement” (when children are involved) and that Agreement must be approved by the Chancery Court.
Approval is not automatic, the Chancellor has the obligation to insure that the Agreement is fair and equitable to both parties and Judge has the right to disapprove the Agreement, even if you both have agreed to it. If not approved by the Chancellor, you’re back to square one.
That’s a lot to agree upon, especially in “high asset” divorces with significant amounts of money and property involved. Sometimes it works, sometimes it doesn’t.
If it doesn’t work, then you have a contested divorce. Three main issues will have to be dealt with in the CONTESTED DIVORCE.
Mississippi Grounds for Divorce
Do you have enough proof to entitle you to a divorce? Adultery, habitual cruel and inhuman treatment, habitual drunkenness and/or drug use are common grounds. But you have to have the proof: Just going to court and claiming your spouse was unfaithful, or a drunk/drug addict, mean or abusive, is not enough.
Adultery has to be proven by “clear and convincing evidence” under MS law. Just suspicion is not enough. Of course, if the offending spouse admits to adultery to you, out of court, and disputes the admission in court or during a deposition or claims you made it up, then you’ve got to have proof.
As to habitual cruel and inhuman treatment, it can’t be one incident, or even a few, of arguments between the two of you over finances or whatever. Habitual cruel and inhuman treatment has to be a continual course of conduct lasting over a significant period of time, it takes many forms and has to endanger the health of the non-offending spouse and make the continuation of the marriage repugnant or intolerable.
Habitual drunkenness/drug also has to be proven with adequate evidence and cannot consist of just isolated incidents.
Custody of Children
How old are they? (Under MS law there is no longer a presumption that the mother is normally entitled to the custody of small children, but we all know that in the minds of the judges, mothers usually are the best “care-givers” for small children).
If you’re the husband seeking custody of small children (generally under the age of 14), then you’ll have to prove the mother unfit in some way (neglectful, alcohol/drug abuse/immorality, promiscuous behavior, etc., and many other factors). Even infidelity will not tip the scales if the wife’s infidelity doesn’t affect the welfare of the children.
If the husband cannot get custody of the children, then what visitation can the husband get in order to maintain your close ties to your children (despite the scorned wife’s attempts to turn them against you) and how will the children react to you? (Many react, “Daddy left me”, an imprint that will last the rest of their lives).
If either of you can prove grounds for a divorce…
…and the Judge grants a divorce to either of you, then the matter of the “equitable division of the marital estate” remains. Again many factors go into this determination, especially, in those cases of “high asset” divorces or even divorces between people of more moderate means.
ALL OF THIS IS TO SAY, THAT IN A CONTESTED DIVORCE YOU REALLY NEED A GOOD LAWYER. You may say, “Define “good’”. A perfectly normal question. I suggest to you that a “good divorce lawyer” is:
- Knows the law of divorce
- Knows the Judges (or can find out about them and their attitudes and possible prejudices, either for the man or the woman)
- Has the technical and procedural knowledge that comes with years of litigation experience
- Has actual litigation experience in complex cases, including divorce cases
- Knows the psychology of divorce—when to push, when to compromise, when and how to gain the tactical advantage, one who knows the opposing lawyer and his tactics and experience
- Investigates and organizes the evidence thoroughly to be completely prepared for trial (no stone unturned) and able to present it in an understandable manner to the judge to guide him/her to the desired conclusion on the facts and the law
NOW ALL OF THIS MAY SOUND A BIT OVERWHELMING, and perhaps an example of an actual case I handled will help demonstrate how all these factors come into play.
I’ll refer to my client, the Husband as “the Husband” and the wife as “the Wife” to preserve their privacy, but all of the facts related are a matter of public record.
Husband comes to me. He has been served with divorce papers by the local Deputy Sheriff at work (Wife wants to embarrass him in front of his employees). She has charged him with habitual cruel and inhuman treatment and habitual alcohol and drug abuse. He is a person of substantial means, a business owner, but his Wife works. He suspects she has been unfaithful, but he has no proof.
They have no children but she wants everything, alimony, a big chunk of his assets and a piece of the business—the “kitchen sink” in other words. Things don’t look good for him. The only thing to do at that point is to file an Answer for him denying the allegations of the suit against him and suing her for habitual cruel and inhuman treatment as well.
The case thereafter took its usual course, called “discovery,” where the parties send written questions to each other to answer – in order to find the proof each one has and the witnesses who will be called to court and documents, if any, that will be used to prove each other’s case. Then we embark on taking each parties’ depositions and go through the usual things about finances, drug and alcohol abuse, witnesses to be used, etc.
Husband admits to some alcohol and drug use but claims Wife was right in there with him. I ask the Wife about extra-marital affairs. She denies it.
Now, as the case works its way through the system, something “serendipitous” occurs. Of course, one could say this has nothing to do with good lawyering, but it has happened in two cases for me. The wife of one of the men suspected of having an affair with my client’s wife has caught her husband with my client’s wife and tells me about it. But she does not want to get involved in the divorce.
She does give me, however, information concerning other men that my client’s wife has been involved with. At this point, the Wife has denied any extra-marital affairs, under oath, in a deposition. I don’t know whether the other wives of the men she says are involved with my client’s Wife know about it.
If I take these men’s depositions, under oath, and ask them if they’ve had an affair with my client’s wife, I have no idea what they will say, as I have no proof other than my informant. I decide not to take the men’s depositions who are alleged to have been involved with my client’s Wife. It was a calculated risk. I have an alternate plan.
The case is set for trial. We appear in court and announce ready for trial, but the judge wants me and the other lawyer to confer and try to reach a settlement. For the trial, I have subpoenaed all the men (and there are several) whom my informant told me may have been involved with my client’s Wife, and they are standing outside the courtroom waiting to be called as witnesses.
I have no idea what they will actually say when I put them on the stand, but I believe that they were, or at least some of them, involved with my client’s Wife. And I also believe that when push comes to shove, under oath, under penalty of perjury, at least some of them will admit to the affairs.
In discussing settlement with the Wife’s attorney (who I know is a very upright, if not to say uptight, kind of guy, but still very competent) I know the men standing outside the courtroom will have an effect on him and his client, the Wife.
I can tell she is very upset when she comes to court, so that lends me to believe I am on the right track. I believe that she will not want all this evidence of her contacts with these other men revealed and perhaps ruin their marriages (it does so for several anyway, since their wives get suspicious about the subpoenas to this divorce trial and force confessions out of them).
The Wife folds. We do a “no-fault” divorce with the financial terms very favorable to my client.
This case is just one scenario of a contested divorce. Every case is different, just as every person is different. In the contested divorce, your attorney must be able to bring to bear the highest and best skills an attorney can marshal for his client in order to get the best possible outcome.
Knowledge, skill and experience make a difference.