In the no-fault (irreconcilable differences) divorce, the parties usually agree to all the terms of the divorce: first, to get a divorce, then custody of children (if any) which often involves “joint” legal custody (i.e., the parties consult on important matters concerning the child(ren), such as medical care and schooling, among other decisions that must be made); child support , alimony (if any) and division of property.
Besides agreeing on the divorce, the parties can submit issues they can’t agree on to the judge.
In the uncontested fault divorce, one spouse is usually absent and can’t be found or won’t agree to sign off on a no-fault, but won’t contest it (show up in court) and the wife or husband can file for a fault divorce, serve papers on the absent spouse (or publish a notice in the newspaper) and then, in due course, appear before a judge, tell their story and ask the judge to grant the divorce, which he/she usually does.
Then we get to the contested divorce. Here, the parties may agree to some matters in splitting the sheets, but often they agree to nothing.
Grounds for divorce (habitual cruel & inhuman treatment, adultery, desertion, habitual drunkenness, drug abuse, etc.) must be proven in court and then the court goes about the business of who gets the kids (if any), visitation, child support, alimony and division of property. This is true whether the parties are of modest means or of very substantial worth.
In the high-asset divorce, obviously the stakes are higher when it comes to dividing up property acquired during the marriage or increases in value of property brought into the marriage (such as profitability of a business).
People of high net worth sometimes enter into a pre-nuptial agreement. These agreements are enforceable in Mississippi if entered into voluntarily, full disclosure of assets is made, the agreement must is fair in the execution and it is not unconscionable. Quite a bit of “discretion” in the hands of the judge (known as the “Chancellor” in Mississippi), right? You bet.
I’ve always said that a Chancellor is “more powerful than a locomotive” (though I’ve never seen one jump a tall building). So what does all this mean if you have a pre-nup agreement?
Well, first of all, pre-nups usually come about when one party, before the marriage, wants a pre-nup and asks the other to sign it.
Probably the most famous case where a pre-nup would have been useful was when Anna Nicole Smith, at age 26, married oil billionaire J. Howard Marshall, who was 89 at the time and died the next year, leaving a will but leaving Anna Nicole out. Anna Nicole battled Marshall’s son through the courts for over a decade, finally losing, but by the time the case was finally resolved both were dead.
In the high-asset divorce, if there’s a pre-nuptial agreement that one party, in hindsight, doesn’t like—then you can bet the validity of the agreement will be the subject of litigation, with the “disadvantaged” party asking the court to nullify the agreement.
As a matter of the order of proof in a case, once the bridge of attempting establishing fault on the part of one party has been crossed, then the proof in the case next turns to the validity of the pre-nup and good practice on the part of the court would seem to dictate that it determine that issue(by bi-furcation of the trial) hearing often lengthy testimony and proof concerning marital assets and their “equitable” division.