Desertion is one of the statutory fault grounds for divorce in Mississippi. While it is actually one of the lesser used grounds for divorce in this state, it is probably the fault ground that is most misunderstood by laypersons. One of the prevailing misconceptions about this fault ground that I frequently hear when clients come to see me goes something like this, "Our marriage is over, but I know I am not supposed to leave the house because that is desertion, right?" Wrong. That is not desertion. The simple act of leaving the marital home will not provide your spouse with grounds for a divorce based on desertion. Let's take a closer look at what the law says desertion is.
Desertion as defined in the statute is, "Willful, continued and obstinate desertion for the space of one year."
In order to prove desertion a plaintiff must show:
1) The defendant has been absent for one year
2) The defendant Intended to abandon the marriage
3) The plaintiff did not consent to the separation
The space of one year must be continuous. A good faith-offer to reconcile by the deserting spouse interrupts the one-year, effectively restarting the clock at zero.
Interestingly enough, a rejection of a deserting spouse's good-faith offer to reconcile by the deserted spouse could ultimately provide grounds for a divorce for desertion for the spouse that originally abandoned the marriage. So if a wife initially leaves the marital home, intending to abandon the marriage and without the consent of her husband, but after 6 months she offers to reconcile in good-faith (no outrageous demands for her return) but her husband rejects her offer - twelve months later she could potentially sue him for desertion.
Additionally, a spouse's absence must be due to an intent to abandon the marriage - an agreed upon separation by itself will not constitute desertion, absent a later rejected offer to reconcile. Also, legitimate absences such as for work will not be considered desertion if there was no intent to abandon the marriage.
While desertion may be one of the lesser used grounds for divorce, there are still plenty of cases that qualify. If your spouse has fled the marital home, contact a divorce and family law attorney to discuss your options.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area.
You can reach him at (601)-707-8953 or jtd@jonathantday.com.
Visitation
In Mississippi, if one parent is awarded primary physical custody of the kids the noncustodial parent is entitled to substantial and unrestricted visitation with them - including overnight visits, holidays, and extended visits in the summer when the kids are out of school. The noncustodial parent has decision making authority when the kids are visiting.
The "standard" visitation schedule has the kids with the noncustodial parent every-other weekend, alternating holidays, and for five weeks in the summer. Because visitation should be unrestricted and substantial in all but unusual circumstances, Mississippi courts have been quick to reverse visitation orders that gave the noncustodial parent less visitation than the standard. For example, visitation orders providing for less than two weekends per month, no summer visitation, or only a week of summer visitation have all been reversed.
Of course if the circumstances of the parties make the standard visitation unduly difficult or impossible, alternative visitation arrangements can be made. In such situations, visits that are less frequent, but longer in duration, may be more appropriate than the standard, every-other weekend, schedule. Unusual work schedules or distance may dictate such an alternative visitation schedule. For example, if a custodial mother lived in Southaven and the noncustodial father lived in Biloxi, an alternative visitation arrangement that provided for the kids to be with the father for additional weeks in the summer and alternating holidays would likely make more sense than the standard visitation schedule.
Liberal visitation is the right of the noncustodial parent and restrictions on visitation should only be considered if the visitation is harmful to child. Abusive behavior, abuse of drugs or alcohol, and mental illness are all circumstances that could lead to restrictions on visitation. Visitation schedules can be altered if the current arrangement is not working.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area. You can reach him at (601)-707-8953 or jtd@jonathantday.com.
The "standard" visitation schedule has the kids with the noncustodial parent every-other weekend, alternating holidays, and for five weeks in the summer. Because visitation should be unrestricted and substantial in all but unusual circumstances, Mississippi courts have been quick to reverse visitation orders that gave the noncustodial parent less visitation than the standard. For example, visitation orders providing for less than two weekends per month, no summer visitation, or only a week of summer visitation have all been reversed.
Of course if the circumstances of the parties make the standard visitation unduly difficult or impossible, alternative visitation arrangements can be made. In such situations, visits that are less frequent, but longer in duration, may be more appropriate than the standard, every-other weekend, schedule. Unusual work schedules or distance may dictate such an alternative visitation schedule. For example, if a custodial mother lived in Southaven and the noncustodial father lived in Biloxi, an alternative visitation arrangement that provided for the kids to be with the father for additional weeks in the summer and alternating holidays would likely make more sense than the standard visitation schedule.
Liberal visitation is the right of the noncustodial parent and restrictions on visitation should only be considered if the visitation is harmful to child. Abusive behavior, abuse of drugs or alcohol, and mental illness are all circumstances that could lead to restrictions on visitation. Visitation schedules can be altered if the current arrangement is not working.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area. You can reach him at (601)-707-8953 or jtd@jonathantday.com.
Top Reasons Divorce Negotiations Breakdown
As we previously discussed, it is very common for negotiations to break down. Even "unconcontested" divorces often have a few kinks to work out before everything is finalized and filed. Here are several reasons that negotiations breakdown:
- Desire to Punish. Sometimes settling a divorce case, especially when one party may be more "at fault" than another, can feel like letting the bad guy off the hook. In these cases, as a settlement is imminent, the aggrieved spouse may feel that they are letting their spouse off too easy and walk away from the table.
- Fear. Fear of change. Fear of a different future. Fear can be a powerful motivator to act. For better or worse the divorce process is the last act that a couple will do as husband and wife - and once it's over, so is the relationship. Fear of the unknown can keep a party fighting to avoid confronting the scary new reality of starting your life anew post-marriage.
- Desire to Punish. Sometimes settling a divorce case, especially when one party may be more "at fault" than another, can feel like letting the bad guy off the hook. In these cases, as a settlement is imminent, the aggrieved spouse may feel that they are letting their spouse off too easy and walk away from the table.
- Fear. Fear of change. Fear of a different future. Fear can be a powerful motivator to act. For better or worse the divorce process is the last act that a couple will do as husband and wife - and once it's over, so is the relationship. Fear of the unknown can keep a party fighting to avoid confronting the scary new reality of starting your life anew post-marriage.
- The Parties Are In Different Places Emotionally. Some of the most difficult divorces, and frequently the nastiest, are the ones where one person began to emotionally withdraw and prepare for separation for an extended period leading up to a divorce, but kept these feelings to themselves, and the other person is blindsided when their spouse tells them they want out. The person wanting out has already made up their mind and is ready to exit the marriage, while the blindsided spouse is trying to regain their wits amidst a divorce proceeding that they didn't want or weren't prepared for.
- Emotions Rule. Divorce is an emotional life-changing event. It can be very difficult to think about separating marital assets when one is still grieving the end of their marriage. Thinking rationally or logically about one's long-term financial and familial best interests is hard when struggling with the pain of a failed relationship.
- Opposing Counsel. Some lawyers like to be bombastic and confrontational, thinking that such showmanship will win them favor with their clients as they run up the meter through unproductive posturing and antics. No matter how hard your attorney works to be as efficient and time-sensitive with your case as possible, opposing counsel can make such goals a lot more difficult to accomplish.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area. You can reach him at (601)-707-8953 or jtd@jonathantday.com.
Negotiations Breakdown
It's what they do. Negotiations break down. Especially early in the proceedings as both sides jockey for position and leverage. I warn you now so that you can expect it - take it in stride. A breakdown in negotiations can be tough on clients whose emotions naturally ebb and flow with the roller coaster ride of settlement talks. Prepare yourself for when our first offer is rejected, or their second (or third) counter-offer is preposterous.If you know that it is coming, you won't be surprised or shocked by it. You will be prepared.
Be prepared.
Divorce is hard - but preparation is the key to success.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area. You can reach him at (601)-707-8953 or jtd@jonathantday.com.
How to Dress for Court
As society becomes decidedly more casual, there are fewer and fewer occasions that require one to "dress up". Many men nowadays don't even own a suit, since they are so seldom required to wear one. Even traditionally conservative professions such as law and finance have succumb to the business casual trend in most parts of the country.
This is not, however, an article yearning for a suited and well-heeled yesteryear (although life would certainly seem fancier if everyone dressed like the cast of AMC's Mad Men). No, this is a post about how to dress for court.
Court, is one of the few occasions in modern life that still requires one to get "dressed up".
But pump the brakes fashionistas.
Getting dressed up for court is very different than getting dressed up for a fancy cocktail party or swanky fundraiser. Now is not the time to show off your incredible fashion sense, or how you are on top of this season's hottest trends.
Dressing for court means dressing up conservatively.
For the gents, this means a solid dark color suit, white or blue shirt, and a simple conservative necktie.
For the ladies this generally means a suit (either a pant suit or a skirted suit with hose) with a simple conservative blouse. Nothing too low cut or too short. No peep-toe shoes or stilettos.
The image below provides a pretty good example of what I am talking about:
The reason one gets dressed up for court is to show respect to the court. Rule 1.01 of the Mississippi Uniform Chancery Court Rules states that, "All proceedings in the Chancery Court...shall be conducted with due formality and in an orderly and dignified manner." This includes the way in which one dresses for court, with "due formality" and in an "orderly and dignified manner." Rule 1.01 goes on to say that, "The dignity and respect of the Court shall be preserved at all times." You can help to preserve that dignity and respect by dressing appropriately for your day in court.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area. You can reach him at (601)-707-8953 or jtd@jonathantday.com.
This is not, however, an article yearning for a suited and well-heeled yesteryear (although life would certainly seem fancier if everyone dressed like the cast of AMC's Mad Men). No, this is a post about how to dress for court.
Court, is one of the few occasions in modern life that still requires one to get "dressed up".
But pump the brakes fashionistas.
Getting dressed up for court is very different than getting dressed up for a fancy cocktail party or swanky fundraiser. Now is not the time to show off your incredible fashion sense, or how you are on top of this season's hottest trends.
Dressing for court means dressing up conservatively.
For the gents, this means a solid dark color suit, white or blue shirt, and a simple conservative necktie.
For the ladies this generally means a suit (either a pant suit or a skirted suit with hose) with a simple conservative blouse. Nothing too low cut or too short. No peep-toe shoes or stilettos.
The image below provides a pretty good example of what I am talking about:
 |
| *This is mostly a good example besides the peep-toe shoes |
The reason one gets dressed up for court is to show respect to the court. Rule 1.01 of the Mississippi Uniform Chancery Court Rules states that, "All proceedings in the Chancery Court...shall be conducted with due formality and in an orderly and dignified manner." This includes the way in which one dresses for court, with "due formality" and in an "orderly and dignified manner." Rule 1.01 goes on to say that, "The dignity and respect of the Court shall be preserved at all times." You can help to preserve that dignity and respect by dressing appropriately for your day in court.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area. You can reach him at (601)-707-8953 or jtd@jonathantday.com.
Great-Grandparents Not Entitled to Visitation
In Mississippi grandparents can seek visitation with their grandchildren through the courts. Recently the Mississippi Court of Appeals was tasked with determining whether or not such a right extended to great-grandparents.In Lott v. Alexander (handed down March 11, 2014) the court of appeals ruled that grandparent visitation does not extend to great-grandparents, because the statute - which is clear and unambiguous - does not include or address great-grandparents.
If the legislature had intended the statute to cover any persons other than grandparents they would have included such language in the statute.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area. You can reach him at (601)-707-8953 or jtd@jonathantday.com.
Business Valuation in Divorce
As we know, closely held businesses can be subject to equitable distribution in divorce. In order to ensure that any division of a business interest is equitable, an accurate evaluation is crucial - however, determining fair market value of a closely held business can be challenging. In most instances, an expert is required. The expert hired for valuing the business will usually consider a list of factors set forth by the Internal Revenue Service (IRS) in Revenue Ruling 59-60. Those factors are:
- The nature of the business and the history of the enterprise since its inception.
- The economic outlook in general and the condition and outlook of the specific industry in particular.
- The book value of the stock and the financial condition of the business.
- The earning capacity of the business.
- The dividend-paying capacity of the business.
- Goodwill* or other intangible value.
- Stock sales and the size of the clock of stock to be valued.
- Market price of similar stocks.
*Goodwill may not be valued and divided in equitable distribution in Mississippi
After reviewing the factors, the business valuation expert will apply one or more of the accepted methods of valuation. These methods of valuation generally assess value by looking at business income, business assets, and comparable sales. Common valuation methods are:
Asset-Based - this approach values a business based on the net value of its assets - equipment, inventory, accounts, real estate, etc. and can be particularly useful in valuing unprofitable businesses.
Income-Based - this approach values the business based on an estimation of a company's future earnings which is calculated through a complicated process of determining the company's "normalized" earnings and investment risk.
Market-Based - this approach determines the value of a business by basing it on the sale of a comparable business. This can be an effective way to determine fair market value when such information is available, however, with many closely held businesses, finding information on the sale of a comparable business can be difficult.
The presence of a closely held business in a divorce can drastically complicate the proceedings. As you can see, getting a business valued accurately is itself a complicated process, but one that is crucial to a truly equitable distribution of the marital estate. Additionally, complications can arise if both sides to a divorce each hire their own expert to perform a business valuation and the experts disagree. If you are facing a divorce and you or your spouse has an interest in a closely held business, it is of paramount importance that you enlist the aid of a divorce attorney to ensure that your rights are protected.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area. You can reach him at (601)-707-8953 or jtd@jonathantday.com.
Income-Based - this approach values the business based on an estimation of a company's future earnings which is calculated through a complicated process of determining the company's "normalized" earnings and investment risk.
Market-Based - this approach determines the value of a business by basing it on the sale of a comparable business. This can be an effective way to determine fair market value when such information is available, however, with many closely held businesses, finding information on the sale of a comparable business can be difficult.
The presence of a closely held business in a divorce can drastically complicate the proceedings. As you can see, getting a business valued accurately is itself a complicated process, but one that is crucial to a truly equitable distribution of the marital estate. Additionally, complications can arise if both sides to a divorce each hire their own expert to perform a business valuation and the experts disagree. If you are facing a divorce and you or your spouse has an interest in a closely held business, it is of paramount importance that you enlist the aid of a divorce attorney to ensure that your rights are protected.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area. You can reach him at (601)-707-8953 or jtd@jonathantday.com.
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