Condonation: Forfeiting Fault Grounds Through "Forgiveness"

In Mississippi there is a little known defense to divorce called "condonation", in which an innocent spouse, after learning of marital misconduct, forfeits the ability to be granted a divorce on the basis of that misconduct by "forgiving" the offending spouse.

Let's look at an example.

A wife finds out that her husband has been carrying on an affair. She confronts him, they have a big fight, and she kicks him out of the house. Three weeks later he comes over to talk, they make up, and he moves back home. Two months go by and the wife realizes she will never be able to truly forgive her husband and meets with a divorce attorney. She wants to file for divorce based on his adultery. That likely won't work.

By "resuming the marital relationship" (continuing her sexual relationship with her husband after finding out about the affair) she may have "condoned" or forgiven his prior bad behavior. The husband can raise condonation as an affirmative defense to her complaint for divorce on the ground of adultery.

This could eliminate the wife's leverage in negotiation and potentially prevent her from being granted a divorce all together.

If you have recently found out about a spouse's adultery, it is in your best interest to contact a divorce attorney to discuss the situation and to be informed about your rights.

Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro area. He reminds you to be careful about which behaviors you're condoning.

Divorce and Therapy

Divorce is difficult. Anyone who has been through the process can attest to that. It is one of the most life-altering events that a person can experience. While attorneys are at times referred to as "counselors of law", divorce attorneys frequently have to serve as grief counselors. While I am happy to assist my clients the best that I can, I am not a professionally trained therapist. I always recommend that clients see a professional counselor or therapist during the divorce to help them process the life changing event that they are going through. A therapist can:

• Serve as an unbiased third person that can listen to all of your issues and concerns, without passing judgment.
• Respond to your concerns in the most beneficial way
• Help you transition from one life stage to the next, and help you to see the opportunities and positive attributes that change can bring.
• Help explain to your children what is going on, without emotions clouding the issue and coloring the way in which they are informed.
• Simply be someone you talk with about the various emotions you are experiencing. Sometimes it is easier to open up to a therapist than it is to a loved one.
• Help you to stay strong during this difficult time period in your life.

How to Find a Local Therapist

If your divorce attorney suggests therapy, ask them for a referral. A good divorce attorney, in anticipation of clients' needs, should have professional affiliations with several highly skilled local therapists that can help you and your family.

If you are interested in therapy but wish to keep that information private, you can do research on your own via an internet search for therapists in your area, or by searching through the phone book. Once you've found a therapist you are interested in seeing, contact them to have any questions you may have answered. Good questions to ask might be:

• What is their fee?
• Will their services be covered by your insurance?
• What are their qualifications?
• What areas do they specialize in?
• For example, if your seeking assistance with grief and processing your divorce, you probably would not need to see a therapist who specializes in addiction.
• The qualifications to look for would be a therapist with an LMFT (Licensed Marriage and Family Therapist) or an MFT (Marriage and Family Therapist). Although other specialties may also be useful depending on your individual needs.

I know that some people are resistant to the idea of therapy, but you shouldn't be. Divorce is difficult. It will be beneficial to have someone that you can talk to freely about what you are experiencing - someone who is not there to judge you, but to assist you through the process. If you are going through a divorce, please consider seeing a therapist.

New Year's Resolutions: Nourish Your Relationships

Today is new year's eve, and I am sure that many of you are considering what your resolutions for 2014 should be. While most of you will settle in on some time honored classics such as losing weight or being more spontaneous, I would encourage you to put a little more thought and a little more heart into your resolutions this year. Take stock of the most important relationships in your life: your spouse, your children, your parents, and siblings, and determine which are flourishing and which could use some attention. Make this the year that you reconnect with a parent, find common ground with your teenage child, and rekindle the spark in your marriage.

We are all busy, and it can be easy to overlook or take for granted those that actually mean the most to us. It is especially easy to fall into patterns with the people that we know the best - assuming that we know them and that they know us. Don't expect anyone to read your mind. If you feel something is wrong in a relationship - say something - let the other person know how you feel and what you need. You would be surprised by how often the other person had no idea you felt that way. People can only give you what you need if you let them know how.

So take action. Do not wait for the other person to make the first move. Take stock of your relationships, mend those that need mending, and let go of those than can not be repaired. Seek to improve your relationships and 2014 will be your best year yet.

Happy New Year!

Warnings for Individuals About to Divorce

- Do Not Date: Just because you are separated from your spouse does not mean that it is okay to begin seeing other people. You are still legally married until the final judgement of divorce is entered in your case. Beginning a relationship with someone new is still adultery. Even though divorce proceedings have begun, and you may have a temporary order in place providing for your spouse and children, you are not yet divorced. Dating could upset your spouse, causing retaliation, a breakdown in settlement negotiations, or even revocation of an agreement - which could lead to further delay and expense for you. Wait until you are divorced before you begin dating.

- Be Careful to Avoid Condonation: In Mississippi fault grounds for divorce may be deemed "forgiven" under certain circumstances. For example, if a spouse learns that her husband has cheated, but "resumes the marital relationship", the husband's conduct is considered forgiven by the offended spouse. "Resuming the marital relationship," can be understood as engaging in sexual intercourse with your spouse after learning about and having knowledge of the transgression. Condonation destroys the offended spouse's ability to claim the fault ground - so even though your spouse may have cheated, it is unlikely you will be granted a divorce for adultery.

- Social Networking: Be very careful in regards to what you post on social media. Even though you are going through a difficult time and may feel like venting on the internet - resist that urge. Do not give your spouse any easy ammunition to use against you. We highly recommend that you deactivate you social media profiles for the duration of your divorce.

- Do Not Admit Fault: When a relationship is troubled and heading toward divorce, or already proceeding through a divorce, it is not uncommon for people to apologize or admit to fault or wrongdoing. Making conciliatory gestures can be helpful when attempting to initiate productive negotiation, but admitting to damning facts, especially in writing, can serve as self-sabotage in your case.

- Avoid Confrontation: As divorce proceedings begin, be careful to avoid confrontation. Some people will attempt to bait their spouses into bad or abusive behavior in an attempt to gain the moral high ground in the divorce. Do not take the bait. Do your best to avoid confrontation. Limit your encounters with your spouse to only those that are necessary, such as dropping off children, and consider bringing a friend with you to help keep you in line. If your spouse does try to bait you into a confrontation, do not engage, remain calm, and try to leave.

- Abuse: Some relationships are abusive. Abuse may even be the reason for divorce. Take extra care to protect yourself. Abuser's may try to use verbal or physical abuse to intimidate you into staying, or may simply seek to hurt you. Avoid all contact with you spouse, especially if you are alone. If abuse does occur, go to the doctor and tell them exactly what happened to document the event. Do not lie and protect your abuser. Call the police if you ever feel in danger.

- Change Passwords: Be sure to change your passwords to email, social media sites, bank accounts, investment accounts, etc. Many married couples tend to know each others usual passwords, and if they don't they will likely know what to guess. Changing passwords is key to securing your personal assets and private communications.

- Consider Temporary Protective Orders to Protect Vulnerable Assets: Once a marriage has deteriorated to the point where divorce may be likely, it is important to secure or protect vulnerable assets. Such assets include, joint checking or savings accounts, joint investment accounts - any asset which both parties have access to that could be cleaned out by one or the other. Whether or not such protective actions are appropriate or advisable will depend on the independent circumstances of the case. Contact a divorce attorney for assessment of the situation and for advice on protecting vulnerable assets.

- Know Your Finances: If your spouse has been the money-handler/bill-payer in the marriage, it is important that you take steps to familiarize yourself with your financial situation. Understanding the types and values of marital assets can be very helpful in your divorce, and also may key you in on any hidden assets or asset shifting that your spouse may be doing in preparation for divorce.

- Update Beneficiary Information On Future Planning Documents: You should start thinking about updating beneficiary designations on wills, living trusts, advanced healthcare directives, durable powers of attorney, insurance policies, pension plans, etc. This is advice we always give clients during the closing interview once their divorce is final, but it may be a good idea to start thinking about making these changes now. Every once and awhile a story will pop up about an ex-wife receiving life insurance money over a later wife because the husband never updated the beneficiary on the policy. Don't let that be you.

- Get a Medical Exam: It is a good idea to get a medical exam. Your health can influence support awards if health issues affect your ability to work. You should not agree to a settlement agreement until you have had a medical exam and know the state of your health.

- Do Not Lie or Withhold Information From Your Attorney: We know that it is tempting to withhold what are generally considered private details from your attorney - especially those you may consider to be embarrassing or those that would reveal fault. However it is absolutely crucial that you reveal all relevant information to the attorney and answer your attorney's questions as fully and truthfully as possible. Remember that this is a safe space and we are not here to pass judgement. Keeping information from your attorney does not protect you. Your attorney needs to know all of the facts to devise the best case strategy he can to protect your interests. You do not want your attorney to hear anything for the first time when your spouse brings it up at trial.

- Do Not Talk About Your Case: Your divorce is going to be a major part of your life for months if not years. It is only natural that you would want to talk about such a large life event. I would encourage you not to. You never know what might make it back to your spouse, especially as friendships are redefined in the wake of your divorce.

- Be Careful With Tax Returns: There are a number of tax concerns people preparing for divorce should be thinking about. Keep in mind that if you file jointly, you could be liable for your spouse filing mistakenly or fraudulently. We always advise clients to meet with a CPA or tax professional about tax concerns related to their divorce.

- Counseling: It has been said that a divorce is the most emotionally difficult event that a person will experience besides the death of a loved one. It is important that you consider seeking the assistance of a counselor to help you process your divorce. Divorce is difficult. There is no need to face it alone.

Things to Know After Your Divorce

Once your divorce is final, there are still some things you should keep in mind as you move forward:

- Wills and Insurance Policies: be sure to update beneficiary information on wills, insurance policies, and any other policies or instruments which need to be made current.

- Bank Accounts and Credit Cards: make sure to update all account information and notify any companies or businesses that need to be updated.

- Modifications: child custody, support, and some forms alimony can be adjusted post-divorce if there has been a material change in circumstances. It is a good idea to touch base with your attorney at least once a year to notify him about how things are going and if circumstances have changed.

- Alimony: depending on the type of alimony you are paying, your alimony payment might be considered a taxable event - making it deductible for the payor and taxable income to the person receiving the alimony payment. Also alimony payments may be able to be modified if there is a significant change in income or expenses

- Child Support: child support lasts until each child reaches the age of majority, which in Mississippi is twenty-one. Support may also end if a child marries, becomes self-supporting, or is emancipated. Additionally, child support payments may be modified if there is a change in circumstances - such as a drastic change in income or expenses.

- Contempt: Failure of either party to comply with the divorce decree is punishable by contempt. Failure to make child support or alimony payments on time can result in a contempt action that could ultimately land the guilty party in jail. If you owe alimony or child support and are unable to pay, contact a divorce lawyer before you fall behind. Keep in mind that missed payments can not be modified or forgiven.

- Two Wrongs Don't Make a Right: The court expects both parties to comply with the divorce order. The court is less likely to come to your assistance if you have failed to comply with the order in retaliation for your  former spouse's non-compliance. So if your former spouse fails to make a support payment or an alimony payment, do not deny them visitation. Continue to comply with your obligations under the divorce order and contact your attorney about remedying the situation.

- If You Are Paying Child Support or Alimony and need to adjust your payments because of a job loss or reduction in wages: do not agree with your spouse verbally or in writing outside of court. Only the court change an order of the court, and there is a high likelihood that your out of court agreement won't hold up in court. Which may leave you on the hook for tens of thousands in unpaid support or alimony payments, even though you thought you had an agreement.

- Custody: child custody can be modified if there has been a material change in circumstances which adversely affects the child. Contact a family law attorney if the custodial parent has become physically or mentally abusive, has a problem with alcohol or drug use, or has a new live-in boyfriend or girlfriend.

- Visitation: arrangements can be changed if the current schedule is not working or if new circumstances develop - like a new job or a change to your work schedule.

- Moving: Mississippi law requires each party to file a change of address with the chancery court clerk. Moving a residence is a significant event. Failing to get a change to the court order by a custodial parent prior to moving could potentially result in a loss of custody. If you are considering a move contact your lawyer first.

- Document Everything: whether you are paying or receiving support or alimony - document everything. Having a contemporaneous  record can be a great asset if you have to return to court. Payors always pay by check, or at least get a cash receipt. Also maintaining records of expenses, such as a child's medical bills, is essential if seeking reimbursement. Additionally, keeping track of missed visitation, failure to attend a child's events, etc. can be helpful should a custody or visitation issue develop.