Divorce Court vs. Criminal Court

Sometimes divorcing parties act like criminals, but Divorce Court is NOT Criminal Court (typically).

Divorce court, a.k.a. Chancery Court, is a civil court. The Court’s function is to legally divorce parties that are entitled to be divorced and divide property. The Court has the authority to deal with and punish conduct that is violative of its Orders or disruptive conduct that occurs directly in its presence. Other than those instances it is not a punitive Court. You typically are not punished for marital fault…

Criminal court, which can be Circuit, County, Municipal, or Justice, among others, can punish. These Courts have prosecutors whose job is to prove the accused committed a crime/violated a law. The Judge or a jury determines if the matter was proven and a punishment, including; incarceration, fines, and other remedies.

However, sometimes these can relate or overlap. Conduct that could serve as grounds for divorce, such as domestic violence, is also a crime. The Court’s are independent of one another and you can be punished in Criminal Court and divorced in Chancery Court over the same facts.

Interestingly, your right to plead the fifth, invoking the Fifth Amendment to the Constitution can be done in both Courts. While it cannot be used against you in Criminal Court, it can be used to make an adverse inference in Chancery Court. So, if you are accused of adultery/habitual fornication in Criminal Court, which IS a crime in Mississippi, you may invoke the fifth and the prosecutor must prove a violation of the law by beyond a reasonable doubt, however in Divorce Court, while you may invoke the fifth, the Court can treat that as an adverse inference/admission and could find such to be enough to rise to clear and convincing evidence of adultery. Confused yet?

Divorce Court and Criminal Court are different animals, with different standards and different outcomes. However, all are serious and your rights may be infringed if the Court determines they should be.

Matthew Thompson is a Divorce Court lawyer and encourages those charged with a crime to confer with an experienced Criminal Defense attorney.

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