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.

Rule 11. Sanctions: Party or Attorney Misconduct

Sanction” is a penalty or punishment provided as a means of enforcing obedience to a law.  thelawdictionary.org

The Mississippi Rules of Civil Procedure, that all attorneys and parties have to abide by in litigation, include a specific rule that an attorney or a party may NOT file a motion that is frivolous or for the purpose of harassment or delay. M.R.C.P 11.

Frivolous” means a claim or defense made ‘without hope of success.’” See In re Spencer, 985 So. 2d 330, 338 (Miss. 2008). M.R.C.P 11

(b) Sanctions…For wilful violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted. If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees. [Amended effective March 13, 1991; amended effective January 16, 2003] M.R.C.P 11

Rule 11 provides two alternative grounds for the imposition of sanctions—the filing of a frivolous motion or pleading, and the filing of a motion or pleading for the purpose of harassment or delay. See Nationwide Mut. Ins. Co. v. Evans, 553 So. 2d 1117, 1120 (Miss. 1989). M.R.C.P 11

Although a finding of bad faith is necessary to sustain the imposition of sanctions based on purposeful harassment or delay, a finding of bad faith is not necessary to sustain the imposition of sanctions based upon frivolous pleadings or motions. M.R.C.P. 11.

A pleading is “frivolous” if its “insufficiency…is so manifest upon a bare inspection of the pleadings, that the court or judge is able to determine its character without argument or research.” In re Estate of Smith, 69 So. 3d 1, 6 (Miss. 2011). M.R.C.P 11

Sanctions against a party are improper in cases where the party relied strictly on advice of counsel and could not be expected to know whether the complaint was supported by law, where the party relied on advice of counsel in filing the pleading and played no significant role in prosecution of the action; or where the party was unaware and lacked responsibility for any bad faith harassment or delay. See Stevens v. Lake, 615 So. 2d 1177, 1184 (Miss. 1993). M.R.C.P 11

Let Rule 11 serve as a warning against filing things you know are untrue and/or that you cannot prove.

Matthew Thompson is a Chancery Court attorney in Mississippi and doesn’t often seek sanctions, but does when it’s warranted.

Happy Father’s Day!

(601)850-8000 http://www.BowTieLawyer.ms

Divorce, Child Custody & Child Support, Alimony, Contempt, Modification, Youth Court, TPR/ Adoption and Appeals.

%d bloggers like this: