Tag Archives: constitution

Adoption, Child Custody, General Legal, Opinion

Proposed ban on Sharia Law in Family Law in Mississippi; a Solution looking for a Problem.

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It’s that time of year again. Proposed law/legislation is being kicked around by the State Legislature.

House Bill No. 11, proposed by Representative Arnold, seeks “TO PROHIBIT THE APPLICATION OF SHARIA LAW IN DIVORCE AND
CHILD CUSTODY CASES; TO AMEND SECTION 11-63-1, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROHIBITION AGAINST USE OF SHARIA LAW IN COURT ORDERS.”

To date, this scribe is unaware of any Court’s using, applying or considering Sharia law in the State of Mississippi, as same would be contrary to the MS Constitution anyway.

Of interest, the Bill includes that a Mississippi Court “shall not enforce a foreign law that violates the Mississippi Constitution, any laws of this state, the United States Constitution, any laws or ratified treaties of the United States and the territories of the United States * * *.”

The Bill likewise bars enforcement of ” (b) Any order by a court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority that seeks to enforce foreign law in violation of paragraph (a) of this subsection (2) shall be void.”

So far, it’s basically saying MS Court’s will not honor foreign laws or Orders that violate MS law or Constitutional law or are based on factors contrary to MS law/US Constitutional considerations. Makes sense.

However, the Bill includes one other tidbit that could prove to have unintended consequences, “In Sections 11-7-301 through 11-7-309 “foreign judgment” means any judgment, decree or order of a court of the United States * * *. The term “foreign judgment” shall not mean
or include any judgment, decree or order from any jurisdiction outside of the United States or its territories, or any judgment from another state or territory of the United States that applies law from a jurisdiction outside of the United States or its territories.

This last paragraph seems to invalidate any “foreign judgment” that was not secured within the U.S.

Why do you care? Is that foreign Adoption, which is a Judgment, valid?

That “foreign” quickie Divorce in Haiti or the Dominican Republic? Are they valid?

Up and until this Bill, Mississippi and the United States have routinely recognized foreign judgments IF they were obtained in a procedural and substantive manner consistent with that foreign entities jurisdiction and law. This is called Comity and it’s a necessary legal concept.

Does HB. No. 11 unintentionally seek to overturn Comity? I argue that it certainly may and that’s no laughing matter!

Matthew Thompson is a Family law attorney and has handled multiple matters that involve foreign decrees and clients from all over the world.

Crime, Divorce, General Legal

Pleading the 5th in Divorce

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“I plead the 5th!”

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. –5th Amendment to the U.S. Constitution

In divorce cases pleading the 5th is not often invoked.  The reason is divorce cases are civil matters, by their nature.  Not civil in the sense that everyone is always nice, but civil as opposed to criminal.

When Can you Plead the 5th in a Divorce Matter?

When answering the question would involve you admitting to a crime.  Interestingly, adultery, or habitual fornication rather, is a crime in Mississippi. It is rarely prosecuted, but is a crime nonetheless.  Due to this you may invoke the 5th. However, you have not outsmarted the system.  Pleading the 5th in a civil matter creates a presumption that you did what was asked.  Or, at least the Chancellor can use it against you.

So, how does this play out? (envision a Courtroom)

Attorney:  Mr. Smith, it’s true isn’t is that you have committed adultery during your marriage to Mrs. Smith?

Mr. Smith:  I plead the 5th.

Attorney:  Let the record reflect that Mr. Smith has invoked his 5th amendment right against self-incrimination as it relates to a question about adultery and the Court may make an adverse inference against Mr. Smith for doing so.

Judge:  Duly noted.

Why do it then?  The witness does not have to disclose  the dirty details, name names, places, locations, or positions.

Pleading the 5th may not stop you from getting a divorce, but it may prevent bringing other persons down with you.

Matthew Thompson is a Divorce and Domestic Relations Attorney in the Magnolia State. Follow the blog:#BowTieLawyer 

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Divorce, General Legal, Marriage, Opinion

Mississippi in the News- A Test Case on Same-Sex Divorce

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Mississippi is the site of the latest same-sex challenge to laws preventing same-sex persons from getting married and seeking a divorce.

same-sex-divorce-cake-story-top
http://www.CNN.com

A Mississippi resident, who married her spouse in California, is now seeking that a Mississippi Court divorce them.  The couple lived in Mississippi for some time after their marriage and ultimately separated in the Magnolia State.  The case is pending in DeSoto County Chancery court and has garnered world-wide attention.

However, it may not be a walk in the park…

MS law specifically provides that a same-sex marriage is VOID.  Void means it does not exist, not that it could if everything was just right. Void=nothing.  The law goes on to specifically deny that MS has to recognize another state’s same-sex marriage.

MCA 93-1-1, (2) Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.

Now before you bash MS too much for this, it is quite common that states have different laws regarding requirements for persons to get married in their respective states.  Different laws can be allowed.  For instance you can marry your niece-in-law in California, but not in Utah.  And Utah does not have to recognize the CA marriage.  Nothing to do with same gender on that restriction.  Also, most states prohibit same-sex marriage, only 14 states allow same-sex marriage, at this time.

There are several issues that are apparent in this MS pending matter.

Issue #1.  MS law, which at this time is valid and constitutional by the way, disallows their “marriage” to be recognized as a marriage.  And, if no marriage, then there can be no divorce.

Issue #2.  The Mississippian sued her spouse on Habitual Cruel and Inhuman Treatment.  The parties had been separated for over 3 years by the time of filing which may be an indicator of limited grounds regarding cruelty, which is one of the most difficult grounds to prove.  So there may not be a divorce on cruelty anyway, as the plaintiff could not meet her burden of proof.

Issue #3.   The Mississippian sued her spouse for Adultery.  Adultery, in Mississippi, is defined as “sexual intercourse with a person of the opposite sex, not your spouse.” Despite this being the Bible Belt, it is possible that Mrs. Defendant is in another relationship with another person, of her same sex, and is still not committing “adultery.” Technically speaking, of course.

Issue #4.   The Constitution’s Full Faith & Credit clause.  FF&C requires that a valid Order from one State be recognized in another.  The catch is a Marriage is not an Order, but rather a contractual arrangement between the two spouses and the state that they are being married in.  This means a  marriage is not entitled to Full Faith and Credit.  Interestingly, a divorce would be, assuming the Jurisdictional/residency requirements were met.

So, some legal mumbo-jumbo and a refrain from a little common sense results in…nothing.  That is exactly what this litigant will get from Mississippi and will likely get it in abundance.  Stay tuned for more developments.

Matthew Thompson is a family law attorney and domestic relations adj. professor at MC Law;  Keeping you abreast of the ever-changing world of family law in which we live in.

Follow the blog: BowTieLawyer Visit the website: Thompson Law FirmYou may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms