Friday, June 21, 2013

Waiver of Financial Declarations

Mississippi family law caselaw is confusing as ever.  As someone has opined, you can find a position to support about anything.  A few years ago the Mississippi Supreme Court decided Trim v. Trim which can be looked at here.  The case held that the filing of a false 8.05 financial statement constituted a fraud on the court justifying a party to reopen a divorce. Based upon this and several other cases, some chancellors started requiring 8.05s to be prepared in every case.  Most chancellors took the middle of the road approach and asked that attorney's put a waiver of 8.05s in their property settlement agreements if the divorce was uncontested. 

Question:   Mississippi Code Annotated 93-5-2 requires the Court to make a finding that the parties agreement is adequate and sufficient to the property rights of the parties and the children of the parties if applicable.  On what basis can such a finding be made with no financial declarations?  Counter-argument seems to be that the parties sworn statements in a PSA may be enough absent fraud or overreaching.  You could be safe and argue both sides of this issue and have a whole line of cases to support both positions. 

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