Friday, August 23, 2013

Little Known Aspect of Rule 81 - Part 2

This is the second post regarding one other little known aspect of Rule 81 of the Mississippi Rules of Civil Procedure.  Rule 81(d)(6) provides as follows:

"(6) Rule 5(b) notice shall be sufficient as to any temporary hearing in a pending divorce, separate maintenance, custody or support action provided the defendant has been summoned to answer the original complaint."

I had always been under the impression that a Rule 81 was always necessary for a temporary hearing in a divorce action.  From a practical standpoint, there is no reason not to issue a Rule 81 with the complaint.  However, under some circumstances especially where the parties are having ongoing negotiations in good faith, this might be of practical use where there is no need for immediate temporary relief.  To me the rule is a little strange in this area.  From my reading, it appears the Plaintiff could use Rule 5 notice once the Defendant is served but the opposite (i.e. Defendant serving  Plaintiff with Rule 5 notice) would not be sufficient as they were not served a summons. 

No comments:

Post a Comment