Court Approval of Prenuptial and Postnuptial Agreements

I started thinking about this issue of prenuptial and postnuptial agreements this morning.   I have argued both sides before of setting them aside and seeking to uphold them.  Another issue on these is that custody cannot be contracted for in them.  This would particularly be the case where a child is not even born yet.  One idea I think that needs to be investigated is whether a joint petition for declaratory judgment signed off by both parties at the time of the agreement may be helpful with the same being approved by the Chancery Court.  This way you would have court approval that the agreement is valid and binding.  In theory, you might be able to address custody in the agreement if the child is already born.  For policy reasons, I see an uphill battle if the child is not born yet.  This could also, if drafted correctly, subject the agreement to modification standard as opposed to an initial custody or property division standard.

Modification of Escalation Clauses

The Mississippi Supreme Court decided Short v. Short located here last week.  The main issue was whether the trial court had erred by failing to determine a material change in circumstances had occurred since the original agreement of the parties had been entered.  Mr. Short had originally entered into a child support agreement that contained an escalation clause.  The clause provided a floor of $3,000 per month in child support.  Mr. Short's income dropped significantly and he filed for modification of the support order.  The trial court denied it since there was a minimum support amount in the agreement.  The Court of Appeals affirmed.  The Mississippi Supreme Court reversed finding that sufficient proof was presented of a change in circumstances to review the order.  As such, even though the parties originally agreed to the high amounts, circumstances had changed warranting a review of it.  The ruling also clarified what is essential in escalation clauses.  The Supreme Court overruled Bruce v. Bruce, 687 So. 2d 1199, 1202 (Miss. 1996) located here and stated that escalation clauses no longer have to be tied to all the factors set forth in Tedford v. Dempsey, 437 So.2d 410 (Miss. 1983)but only that they should be.  To me, this opens the door to trial courts attempting to craft escalation clauses in contested proceedings. 

Taxation of Confidentiality Agreement

Many times a defendant in a case wants a confidentiality agreement.  A value needs to be set or this may create a taxable event for a client.  The U.S. Tax Court has made it clear that a confidentiality clause must be supported by sufficient and clearly stated consideration or the Internal Revenue Service (IRS) can assign any “just or fair amount” as the amount of the consideration involved, and that, in any event, all consideration for confidentiality is taxable income to the recipient. See, for example, Amos v. Commissioner, T.C. Memo. Docket No. 13391-01, 2003-329, December 1, 2003 (tinyurl.com/9d25phz).  The easiest thing is probably to set the value of the confidentiality agreement at $10.00 or so. 

Need to Object Again?

Motions in limine are a good practice on personal injury cases.  What happens when it is denied and the issue comes up in trial?  Do you have to object again?  Mississippi does not seemed to have addressed the issue.  A court in Wyoming has said yes that another objection needs to be made  in Hicks v. Zondag, 2014 WY 16 (Jan. 28, 2014) in order to preserve the issue for appeal.  If the second objection is not made, it is waived on appeal according to this case.  Tennessee has a case with similar language in it.  I would expect Mississippi Courts to make a similar ruling. 

Youtube

I am about to start experimenting with launching a Youtube channel for marketing purposes.  It can be a fairly cost effective way to communicate with clients.  We will see how it goes after I work out the kinks. 

Privilege Log

In  a number of prior posts I have talked about the benefit of using Rule 1006 summaries.   In my opinion, these summaries could also be used to argue your case to make detailed factor charts on the Albright factors for custody or any of the other factor tests used in Mississippi.  The question then becomes, must they be disclosed in discovery.  I say no as they are attorney-work product.  The best way to handle the situation is to make a privilege log to disclose in discovery of what all you are claiming as attorney work product to provide in discovery.  If there is any question, the judge can sort it out. 

Adultery Clause

For religious reasons, many parties want to obtain a divorce on the grounds of adultery.   One way to accommodate this which may speed a case along is to either stipulate to it if the case is going to trial anyway.  Another way, if the parties are agreeable to everything else is to agree the parties will be divorced on irreconcilable difference but put an religious and/or adultery clause in the property settlement which states the other party is certifying they committed adultery in order for the other party to have the right to remarry for religious reasons.  This may help speed a case along at times.