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YOU MUST DO EQUITY TO RECEIVE EQUITY.

Family law matters are handled in the Chancery Court system in Mississippi. Mississippi is one of the few states with a dual justice system where the court systems are divided in two: The Circuit Courts, which handle law related matters such as contracts, criminal, and tort cases; and the Chancellor system, which handles land matters, estates and family matters. The Circuit Courts are called upon to follow laws and written contracts and to apply them objectively. The Chancery Courts are deemed courts of “equity” and they are called upon to look at each case individually and do what is fair and just for all parties.

Since family matters are handled in these “courts of equity,” divorcing or divorced people have a special burden to act with fairness and decency toward their opposing spouse or ex spouse. This is often hard for people because family situations such as divorce are often accompanied by betrayal, cruelty, adultery, and anger. The desire to “strike back” or make things difficult for the other party is often very strong. Attorneys often walk the tight rope of advocating for and being sympathetic for their clients position while at the same time encouraging them not to take action which might later be deemed by a court to have been unfair.

The recent case of Day v. Day 2009-CA-01296-COA (Decided February 9, 2010) demonstrates this point. In that Case, the parties’ divorce agreement called for the marital home to be sold within 24 months. If it were not sold, the agreement called for Mr. Day to purchase the home from the former Mrs. Day for the amount of equity determined from an appraisal. But the former Mrs. Day had so much anger for Mr. Day that she refused to cooperate in obtaining an appraisal. She knew Mr. Day was far away in Ohio and would have to go to great expense to hire an attorney to make her comply with the order, so she stalled and refused to cooperate. Then she made the mistake of suing Mr. Day for contempt on some relatively minor issues. This caused Mr. Day to have to hire an attorney and he responded with a counterclaim for contempt against Mrs. Day. As a result, an appraisal was ordered. The appraisal showed substantial appreciation in the home since the end of the 24 month period. The former Mrs. Day wanted her half of that appreciation, but the Chancellor refused. He found that she should not profit from her failure to adhere to the agreement in a timely fashion. He awarded her a mere $6,000. The Court of Appeals affirmed, citing the former Mrs. Day’s unjustified interference with the sale in a timely fashion.

Both clients and attorneys must always be reminded that in Chancery Court, “you have to do right to get rights.” You must “come into court with clean hands” in order to get help from the Chancery Courts.