Made A Mistake Getting A Divorce? There May Be An Answer For You...

Posted by Leslie ShumakeSep 11, 20220 Comments

     Periodically our offices will get a call from someone wanting to know if he or she can get their divorce set aside.  The calls we get from people asking these kinds of questions are relatively rare, but typically come when a couple has reconciled and living together, after their divorce has been finalized.   Sometimes there is nothing we can do to help, even if we would like to, but Mississippi does give relief in certain cases.   Section 93-5-31 of the Mississippi Code is entitled  "Judgement of Divorce May Be Revoked"  

This statute reads as follows:

      "The judgment of divorce from the bonds of matrimony may be revoked at any time by the Court which granted it, under such regulations and restrictions as it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation"

(Notice that I highlighted "at any time" in the statute, because there is a common misconception that the amount of time that has passed since the divorce is a factor, which is untrue.) 

     There are five (5) things that the case of Arthur D. Carlisle, Administrator of the Estate of Charles E. Allen, III, vs Janet Ellen Davis Allen, 40 So2d. 1252 (2010) tells us about the process: 

     1. The parties must jointly file a Petition with the Court.   If only one of the parties wants to set the divorce aside, that is not permitted under this statute. 

     2.  The Petition must be filed in the court where the divorce was obtained.  

     3.  The court can impose restrictions and regulations which it thinks proper in setting aside the divorce.

     4.  At a hearing before the Judge, there must be satisfactory evidence of the parties' reconciliation, which can come from only one of the parties.     

     5.  If a joint petition has been filed, the person who is still alive can get the divorce set aside, even if the other party dies after the filing.    

    The only question we have at our offices concerns number 3, as there seems to be no guidance as to what "restrictions and regulations" can be imposed.   I have mentioned in other places on this website that the judges (Chancellors) who hear these types of cases often have more discretion and freedom in reaching their decisions than other courts.   This part of the statute seems to us to give the Chancellors the power to deny the requests of the parties to set aside a divorce, based on whatever rules or regulations they see fit to impose.    In fact, in the below case the Chancellor flipped the script.

    In the case of Shelia Ann Jones vs Michael Boyd Jones, 239 So. 2d 1091 (2018), the parties were divorced in 2012.  The had entered into a "Property Settlement Agreement" wherein the husband agreed that he would make certain monthly payments to the wife. He stopped paying and the ex-wife filed a "Contempt of Court"  action for his failure to abide by the settlement agreement.

     So far, all of this is pretty much how these things go, and part of the usual routine for contempt of court cases.   However, the trial judge's final ruling was anything but routine, and this is got the Supreme Court's attention.   In dismissing the Contempt petition of the wife the court went "behind the judgment" and basically determined that there was fraud back in 2012,  even though no fraud had been alleged or proven at this trial in 2016.  Even worse, the Judge invoked Section 93-5-1 and set aside their divorce, even though neither party asked for or wanted it set aside.   The Supreme Court wasted no time ruling that the judge was completely wrong on both counts, and reversed the decision.

    Notwithstanding the strange "Jones" case, I think it is clear from the statute that the Mississippi legislature intended to give willing parties a way to "right a wrong", and I believe most courts will honor the wishes of the parties, if at all possible.