3 years to file for alienation of affection in MS, but when does the 3 years start?

As the above letter from a reditt user shows, there are a number of ways to seek revenge with a cheating spouse.  If you are in Mississippi, you can add the filing of an alienation of affection lawsuit against the paramour to the list.

Mississippi is one of only a handful of states that allows a legal claim for alienation of affection.To prevail, a plaintiff must show  the legal elements for the claim which are wrongful conduct of the defendant, loss of affection or consortium and a causal connection between the conduct and the loss.  Fitch v. Valentine, 959 So.2d 1012, 1015 (Miss. 2007).  In addition, the plaintiff must file the lawsuit within the statute of limitations.  “Thought alienation of affection is an intentional tort, it does not have a specifically prescribed statute of limitations.  Therefore, we apply the general three-year statute of limitation..” Fulkerson v. Odom, 53 So.3d 849, 851 (Miss. Ct. App. 2011).

Under Mississippi law, a claim of alienation of affection accrues when the alienation of affection or loss of affection is finally accomplished.  The accrual of the claim, then, occurs when the affections of the spouse involved in the extramarital relationship are alienated.  The affections of the spouse wronged by the affair are irrelevant to a determination of when the cause of action accrued.

Carter v. Reddix, et al, 115 So.3d 851, 857 (Miss. Ct. App. 2012)(internal citations omitted).  The discovery rule does not toll the three year statute of limitations. Fulkerson v. Odom, 53 So.3d 849 (Miss. Ct. App. 2011).

With those general principles in mind, the Mississippi Court of Appeals is set to her oral argument in the case of Shane Anderson v. James B. Ladner in cause no. 2014-CA-00730 on Wednesday at 10:30 a.m.

Webcast link.

Brief of Shane Anderson

Response of James B. Ladner

Reply of Shane Anderson

Anderson brought claims against Ladner for alienation of affection (AA), reckless infliction of emotional distress and punitive damages.  The statute of limitations for an intentional infliction of emotional distress claim is one year and a claim for punitive damages is not a stand alone claim, so lets focus on the AA claim.

At the trial court level, Ladner argued that the filing of the joint filed divorce triggered the running of the statute of limitations on the AA claim.  The trial court agreed and dismissed the case.

On appeal, Anderson primarily argues for a bright line rule that accrual of an alienation of affection case begins at the finalization of the divorce and that such a rule “would be more consistent with the irreconcilable differences divorce statute because the statute itself provides for an opportunity for reconciliation.”  Anderson’s Brief at p. 10.

Ladner counters that Anderson didn’t request a bright line rule before the trial court and that Anderson’s claim accrued at the time the complaint for divorce was filed.  Ladner also argues that Anderson is prohibited from arguing a different accrual date due to res judicata and collateral estoppel.

So when exactly does the three years start?  The positions advocated by both parties have positives and negative attributes.  A bright line rule provides clarity.  However, consider the situation where a married couple files for divorce, but subsequently reconcile in spite of an earlier alienation of affection by a third party.  Anderson’s position would be that an AA claim never accrued because there was no divorce.  Ladner’s position is in and of itself a form of bright line rule.  Any time a divorce was filed (regardless of whether the parties completed the divorce), the statute of limitations would begin to run on an AA claim.

Tune in tomorrow at 10:30 for the argument.

Search terms……….Ask Randy

One of the features of WordPress is that I can see what search terms people use to arrive at my page.  From time to time I review those search terms because it helps me to determine what websurfers are looking for in my page and because they are often down right funny.

I have been collecting the search terms into a list and today I am starting an “Ask Randy” section.  It is a combination of Dear Abby, ask a friend and general legal advice.  If you have a specific legal issue contact an attorney licensed in your state for your specific issue.  As always, keep this legal notice in mind.

These are actual search terms that someone sat down and typed into google.com or some other web search engine to arrive at my blog.

can i talk to my boyfriend’s divorce attorney

Sure and make sure you tell him that you want to be the first witness in the divorce trial.  While you are at it, ask him to tell you if there is anything you need to know about your boyfriend and to send you a letter with the divorce case strategy.  You aren’t his client and anything disclosed to you is open for discovery, but you need to know stuff, right?  I am kidding.  If he needs to know anything from you, he will contact you.  There is no reason to contact him.

my girlfriend sent damaging text messages to my childs mother

Find a new girlfriend.  If she is directing stupidity to the mother of your children, it will not be long before she directs it at you.

how to tell your ex husband you have a new boyfriend

Hallmark card?  No.  Unless you have children and the new boyfriend will be around the children there is not much of any reason to tell your ex-spouse anything.

what to do if you dont want a divorce but hate your spouss

Your hands are kind of tied.  Why be miserable?  Cut him loose and move on for the sake of sanity.

plaintiff lies

Yes, some plaintiffs lie.  Some defendants lie.  Big lies, small lies and medium sized lies.  Prove it to the Court and move on with your case.

what happens when a divorce goes to trial

The lawyers put on proof.  The parties generally take the stand.  While their lawyer is asking them questions, everything sounds great.  When the other lawyer asks them questions, the chair they are sitting it gets very uncomfortable.  Witnesses take the stand.  Some will tell the truth and some will lie.  The Chancellor may believe some or all of their truth and lies.  The Chancellor makes a decision.  Generally both parties end up unhappy to some degree because neither had a hand in crafting a solution.  This is why mediation is an excellent idea.

girlfriend during divorce

Bad, bad idea.  You are in the middle of a bad relationship.  Wait a while before starting a new one.

what to do if your husband wants to divorce you over just a few text messages

Realistically access the situation.  Is it really just over a few text messages or are there other problems?   There is a big difference between a couple text messages and a few hundred or a few thousand.  What was the content of the text message?  There is a big difference between a couple of work related texts and a couple that say “Meet me at my house.  My husband isn’t home, I am not wearing any underwear and want to…….”  You get the idea.

can i hide money from my exgirl friend

I would encourage you to hide money from ex-anythings.  She wasn’t your wife.

why pay medicare first from settlement plaintiff pays his medicare every month to insure his health care

Because there is a law referred to as the Medicare Secondary Payer Act.  Medicare is entitled to reimbursement for medical cost payments from your tort recovery.  Ask your lawyer to explain it.  There are books written about the subject.

can you use your spouses twitter in a court case for adultery?

Heck yes.  Twitter, facebook, myspace, linkedin, email or whatever are merely digital versions of documents.  Ask for them in discovery.  If you already have copies or printouts of their contents, keep them and turn them over to your attorney.

do you have to give notice to your ex wife when i decide to remarry

Not in Mississippi unless the divorce decree states that you must.  As a practical matter, you might want to mention it to your ex if you have kids.  Most divorce decrees have a “morals clause” or provision limiting overnight visits by people of the opposite sex unless you are married to them.

if you have a significant other during a divorce

Just don’t do it.  There is plenty of time after the ink is dry on the divorce.  You are in a divorce and that is a problem.  Do not compound your problem.

should you divorce if your husband put his hand on you

If I were a women (yes, that is a scary thought), I would be gone like the wind if anyone physically struck me.   You have to make your own decision rather than leaving it up to a google.com search.

do i need to ask my ex wife if i can have a dog

If you have children it wouldn’t be a bad idea to inform your ex that you intend to purchase a puppy and see what her reaction is.  If it is negative, you might want to consider if it is really worth the fight.  Likewise, if your children have allergies getting a pup might not be such a great idea.  Also consider the breed of dog.  A pitbull isn’t going to be popular with your ex or the judge.

should i delete wife on facebook during divorce?

Heck no.  Gather up all the info you can.  On a related note, don’t post anything to your facebook account except pictures of you and your children having a great, safe time.  No drinking, no skydiving, and no girlfriends.  You need to look like Ward Cleaver.

best texts to send during a divorce

None.  There are no best texts to send during a divorce.

during a divorce can a judge order you to hand over your emails and messages on facebook

Yes.  If you don’t want the judge to see it, do not write it or type it.  Simple as that.

can porn be used against husband in divorce

Yes.  Most anything that adversely affects the marriage or that could be detrimental to the children can be used against a party to a divorce.

can text messages be used in a divorce case in mississippi

Yes.  The problem is obtaining the actual text message.  Cellular providers do not keep the substance of the texts for a long period of time, if at all.  The number logs that merely show a text went from one number to another number on the other hand is saved for years in some cases.

does negativity piss off judge divorce

Yes.  Negativity pisses off everyone.  You don’t have to be Richard Simmons happy, but don’t be negative.

bringing your boyfriend to divorce court

Discuss this with your attorney.  Never bring anyone to court unless your attorney knows about it before hand and approves.  There is no way I would have a client bring a boyfriend or girlfriend to a divorce proceeding unless there was a dang good reason for doing so.  Otherwise, you are just giving the other side a witness to use against you.

can a divorce be revoked

In Mississippi, the answer is yes.  The process is not terribly complicated, but there is a process.

how to piss off your ex gf for putting you on child support

Don’t do it.  If your spouse gets pissed off, who is she going to take it out on?  Everyone.  This includes you or the kids.  Suck it up, put your big boy underwear on and pay the child support.  Regardless of what you think, it generally costs more to raise a child than what you are paying in child support.

when should you tell your children a divorce happened because of adultery

Probably never.  It is a matter between the parents.  No need to inform the children that “mommy is a tramp” or that “daddy is a dog.”

my divorce is not final and my husband got his gf pregnant is that adultery

Yes……..and your husband is an idiot.

can i get everything in divorce trial

Maybe, but generally no.   Mississippi follows equitable distribution.  It is not called “you get everything distribution.”  If you want everything, your spouse is likewise going to request everything.  You have to give something to receive something.  Only litigate over items that are truly valuable to you.

Other states have other property distribution systems for divorce.  For example, Louisiana has community property.  Some states have covenant marriages or contractual marriages which can determine the parties rights and obligations.

do i have to do what the judge says in my divorce

Yes.  As I have previously stated “do whatever the court orders you to do and do it until the court orders you to do something different.”

does gambling look bad for divorce

Excessive anything typically looks bad.  That goes for gambling, drinking, smoking, drug use, etc.  It also looks like you have excess money that could be used to pay more child support or alimony.