Holcomb Dunbar - North Mississippi Attorneys

Divorce and Child Custody

Fotolia_20569250_Subscription_Monthly_XXLDivorce and Child Custody in Mississippi

The Fault Grounds for Divorce

Mississippi law provides 12 fault-Based grounds for Divorce:

  1. Natural impotency;
  2. Adultery;
  3. Being sentenced to a penitentiary and not being pardoned before being sent there;
  4. Willful, continued, obstinate desertion for the space of one year;
  5. Habitual drunkenness;
  6. Habitual and excessive use of opium, morphine, or like drug;
  7. Habitual cruel and inhuman treatment;
  8. Insanity on the date of the marriage, if the complainant was without knowledge of the insanity;
  9. Marriage to some other person at the time of the purported marriage;
  10. Pregnancy of the wife by another at the time of the marriage, without the husband’s knowledge;
  11. Relation within the prohibited degrees of kindred; and
  12. Incurable insanity.

In 2017, the Mississippi legislature broadened the definition of habitual cruel and inhuman treatment to assist abused spouses to obtain a divorce.

Under the traditional definition an abused spouse could attempt to file under the habitual cruel inhuman treatment ground. However, if the abuse was isolated or did not occur with some frequency, the abused spouse would find nearly impossible to obtain a divorce.

The 2017 update to the law, expands the Habitual Cruel and Inhuman treatment ground and further provides that the domestic abuse can be:

established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to:

That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or

That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.

With this additional language an abused spouse, even in the face of the abuser’s objection to the separation, may obtain a divorce from an abusive spouse from a single physical event. It further expands and clarifies that emotional and verbal abuse may allow a divorce, though this section maintains the “pattern of behavior” language.

Mississippi, along with South Dakota, remain the only two states in which there is no unilateral no-fault divorce grounds. This means, that a party may obtain a divorce by agreement of both, irreconcilable differences (see below), or proving one of the fault grounds above.

For More information Contact:

Jonathan Masters or Stacey Golmon

slider-3Irreconcilable Differences Divorce

Mississippi law also allows for irreconcilable differences divorce.  To obtain such a divorce:

  1. The parties must agree at least to the divorce and withdraw any contest or denial.
  2. The court document requesting the irreconcilable differences divorce must be on file for at least 60 days.
  3. The parties must agree in writing on all issues relative to the dissolution of the marriage.

The parties may also include agreements for the custody and maintenance of any children of that marriage and for the settlement of any marital property.

If, however, the parties are unable to agree upon custody and maintenance of any children of that marriage or any property rights, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree.

For More information Contact:

Jonathan Masters or Stacey Golmon

 

blog2Child Custody and Visitation

Joint Physical Custody:

Means that a child spends significant period of physical custody with each parent.

Joint Legal Custody:

Means that the parents share in the decision making rights for the child.  A court order will typically state the nature of the custody which may include “joint and legal custody shall be shared between the parties.”

Determining Custody:

Courts seek to determine what is in the best interests of the child.  The factors which are typically reviewed in deciding custody are:

  1. The age, health, and sex of the child.
  2. Which parent had continuing care of the child prior to separation
  3. Which parent has the best parenting skills
  4. Which has the willingness and capacity to provide primary child care
  5. The employment responsibilities of both parents
  6. The physical and mental health and age of the parents
  7. Emotional ties of the parent and child
  8. The parent’s moral fitness
  9. The child’s home, school, and community record
  10. The preference of a child at the age of twelve
  11. Stability of the home environment and employment of each parent
  12. Other relevant factors

Note also that the preference of 12-year-old is only one of the factors.

Visitation:  Typically, the noncustodial parent is entitled to substantial and unrestricted visitation.

Modification:  To change an existing custody or visitation order, there must be a material change in circumstances.  For example, this may arise upon the relocation of one parent such that the existing order cannot be followed.

For More information Contact:

Jonathan Masters or Stacey Golmon

 

Fotolia_21923876_Subscription_Monthly_XXL-(1)Child Support

Mississippi law provides that both the mother and father are equally responsible with the care, nurture, welfare and education of their children.  Typically the noncustodial parent will then be responsible for paying child support to the custodial parent.

 

 

Determining the Amount:

The standard guidelines are:

1 child = 14 % of gross adjusted income

2 children = 20 % of gross adjusted income

3 children – 22% of gross adjusted income

4 children = 22% of gross adjusted income

5 or more children = 26% of gross adjusted income

However, the court may deviate from these percentages based upon particular circumstances in a given case.  Gross income may be adjusted for taxes, other mandatory deductions, and support for other children.

Modification of Child Support:

To change and existing support order, there must be a material change in circumstances.  This can include:  special health needs of a child, change in incomes of the parties, substantial increases in expenses, and other similar circumstances.

How Long Does it Last:

Support ends when the child reaches majority or is emancipated.  Majority is typically 21-years of age.  Emancipation may occur when the child reaches 21, marries, is jailed for 2 or more years for a felony or joins the military.  In some circumstances, emancipation may arise if the child quits school after turning 18.

College Expenses:

A parent is obligated to provide a child a college education provided the child is qualified and the parents are financially able to meet those obligations.  These expenses can be addressed in the original order or may give rise to modification at the appropriate time.

For More information Contact:

Jonathan Masters or Stacey Golmon

 

Fotolia_16021827_Subscription_Monthly_XXLProperty Division

Marital property:

Assets acquired or accumulated during the course of a marriage and separate from assets attributable to one of the parties’ separate estate prior to the marriage or outside the marriage.

Equitable distribution:

The concept by which marital property is divided among divorcing parties.  The Court reviews the marital property and attempts to divide in an equitable and fair manner.  This may not necessarily be equal halves.

Division Factors:

The Court reviews seven factors to determine equitable distribution:

  1. Substantial contribution to the accumulation of the property: direct or indirect economic contribution to the acquisition of the property, contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage, and contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets;
  2. The degree to which a spouse expended, withdrew or disposed assets and any prior distribution by agreement, decree or otherwise;
  3. The market and emotional of the assets;
  4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or gift by or to an individual spouse;
  5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
  6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
  7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
  8. Any other factor which in equity should be considered.
For More information Contact:

Jonathan Masters or Stacey Golmon

 

ContemptFotolia_21995387_Subscription_Monthly_XXL

A contempt action is used to enforce a court order already entered.  Such may arise if a party fails to make child support or alimony payments, or comply with a property division order.

Contempt requires a finding of a willful violation of a clearly written provision within the order.

Contempt may be avoided if a party was genuinely unable to pay, did not act willfully, if performance was impossible, or if a provision was ambiguous.  However, the specific details of the order and events must be reviewed in detail.

If a party is successful in showing that the other party is indeed in contempt, the court may award the successful party’s attorney’s fees and expenses.

In addition, it is generally better to be proactive if there are foreseeable circumstances which may lead to an inability to fulfill one’s obligations under an order, such as loss of a job.

 

For More information Contact:

Jonathan Masters or Stacey Golmon


2017