At Malouf & Malouf, we are experienced in handling the full range of complex legal issues arising out of divorce. A divorce is without question one of life’s most traumatic experiences. While it may consume your entire life, you do not have to face it alone. Our attorneys are dedicated to helping you make it through this difficult time in your life. We are experienced in resolving complex child custody, visitation, child support, alimony, and property division issues. Whether you have decided to file for divorce, your spouse has decided to file, or you have both made a mutual decision to put the past behind you, our attorneys will strive to make your transition as smooth as possible.
Mississippi Grounds for Divorce Irreconcilable Difference
Mississippi is one of the few states that has not enacted a true “No-Fault” divorce. A true “No-Fault” scheme generally allows for divorce based upon proof by one of the parties that the marriage is irreparable. Mississippi’s modified version of “No-Fault” divorce is Irreconcilable Differences. To obtain a divorce on the ground of Irreconcilable Differences, both spouses must consent to the divorce and the petition must be on file for sixty days before it can be granted. Under this ground for divorce, most commonly the parties agree on property distribution, child custody, and alimony before a divorce can be granted. However, if the parties cannot agree on the issues, then they may agree to allow the judge to decide the disputed issues. The judge has no authority to decide any issues in an Irreconcilable Differences divorce unless the parties have agreed to such in writing. Also, even if the parties agree on all issues, an attorney can only represent one party, not both.
Mississippi’s Fault Based Grounds for Divorce
If the parties are unable to agree on an Irreconcilable Differences divorce, then one party must file a complaint for divorce based on fault grounds. In that situation, there must be sufficient evidence to persuade the judge that one or more of Mississippi’s twelve fault based grounds for divorce are present. The twelve fault grounds are: (1) natural impotency, (2) adultery, (3) sentenced to any penitentiary, (4) desertion for one year, (5) habitual drunkenness, (6) habitual drug use ,(7) habitual cruel and inhumane treatment, (8) insanity at the time of marriage, (9) married to another at the time of marriage, (10) pregnancy of the wife by some other person at the time of the marriage, if the husband did not know of the pregnancy, (11) statutory incest, and (12) incurable insanity.
A party may file a fault based divorce and allege alternatively Irreconcilable Differences (no-fault). If the parties are later able to agree on the divorce, then the fault grounds may be withdrawn and an Irreconcilable Differences divorce entered.
Divorce Property Distribution
Subject to the court’s approval, the parties to a divorce are free to agree on property distribution. However, if they fail to agree, then the judge decides “who gets what.” For purposes of property distribution in divorce, Mississippi is neither a “title” state nor a “community property” state. In “title” states, upon divorce, each spouse is awarded the property titled in his or her name. In “community property” states, each spouse receives one half of the marital property. Our State adheres to an “equitable distribution” system of property distribution where title to property is irrelevant and each spouse does not necessarily receive one half of the marital property. In Mississippi, equitable does not mean equal, it means fair.
The Court takes the following steps when distributing property in a divorce:
- Classify property as either marital or separate property. With few exceptions marital property is generally any property acquired during the course of the marriage. For instance, property acquired through inheritance or a gift to a single spouse is classified as separate property. Also, in some circumstances courts will classify property accumulated after the mere date of separation as separate property. Separate property is generally any property acquired before or after the marriage, and separate property is not subject to equitable distribution via the divorce proceeding. Additionally, the court has discretion to classify separate property that has been commingled with marital property as marital property and thus subject to equitable distribution in divorce.
- Determine the value of the marital property. Value is determined by the fair market value. In other words, the price a willing buyer would pay a willing seller if both were fully informed about the deal.
- Equitably distribute the property. In distributing marital property between the parties, Mississippi courts base the decision on the following factors: (1) a spouse’s substantial contributions to property accumulation, (2) a spouse’s use of marital property or distribution of marital property by agreement of the parties, (3) the market and emotional value of the marital property, (4) the value of each spouse’s separate estate, (5) tax consequences, (6) the extent to which property division can eliminate the need for alimony, (7) the needs of each spouse, (8) fault in the divorce, and (9) other factors which the court deems in its discretion should be considered.
Many divorcing couples simply do not have sufficient assets to achieve financial stability through the property distribution. A primary goal of Mississippi’s equitable distribution system of property division is to eliminate the need for alimony. However, often times it is not a realistic possibility for many ex-spouses, specifically those ending a long marriage relationship. Mississippi recognizes several different types of alimony, and contrary to traditional notions of alimony, each type is equally available to men and women.
- Permanent Alimony is a continuous monthly support payment intended as a substitute for the previous marital support obligation. The award terminates upon the death of either party or upon the receiver’s remarriage. It can be modified upon a showing of a material change in circumstances since the date of the award. The court weighs the following factors when determining whether permanent alimony should be awarded. (1) the income and expenses of the parties, (2) the health of the parties and their earning capacities, (3) the needs of each party, (4) the obligations and assets of each party, (5) the length of the marriage, (6) whether minor children are involved and whether child care is required, (7) the age of the parties, (8) the parties standard of living both during the marriage and at the time of the support determination, (9) the tax consequences of the spousal support order, (10) fault or misconduct of the parties, (11) the wasteful dissipation of assets by either party, and (12) any other factor the court in its discretion deems equitable and just.
- Lump Sum Alimony is a fixed sum of money that cannot be modified, does not terminate upon the receiver’s remarriage or death, nor at the payor’s death. Though it is termed “lump sum” it generally is paid in monthly installments for a predetermined number of months. Generally, lump sum alimony serves to reward a spouse for substantial long-term contributions to the marriage when it cannot be accomplished through property division. Mississippi courts generally consider the following questions when determining whether an award of lump sum alimony is warranted. (1) Did a spouse substantially contribute to the accumulation of marital assets by quitting work to become a homemaker or to assist in business? (2) Were the parties married for a lengthy period of time? (3) Does the recipient’s spouse have a separate income or is the size of their estate small compared to the other spouse? Finally, (4) would the recipient lack financial security without the award?
- Rehabilitative Alimony is awarded to assist a spouse in making the transition to reenter the workforce. It is similar to permanent alimony, but has a fixed ending date. It terminates upon the death of either party, but parties are free to alter the termination date by agreement. In determining whether rehabilitative alimony is proper, courts generally apply the same factors used to determine an award of permanent alimony.
- Reimbursement Alimony is a lump sum form of alimony designed to compensate a spouse who supported the other through school or professional training. It is generally awarded when the marriage ends before a financial return on the education is realized. If the student-spouse divorces the other soon after finishing his/her school or training, then the supporting-spouse may be entitled to reimbursement alimony.
Nothing is more important to us than our children. Our attorneys understand this and will fight for your children’s best interests. Unlike alimony and property division, child custody disputes often arise in situations other than divorce such as annulment proceedings, suits for separate maintenance, petitions for custody by unmarried parents, paternity actions, adoption and termination of parental rights proceedings, and child abuse proceedings. Parties are free to agree on child custody; however, if they cannot agree, then the court will decide for them.
Child custody is divided into two categories: physical custody and legal custody. Physical custody concerns the time period the child resides with or is under the care and supervision of one of the parents. Legal custody concerns the decision making rights related to a child’s education, health and welfare. The court may award joint physical and legal custody meaning both parents are jointly responsible, or it may award one parent physical custody and one parent legal custody. Further, the court may award joint legal custody to both parents with sole physical custody in one parent or vice-versa. In legal jargon, the parent without physical custody is known as the non-custodial parent.
In Mississippi, both parents are presumed to be equally entitled to custody of their children; however, the polestar consideration in determining child custody is “the best interests of the child.” With this in mind, Mississippi courts consider the following non-exhaustive factors when determining child custody. (1) the child’s age, (2) health, and sex of the child, (3) which parent provided continuing care for the child prior to separation, (4) parenting skills, (5) which parent has the willingness and capacity to provide primary child care, (6) both parent’s employment responsibilities, (7) the parents age, and physical and mental health, (8) emotional bonds between the parent and child, (9) the child’s school and community record, (10) the child’s parental preference if the child is twelve years of age or older, (11) the stability of the home environment and employment of each parent, (12) the parent’s moral fitness, and (13) other factors the court deems relevant to the parent-child relationship.
The law has long recognized the duty of parents to provide support for their children. Our attorneys will work hard to obtain the support your children need and deserve. In Mississippi, child support may be ordered as a part of a divorce, annulment, separate maintenance proceeding, paternity proceedings, or via an independent action brought by an unmarried spouse.
Generally, child support is payable by the non-custodial parent to the custodial parent on behalf of the child. Mississippi courts generally adhere to the statutory guidelines when determining child support payments, but are not necessarily bound by them. The guidelines specify that a non-custodial parent should pay the following percentages of their adjusted gross income for child support: 14% for one child, 20% for two children, 22% for three children, 24% for four children, and 26% for five or more children. The statutory guidelines are presumed correct for individuals with an adjusted gross income between $5,000 and $50,000. For persons earning outside that range, the court must make specific findings of fact to support its award. Also, a court may deviate from the support guidelines based on the following factors. (1) A child’s extraordinary medical, psychological, dental, or education expenses, (2) other special needs of the child, (3) shared parenting arrangements, (4) the age of the child, (5) independent income of the child, (6) spousal and child support paid to the custodial parent, (7) total available assets of the parents and children, (8) seasonal variation in income or expenses of one or both spouse, and (9) any other factor needed to achieve an equitable support obligation.
Post Divorce Modification
It is inevitable that sometimes there are unanticipated changes after divorce. If there has been a material change in circumstance since your divorce was finalized, our attorneys will use their experience to fully develop the facts and bring to the court’s attention that it is in your or your child’s best interest to modify the previously adjudicated custody, child support, or alimony payments. We will work diligently to protect the rights of you and your children.