Category Archives: Family Law

Mississippi Divorce

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Mississippi Divorce

Currently, there are two ways to get a divorce in Mississippi, irreconcilable difference (AKA “no fault”) divorce, under Miss. Code. Ann. § 93-5-2 or an at-fault divorce, under Miss. Code. Ann. § 93-5-1. Currently under Mississippi Law there are 12 at-fault grounds for divorce:

  1. Desertion (willful abandonment of a marriage for at least 1 year without just cause, excuse, or intention to return)
  2. Natural impotency
  3. Insanity/Idiocy
  4. Pregnancy by another person at the time of marriage
  5. Adultery
  6. Incarceration
  7. Habitual Drunkenness
  8. Habitual Drug use
  9. Habitual cruel and inhuman treatment (conduct that endangers life, limb, or health , or creates a reasonable unnatural or infamous nature to make the marital relationship revolting to the innocent spouse)
  10. Bigamy
  11. Incest
  12. Incurable mental illness

To receive a divorce on any of these grounds the innocent spouse must prove the alleged ground through evidence and/or witness testimony. If the alleged ground is not proven, then a divorce cannot be granted.

Procedure and Waiting Period:

For either method of divorce, the parties MUST have been a resident of the State of Mississippi for at least 6 months before filing of divorce.

Irreconcilable differences:

With this form of divorce, both parties agree that the marital relationship is irreparable. Both parties must also agree to division of any and all assets, debts/liabilities, and if applicable child custody, support, and visitation.

Generally, both parties sign the Joint Complaint; although it can be filed by only one party and joined by the other party at a later date.

Once the Complaint for Divorce is filed, the waiting period of 60 days begins to run. At the conclusion of the 60 days, the Judge will hear the parties and a divorce can be granted.

The parties can agree to waive the U.C.C.R. 8.05 (financial disclosure statement) should each spouse assert whole knowledge of the other spouse’s financial status.

Generally the documents needed for an irreconcilable difference divorce are: 1) the Complaint, 2) the Property Settlement Agreement (PSA) which may also include custody related matters, and 3) the Order for Divorce.

At-Fault Divorce

With this form of divorce, one party MUST prove one of the above mentioned grounds for divorce. Proof can be shown from any form of evidence including testimony. Some forms of evidence include, but are not limited to, texts, emails, photos, witness testimony, or even admission of guilt by the offending party.

Once the Complaint has been filed and the offending party served, the offending party will have 30 days to answer the Complaint. After the 30 days has run then the party(s) can present the matter to the Court for its consideration. If the ground(s) alleged is proven, a divorce will be granted; however, if the ground(s) alleged is not proven, a divorce cannot be granted.

The parties can agree to waive the U.C.C.R. 8.05 (financial disclosure statement) cannot be waived in a fault-based divorce action and both parties must present said financial disclosure statement to the Court.

It must be noted that even after an At-Fault divorce is filed and has commenced the parties can agree to an irreconcilable difference divorce and with draw the fault allegations, as long as the ground of irreconcilable difference was alleged in the Complaint for Divorce. Therefore, I generally recommend to all of my clients that we allege irreconcilable differences in the alternative to any fault allegations made.

I hope that this post has been informative, and should you have any questions or need further information or assistance with a divorce related matter, please contact my office.

 

MS Child Custody Factors

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MS Child Custody Factors

In Mississippi, both parents have equal rights to the child(ren) unless otherwise determined by the Court. So, when the issue of child custody arises the Court must decide what is in the best interest of the child(ren) in accordance with Miss. Code Ann. Sec. 93-5-24. To determine what is the “best interest” of a child the Albright Factors are considered. Albright is the case that set precedent in Mississippi family law when it comes to child custody. (Albright v. Albright, 437 So. 2d 1003 (Miss. 1983)). The following factors are considered the Albright Factors and are used when Child Custody is addressed:

  1. the age, health, and sex of the child;
  2. the continuity of care prior to the separation;
  3. the parenting skills;
  4. each parent’s willingness and capacity to provide primary child care;
  5. each parent’s employment and responsibilities of that employment;
  6. each parent’s age and physical and mental health;
  7. emotional ties between the parent and child;
  8. moral fitness of the parents;
  9. the child’s ties to home, school, and community;
  10. the child’s preference, if the child is of a sufficient age to express a mature preference (usually 12 in MS);
  11. each parent’s relative financial situation;
  12. difference in parents’ religious beliefs or non beliefs;
  13. difference in parents’ personal values and lifestyle;
  14. the stability of each parent’s home environment; and
  15. any other factors the court believes are relevant to the parent-child relationship.

This isn’t a magical or mathematical formula, however. Just because 6 factors favor one parent and 5 favor the other parent, this does not mean that custody will be awarded to the parent who had 6 factors in his/her favor.  Each factor may carry different weight and the outcome will depend on what is in the child(ren)’s best interest.

Some years ago, a mother was presumed to be a better care giver and the “Tender Years” doctrine was born. However, more recently, it has been held that both parents should be presumed equal under Mississippi Code Ann. Sec. 93-5-24(7) “[t]here shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody”. This statute removes any legal presumption that a mother should have custody unless she is proven unfit. Therefore, it has be held that “a child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So. 2d 304, 307 (Miss. 1998).

If you are facing a custody suit, it is critical that you retain an attorney who will aggressively protect your rights. I zealously represent my client’s rights to custody and guide him/her through the minefield of child custody battles and explain his/her rights, obligations, and option and what will work best in his/her situation, because no two cases are the same. Should you need legal representation in child custody, support, modification, contempt or other family law matters, please contact my office at 601-483-4144 or via email at stella@stellahurttlaw.com.