Mississippi Divorce Recovery

Child Custody

During a Mississippi divorce proceeding, child custody laws instruct family courts to make no presumption in favor of maternal custody (the mother always getting custody). In theory this means either parent has an equal opportunity to be granted physical custody. [The reality is that most custody awards go the mothers (in more than three-fourths of the cases), although courts are awarding custody to fathers in greater numbers in recent years]. You and your spouse are able to agree to your own Parenting Plan and Visitation Schedule. Should you fail to agree, the court will impose its own plans.    

• Physical and legal custody to both parents jointly,
• Physical custody to both parents jointly and legal custody to either parent,
• Legal custody to both parents jointly and physical custody to either parent,
• Physical and legal custody to either parent.

If the court finds that both of the parents have abandoned or deserted a child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to:

• The person in whose home the child has been living in a wholesome and stable environment; or
• Physical and legal child custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. [Courts in Mississippi presume that joint custody is in the best interests of the child unless factors change that presumption].

In making an order for custody to either parent or to both parents jointly, the court may require the parents to submit to the court a plan for the implementation of the child custody order. Joint custody may be awarded where irreconcilable differences is the ground for divorce in cases where one or both both parents make a motion for joint custody.

When a court awards joint physical and legal custody, the parties are obligated to exchange information concerning the health, education and welfare of the minor child. The court will order that the parties confer with one another in decision-making, responsibilities and authority.

Access to records and information pertaining to a minor child e.g. medical, dental and school records, will not be denied to a parent because the parent is not the child's custodial parent.

Are you a parent just starting out with divorce, and need a blueprint, or guidance, on how to put it together without it costing an arm and a leg? Start with these documents:

 

Download Mississippi Divorce Forms

[Mississippi Code - Section 93 - Chapters: 5-23, 5-24, 11-65]

Marriage Annulment - Marital Annulment

In MS divorce law, a marriage annulment (sometimes called a marital annulment) declares a marriage null and void. One needs to petition the court much like a divorce or separation, and be able to prove one of more of the acceptable grounds for annulment have been present in your marriage. An annulment will be granted for:

• Fraud and Duress - you have been cheated, threatened or forced into a marriage,
• Mental Illness - If your spouse has permanent or temporary mental illness,
• Impotency - You can file for annulment if your spouse is impotent,
• Consanguinity - marital relations between close relatives,
• Existence of a prior marriage, and
• Under influence of alcohol or drugs. 

[Mississippi Code - 93-1-1, 93-7-1–93-7-5]

Child Support

State laws have set forth the percentage of adjusted gross income that should be awarded for Mississippi child support. Those percentages are:

• One child 14%,
• Two children 20%,
• Three children 22%,
• Four children 24% and
• Five children or more 26%

Mississippi child support terminates at age 21.

During the process of divorce or application for divorce, separation or annulment, the state divorce laws mandate that the courts are required to make rulings that address the care, custody, maintenance or child support of the children. These rulings will include consideration for the needs of the respective spouses as well as the particular needs of the primary custodial parent and the needs of any children.

The court has the latitude to change any interim order, or make it/them permanent, and may order that any health insurance in effect be continued until or unless another ruling changes it. Mississippi child support is a calculation on a percentage of gross income, as opposed to net income. 21 other states use net income for their calculation.

Don't be late with child support. Whenever the court has ordered a party to make periodic child support or maintenance payments, and if those payments go unpaid for a period of at least thirty (30) days, the court may serve the payor with process and will be subject to a hearing in the case. If a marriage separation (sometimes referred to as a marital separation or legal separation) has been decreed, the court may make such further orders for the support and maintenance of either spouse and for the support, maintenance, and education of minor children, by either spouse, or out of the property of either spouse, as the court deemed appropriate. To determine an approximate amount of child support that may be due, access a child support calculator.

Mississippi divorce laws provide that in cases where a marriage annulment or marital annulment is sought, and there are children of the marriage, that those children be afforded the same rights, protections and parental financial support, including that the children are not considered illegitimate offspring of the parents, that other children of the state receive.

MS operates the Division of Child Support Enforcement, within the State’s Department of Human Services. This office assists families in several ways:

• collecting and distributing child support payments,
• establishing and enforcing child support orders,
• location of non-custodial parents,
• establishing paternity, and working with child support programs in other states to facilitate child support collection.

In Mississippi the child support collection division is called the Central Receipting and Disbursement Unit. Contact this office by calling 1-800-948-4010 (fax) (601)713-3318 or going to a local office. Other contact phone numbers include Mississippi Child Support Laws Customer Service Office at 1-866-461-4095 and the Child Support Automated Voice Response System at 1-800-434-5437.

Are you just starting out with divorce, and need a blueprint, or guidance, without it costing an arm and a leg? You will be well served by developing your own Parenting Plan, Visitation Schedule and Child Custody Schedule.

[Mississippi Code - Section 93 - Chapters: 5-23, 11-65]

Legal Separation - Marital Separation

Mississippi is one of six states that doesn't formally recognize legal separations, marital separations or marriage separations. Physically, separations occur all the time, and individuals request temporary relief, but they are still married and unable to re-marry or do anything one can do once single. The view is that you are married, or you're not. There is, however, Separate Maintenance, in which the court determines all other issues other than marital status. The types of issues that are addressed in a temporary order and an order for separate maintenance are child custody, visitation, child support,  insurance, alimony, use of  the martial home, use of marital property and vehicles, payment of debts and other issues that parties face while living separate and apart. Should the parties resume cohabitation, separate maintenance ends.

 

 

 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

Divorce Settlement - Dividing the marital assets

You are offered the opportunity to reach an agreement or divorce settlement with your spouse as part of your divorce. If you are  unable to reach an agreement on all issues, the court will decide an appropriate settlement. Mississippi statutes recognizes basic equitable distribution procedures. It requires parties to provide a written financial disclosure statement to the other party. This disclosure should be:

• A detailed written statement of actual income and expenses and assets and liabilities,
• Copies of the preceding year's Federal and State Income Tax returns, or copies of W-2's if the return has not yet been filed,
• A general statement describing employment history and earnings from the inception of the marriage or from the date of divorce, whichever is applicable.

Lock up the assets

If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.

Alimony - Spousal Support - Maintenance

In the course of a divorce proceeding, the court may award temporary or permanent spousal alimony. If the parties are unable to agree on maintenance, the court will step in and make a spousal award based on the following considerations:

• income and expenses of each spouse,
• the spouse’s health and medical condition,
• the spouse’s needs and debt obligations,
• the custodial award,
• the ages of the spouse’s,
• the standard of living while married,
• tax consequences,
• any marital fault or misconduct; and dissipation of assets. If you funded a retirement account, the court will force that retirement account to be divided between you.

[Mississippi Code - Section 93 - Chapters: 5-23]

Visitation - The kids moving between two homes

The parties have the opportunity to put together a Visitation Schedule as well as a Parenting Plan which will include the details of the children staying in the non-custodial's care. In the event you are able to produce a visitation schedule with your spouse, you should be certain to leave nothing to interpretation. Be as specific as you can including the right language in your agreement.

• How does the court define custody?
• What are the rights and responsibilities?
• Who has legal custody?
• Which holiday does the child spend with you?
• What time and where may the other parent pick the child up?
• What time should the child be returned home?
• What is the procedure to follow if either of you are running late and won't be there on time?
• How much notice should you be given if they are planning a vacation?
• How far away may the other spouse move?
• What about future partners?
• Should those partners stay overnight in front of the children?
• Or... Use a Parenting Plan and Child Visitation Schedule.

If there is no agreement, count on the court to order a visitation schedule that may include alternate weekend visitation (3-day weekends included), mid-week visitation, sharing of the children during periods of school recess -winter, spring and summer, New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years, Father's Day with Father, Mother's Day with Mother, alternate years on the children's birthdays, and open communication by phone and computer.

Be aware that you have to guide your side of the divorce. Don't rely that your attorney will think of everything. You set the course; your lawyer navigates. If you anticipate any problems with custody or visitation, we suggest you own Child Custody Strategies. 

 

Grounds for divorce

A Mississippi divorce can be filed for no-fault divorces, no fault divorces with contested issues, and fault divorces. The most common Mississippi petition for divorce is on the grounds of irreconcilable differences. Joint agreement by the husband and wife is required, or when a complaint has been personally served with process and where the defendant has entered an appearance by written waiver of process.

There are two ways to go with respect to how the details of your divorce will be finalized. You can both agree on the particulars or a court will impose what it believes satisfies all involved. Create a written agreement for the custody and maintenance of your children and the settlement of any property rights between the parties.

If the court believes it to be adequate and sufficient, that agreement can be included in the judgment. Otherwise expect the unexpected. You may, however, agree on irreconcilable difference being the cause of the end of your marriage but not be able to agree on custody and maintenance issues surrounding you and your spouse, and any children. In this case the court will decide the disputed issues and allow for the irreconcilable differences plea. [The court would require consent by both parties and an acknowledgement that they agree to allow the court to decide the contested issues]. All matters involving custody and maintenance of any child of the marriage and property rights between the parties must be resolved before the court will grant a judgment of divorce.

In a filing for divorce on the ground of irreconcilable differences, sixty days must elapse before the case is heard. However, as stated above, the court can finalize a divorce if a joint complaint of husband and wife has been entered, where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process. [the defendant agrees to the terms of divorce as presented to the court].

 

If the parties do not agree to get divorced, then one party must seek the divorce based on one of twelve recognized grounds for divorce.

In divorce proceedings based on "fault", a dissolution may be granted on any of the following:

• Natural impotency,
• Adultery,
• Being sentenced to, and residing in a penitentiary,
• Desertion of the home and family for one year,
• Habitual drunkenness,
• Habitual and excessive drug abuse,
• Habitual cruel and inhuman treatment,
• Incurable insanity [thorough examination required],
• Bigamy,
• Pregnancy by another person at the time of the marriage, if the husband did not know of such pregnancy,
• Marriages of certain blood relatives.

[Mississippi Code - Section 93 - Chapters: 5-1, 5-2, 5-7]

Residency - You must be a legal resident to file

One of the parties must have been a resident within this state for six months prior to the filing of the suit. A member of the armed services stationed and residing in the state with his spouse is (are) considered residents of the state provided they were residing within the state at the time of the separation. [If the court finds that you moved to MS merely to file divorce within this state, they may dismiss the complaint.]

 

 

[Mississippi Code - Section 93 - Chapters: 5-5, 5-11]

Mediation - Using a Mediator to resolve disputes

No mediation or counseling is required in Mississippi.

 

 

 

Grandparents Visitation

A grandparent may petition the court for visitation of his/her grandchild after being denied visitation [by a parent or guardian of the grandchild], and will be then granted visitation if it can be shown that the grandparent had established a healthy relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and that visitation rights of the grandparent with the child would be in the best interests of the child.

This state does not define best interests of the child, so courts follow case law. Considerations courts may consider include:

• The age of the child
• The age and both the physical and mental health of the grandparents
• Any emotional ties between grandparent and grandchild
• The suitability of the grandparent's home
• Any disruption caused by visitation
• The grandparent's moral fitness
• The physical distance between the child's home and the grandparent's
• The grandparent's willingness to accept the parent's child-rearing decisions
• Any undermining of the parent's discipline by the grandparent
• Any responsibilities associated with the employment of the grandparent

Grandparents lose their right to visitation if the child has been adopted by a third party unless the adoptive parent is related to the child by blood or marriage.

 

 

 

 

[Mississippi Code 93-16-3 and 93-16-7]

Waiting Period

A waiting period of 60 days after filing the joint complaint is required before a divorce can be granted.

There are no restrictions against remarriage following a divorce decree.

Back in the day, courts would put restrictions on a party when that party was guilty of adultery. In some cases they were prohibited from ever marrying again. We can hear those today that have been cheated on saying: "Oh for the good ole days".