If you are contemplating or seeking a divorce, and you want a team who understands the sensitive nature of this experience and will guide you throughout the entire process, listening to your concerns and keeping you informed, Bankhead Law Firm is here to help you.
Whether you are seeking a divorce on fault-based grounds, such as adultery or abuse, or whether you and your spouse have agreed to a divorce, known as an irreconcilable differences divorce, we will guide you through the process as efficiently as possible. The entire process includes property division and could include alimony, and if there are children, child custody and visitation rights and child support.
If you have already begun the process and are looking for legal services at any stage, Bankhead Law Firm can assist you. Please contact us today if you need legal services in any of the following areas:
Mississippi does not recognize unilateral, no-fault divorce, that is, one spouse cannot individually file for and obtain a divorce without stating a fault-based ground for divorce.
Mississippi does recognize a no-fault divorce, called an irreconcilable differences divorce, where two spouses can agree to a divorce without having to show any fault on the part of either spouse.
For an irreconcilable differences divorce, a couple can come to a mutual agreement on property division, alimony, and if there are children, child custody, visitation, and child support, and present this agreement to the court, who will approve it if it is fair. If the couple cannot agree on one or more of these issues, the court will make the decision based on a variety of factors that he or she must legally consider. A divorce based on irreconcilable differences must be on file for at least 60 days before the divorce can be granted.
A fault-based divorce operates like a lawsuit, with one spouse filing a complaint for divorce against the other spouse in Chancery Court and essentially having a trial before the Chancellor. The fault-based grounds for divorce that are recognized in Mississippi are the following: adultery, a wife’s pregnancy by another at the time of the marriage, bigamy, habitual cruel and inhuman treatment, habitual drunkenness, habitual drug use, desertion, imprisonment, natural impotency, insanity at the time of the marriage, institutionalization for insanity during the marriage, and incest. By far the most commonly cited grounds for divorce are adultery and habitual cruel and inhuman treatment, which includes both physical and emotional abuse.
Mississippi uses an equitable distribution system for dividing marital property in a divorce. “Equitable” does not necessarily mean “equal.” It more accurately means “fair.” The court looks at a variety of factors in distributing marital property between the two spouses.
Marital property is any property, money, or assets obtained or acquired during the marriage, regardless of whose name is on the title or bank account. Separate property is property, money, or assets owned or acquired before the marriage or by way of inheritance or gift during the marriage. Separate property is not included in the marital estate but is the individual spouse’s own separate property. However, separate property can become marital property and be included in the equitable distribution of the marital estate if it is combined or commingled with marital property in such a manner that it cannot be distinguished from the marital property. Separate property can also become marital property if it is used by the family for family purposes.
After determining what property is marital and what property is separate, all the marital property is given a value. With money, this is easy, but with property, the fair market value must be determined, which sometimes must be done by experts. Once the marital estate is valued, the court considers all legally-relevant factors and equitably divides the estate.
Alimony is related to property division. If after the equitable division of the marital property, one spouse is nevertheless economically disadvantaged, that spouse may receive some form of payment from the other spouse, called alimony. There are four kinds of alimony in Mississippi, and more than one kind may be granted.
Permanent alimony is a set amount paid periodically and is ongoing and permanent. However, it is automatically terminated at the death of either spouse or at the remarriage of the receiving spouse. It is also modifiable if material circumstances change.
Lump sum alimony is one payment at one time and is not modifiable or terminable by death or remarriage. This kind of alimony is most commonly used to address any unavoidable inequities in the property division, such as if one spouse owns a business that cannot be divided.
Rehabilitative alimony is usually paid periodically over a set period of time in order for one spouse to get back into the workforce, such as by going back to school or training for a job. It is modifiable on a showing of a material change in circumstances.
Reimbursement alimony is awarded when one spouse during the marriage supported the other spouse through school and when this support cannot be compensated through property division. It is a lump sum, one time payment, is not modifiable, and does not terminate at death or remarriage.
Clild, Custody, and Visitation, Including Grandparent Visitation
Mississippi recognizes two types of custody – physical and legal. Physical custody simply means the child physically lives with the parent. Legal custody means the parent makes the decisions regarding every aspect of the child’s life, including health, education, extracurricular activities, and religious upbringing. In awarding custody, the court will consider a variety of factors to determine what is in the best interests of the child. The court may award any combination of custody, such as physical and legal custody to one parent, physical custody to one parent and legal custody to the other parent, joint physical custody to both parents but sole legal custody to one, or joint legal custody to both parents but sole physical custody to one.
Visitation rights arise when one parent is granted sole physical custody of the child. The spouse without physical custody has a right to visitation with the child. Visitation schedules vary widely, but common arrangements may include the noncustodial parent spending every other weekend with the child, alternating holidays between parents, and the child spending a portion of the summer with the noncustodial parent.
Mississippi permits a court to grant grandparent visitation in two situations. First, when a parent dies, does not have physical custody, or loses parental rights, that parent’s parents may petition for visitation. Second, grandparents may petition for visitation if the three following factors are present: (1) the grandparent had a viable relationship with the child, which means that either the grandparent provided some financial support for at least 6 months and had frequent visitation, including overnights, for at least one year, (2) the parent (the grandparent’s own child) unreasonably denied the grandparent visitation, and (3) visitation would be in the child’s best interests.
Mississippi, like most states, follows a specific set of guidelines set by the state legislature in determining the amount of child support to be paid by the noncustodial spouse to the custodial spouse. The guidelines set out specific percentages of the noncustodial spouse’s net income to be paid based on how many children are being provided for. Depending on the noncustodial parent’s net income per year, sometimes the guidelines are strictly followed, while sometimes the court has more discretion over the amount to be paid.
The child support guideline amounts cover the child’s basic living needs – food, clothes, educational and extracurricular expenses. The court may award additional child support to cover other needs, such as medical expenses, health insurance, college education, and life insurance.
The duty to pay child support continues until the child turns 21 or until the child becomes emancipated, which may occur when the child marries, when the child quits full-time enrollment in school and obtains full-time employment, or when the child voluntarily moves out of the custodial parent’s home and establishes independent living arrangements and obtains full-time employment.
Mississippi does not recognize legal separation, but a spouse may apply for a separate maintenance order if his or her spouse has left the marital home without good cause. A separate maintenance action is an alternative to divorce. In order for the court to grant an award of separate maintenance, the asking spouse must show a financial need for support. The court will look at both spouse’s financial positions in making its decision. If the absent spouse returns at any time to live with the remaining spouse in the marital home, the separate maintenance order is automatically dissolved
A prenuptial agreement is simply a contract – a contract made in contemplation of marriage. Prenuptial agreements are usually used to pre-determine how a couple’s property and assets would be distributed, as well as provide for spousal support, in the event of divorce.
Certain requirements must be met in order for a court to uphold a prenuptial agreement. First, both spouses must be able to deliberate over the agreement for a reasonable time before signing it. A court will not uphold an agreement that was presented to the spouse one day or one week before the wedding date. Second, each spouse must be represented by a separate, independent attorney in making the agreement. One attorney cannot represent both sides to the contract. Third, each spouse must fully disclose his or her financial situation in making the agreement. Last, the agreement must not be fundamentally unfair and must be stated in plain language