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Mississippi Family Law FAQs

ASK THE FAMILY LAWYER by Robin White

 

Q: Why should a person hire a lawyer to draft a Last Will and Testament when he can download a form online for a fraction of the cost?

A: A person who believes he has been financially prudent in making a Will by using an inexpensive, impersonal form, may have done more harm than good. There are strict rules for the preparation and execution of Wills which, if violated, can cause the Will to be invalid or can cause unintended results that may be worse than if the maker had no will at all. Worse yet, he may never know of his own folly since the validity of the Will and the effects of the Will may not be determined until after the maker’s death. The making of a Will is a serious matter. For many people, it is a once-or-twice-in-a-lifetime event. It is worth the small financial investment to assure it is done correctly. A lawyer who is experienced in the preparation of Wills can guide his or her client through the legal minefield, assuring that the client has achieved his or her intended results and has complied with all of the legal technicalities that are not addressed in generic forms. Only then can the maker have the peace of mind of knowing he has created a valid legal document that will protect the ones he loves.

Q: Does a non-custodial parent have to pay child support until the child turns 18 or until the child turns 21?

A: Under Mississippi law, child support payments may terminate when the child is “emancipated,” which occurs when the child turns 21 or marries. The age of emancipation differs from state to state.In Mississippi, a court may also find that emancipation has occurred if the child discontinues full-time enrollment in school after turning 18 unless he is disabled; or voluntarily moves from the home of the custodial parent and establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors prior to turning 21; or joins the military and serves on a full-time basis; or is convicted and incarcerated for a felony; or cohabits with another person without the approval of the non-custodial parent. Emancipation does not terminate any obligation to satisfy any arrearage existing as of the date of emancipation. Because the issue of emancipation is fact dependent, one should contact an attorney who has experience in family law matters if one believes his or her circumstances fit into any of the categories mentioned above.


Q: When a custodial parent of minor children dies, does the surviving parent automatically get custody of the minor children?

A: There is a presumption under Mississippi law that the best interests of children will best be preserved by remaining with the surviving parent unless (1) the surviving parent abandoned the children, (2) the conduct of the surviving parent is so immoral as to be detrimental to the children, or (3) the surviving parent is unfit mentally or otherwise to have custody of the children. Unless a family member or other third party comes forward, petitions the court, and makes the requisite showing, the surviving parent will usually become the custodial parent. Even so, in all cases involving children, we recommend that our clients have a Last Will and Testament naming his or her preferred custodian of the minor children in the event of the client’s death. That way, if the surviving parent is not fit, the court will have clear direction about whom the custodial parent preferred. A Last Will and Testament may also be used to direct who will manage your children’s inheritance or life insurance benefits in the event of your death. Many parents do not trust their ex-spouses with that duty.


Q: Can a divorced person receive Social Security benefits calculated on the payment record of her former spouse?

A: Yes, but the rules are a little tricky to explain. Here goes. A person can receive benefits as a divorced spouse on a former spouse’s Social Security record if he or she was married to the former spouse for at least 10 years, is at least age 62 years old, is unmarried, and is not entitled to a higher Social Security benefit on his or her own record. In addition, the former spouse must be entitled to receive his or her own retirement or disability benefit. If the former spouse is eligible for a benefit, but has not yet applied for it, the divorced spouse can still receive a benefit if he or she meets the eligibility requirements above and has been divorced from the former spouse for at least two years. Generally, benefits cannot continue to be paid if the divorced spouse remarries someone other than the former spouse, unless the latter marriage ends (by death, divorce, or annulment), or the marriage is to a person entitled to certain types of Social Security auxiliary or survivor's benefits. The benefits paid to a divorced spouse will not affect the benefit amount paid to other family members who receive benefits on the same record.


Q: What is an “irreconcilable differences divorce” and what are the requirements to get a divorce that way?

A: Mississippi law allows a divorce on grounds of irreconcilable difference which is sometimes called “no fault.” In order to get a divorce that way, each party must consent to the divorce and must either (1) make a written agreement concerning all matters related to child custody, visitation, and support, and how to divide their assets and liabilities, or (2) consent to allow the court to decide the issues upon which the parties cannot agree. The keys to an irreconcilable differences divorce are consent and agreement. It works well when parties have few assets and no children or when the parties act reasonably and are willing to compromise. Unfortunately, many couples who are contemplating divorce are already past the point of reasonableness and compromise. If one party insists on terms that are not agreeable to the other, the other party may withhold his or her consent and the divorce cannot be granted on irreconcilable differences. In that event, one party must sue the other and claim a “fault ground.” That process will be discussed in future columns.


Q : When determining how custody of children should be awarded, what factors does the court consider?

A : The most important factor is the best interests of the children. Other factors are: (1) age, health, and sex of the children; (2) continuity of care prior to the separation; (3) parenting skills and willingness and capacity to provide primary child care; (4) employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of the parent and the children; (7) moral fitness of the parents; (8). the home, school, and community record of the children; (9) the preference of the children at the age of twelve; (10) stability of home and employment of each parent; (11) other factors relevant to the parent-child relationship. The court may award physical and legal custody to one parent, to both parents jointly, or it may award physical custody to one parent and legal custody to the other. More about legal and physical custody will be discussed in next week’s column.


Q: What is the residency requirement to get a divorce in Mississippi?

A: In order to be granted a divorce in Mississippi, one must be a “bona fide” resident for 6 months. That means that for the 6 months prior to the divorce suit being filed, one of the parties must have resided in Mississippi for purposes other than to obtain a divorce. There is an exception to this rule for members of the armed services. Members of the armed services, who are not otherwise Mississippi residents, can get a divorce in Mississippi if they were living in Mississippi at the time they separated or if their permanent residence is in Mississippi although they may currently be serving elsewhere.


Q : Does the victim of an abusive spouse have to move out of the home before he or she can file for a divorce?

A : No. It is no impediment to a divorce that the offended spouse did not leave the marital home or separate from the offending spouse on account of the conduct of the offending spouse.


Q : How does the court decide whether alimony should be awarded and what type and amount to award?

A: The consideration of alimony is one of the final steps in the divorce process and follows the equitable division of martial property. If the equitably divided marital assets will adequately provide for each party, no alimony should be awarded. If not, the court will consider the following 12 factors to determine whether to award alimony, how much alimony to award, and which type alimony to award: (1) The income and expenses of the parties; (2) The health and earning capacities of the parties; (3) The needs of each party; (4) The obligations and assets of each party; (5) The length of the marriage; (6) The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) The age of the parties; (8) The standard of living of the parties, 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; (11) Wasteful dissipation of assets by either party; and (12) Any other factor deemed by the court to be "just and equitable."


Q: If my spouse will not agree to a divorce on Irreconcilable Differences, what are my options for getting a divorce?

A: You have the option to sue your spouse for a divorce on a “fault ground” which you will be required to prove in court. Mississippi recognizes 12 fault grounds: (1) natural impotency; (2) adultery; (3) being sentenced to any penitentiary, and not pardoned before being sent there; (4) willful, continued and obstinate desertion for one year; (5) habitual drunkenness; (6) habitual and excessive use of opium, morphine or other like drug; (7) habitual cruel and inhuman treatment; (8) insanity or idiocy at the time of marriage, if the party complaining did not know of such infirmity; (9) marriage to some other person at the time of the pretended marriage between the parties; (10) pregnancy of the wife by another person at the time of the marriage, if the husband did not know of such pregnancy; (11) being related to each other within the degrees of kindred between whom marriage is prohibited by law; and (12) incurable insanity. If contested, divorces on fault grounds usually take longer and are more expensive than divorces on Irreconcilable Differences. Fortunately, many divorce cases that begin on fault grounds end up being compromised and settled on grounds of Irreconcilable Differences.


Q: In a divorce case, what factors does the judge consider when dividing the parties’ property?

A: First it should be mentioned that the chancellor will only divide the “marital” property accumulated by the parties during the marriage. What constitutes “marital” property as opposed to “separate” property will be discussed next week. In dividing the parties’ marital property, the judge considers: (1) each party’s contribution to the accumulation of the marital assets including (a) their direct or indirect economic contribution, (b) the contribution to the stability and harmony of the marital and family relationships, and (c) the contribution to the education, training or other accomplishments bearing on the earning power of the spouse accumulating the assets; (2) the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets; (3) the market value and the emotional value of the assets; (4) the value of the separate assets; (5) the tax and other economic consequences; (6) the extent to which property division may 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; and (8) any other factor which in equity should be considered.


Q: In a divorce case, what factors does the judge consider when dividing the parties’ property?

A: First it should be mentioned that the chancellor will only divide the “marital” property accumulated by the parties during the marriage. What constitutes “marital” property as opposed to “separate” property will be discussed next week. In dividing the parties’ marital property, the judge considers: (1) each party’s contribution to the accumulation of the marital assets including (a) their direct or indirect economic contribution, (b) the contribution to the stability and harmony of the marital and family relationships, and (c) the contribution to the education, training or other accomplishments bearing on the earning power of the spouse accumulating the assets; (2) the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets; (3) the market value and the emotional value of the assets; (4) the value of the separate assets; (5) the tax and other economic consequences; (6) the extent to which property division may 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; and (8) any other factor which in equity should be considered.


Q: What is the difference in aLiving Will and a Healthcare Power of Attorney?

A : A Healthcare Power of Attorney is a legal document through which one may appoint someone else to make healthcare decisions for them. The maker of a healthcare Power of Attorney may name as many alternate decision makers as he or she wishes and may elect to make their authority become effective immediately or only upon the maker’s incapacity. A Living Will is a legal document whereby the maker may state his or her wishes concerning medical treatment including whether he desires to be kept alive by a respirator, feeding tube, or any other artificial means. Several years ago, the Schiavo case in Florida raised public awareness for the need for Living Wills when the patient’s husband disagreed with the patient’s parents concerning whether the patient wanted to be kept alive on a feeding tube. If the patient had executed a Living Will prior to becoming incapacitated, her wishes would have been known and presumably followed. Under Mississippi law, the Healthcare Power of Attorney and the Living Will are combined and are known collectively as an Advance Healthcare Directive which is inexpensive to prepare, but extremely valuable if needed.


Q: When a judge is dividing the parties’ property in a divorce case, what constitutes “marital” property as opposed to “separate” property?

A: In making a division of marital assets, the chancellor first is required to classify the parties’ assets as “marital” or “non-marital,” also called “separate” assets. The determination of what is marital and what is separate plays a key role in deciding how much property each party receives. Entire books have been written on the difference in marital and non-marital assets. Marital assets, generally speaking, are the assets accumulated by the parties through their efforts during the marriage. Homes, cars, and investments purchased by a party, or the parties together, with money earned during the marriage are examples of marital assets. Separate or non-marital assets are those assets which are obtained outside the marriage. Inheritances and gifts are examples of non-marital or separate assets. But the inquiry does not end there. Sometimes, separate assets can become marital assets if they are not kept separate. That process is called transmutation.


Q : When it comes to custody of minor children, what is the difference in “physical custody” and “legal custody?”

A : Under Mississippi law, “physical custody” refers to the right to have the children reside with or be under the physical care of the custodial parent. “Legal custody” refers to the decision-making rights, responsibilities and authority relating to the health, education and welfare of the children. The court may award physical and legal custody to the parents jointly, individually, or in combination. Joint physical custody allows each parent to have significant periods of physical custody. Joint legal
custody requires the parents to share the decision-making rights, responsibilities
and authority relating to the health, education and welfare of children. An award of joint legal custody also obligates the parents to exchange information concerning
the health, education and welfare of the minor children, and to confer with one another in the exercise of decision-making rights, responsibilities and authority. Regardless of how physical and legal custody is allocated, access to medical, dental and school records may not be denied to a parent on the basis that the parent is not the children's custodial parent if that parent's parental rights have not been terminated.


Q: What types of alimony are recognized and awarded in Mississippi.

A : Mississippi law recognizes four different types of alimony: First is “Periodic Alimony” which is the traditional monthly alimony awarded for the support of the payee. Periodic Alimony generally has no fixed termination date except it
automatically terminates at the death of the payer or the remarriage of the payee. Second is “Lump Sum Alimony” which is a fixed amount, but it may be payable in a single payment or in installments. Third is “Rehabilitative Alimony” which is a
monthly payment designed to help support the recipient while he or she re-enters
the workforce. Rehabilitative Alimony is modifiable, but has a fixed termination date. Fourth is “Reimbursement Alimony” which is sometimes awarded when one spouse has put the other through professional school and then finds that the other spouse wants a divorce or has not been faithful. Next week we will discuss the factors considered by the courts in deciding the type and amount of alimony to award.


Q: Who is legally authorized to solemnize a marriage in Mississippi?

A: Assuming the parties have obtained a valid marriage license, the following officials may solemnize the marriage: (a) any minister of the gospel ordained according to the rules of his church or society, in good standing; or (2) any Rabbi or other spiritual leader of any other religious body authorized under the rules of the religious body to solemnize rites of matrimony and in good standing; or (3) any judge of the supreme court, court of appeals, circuit court, chancery court, county court, or justice court; or (4) members of the board of supervisors within their respective counties.


Q: Can partners of the same gender legally marry in Mississippi?

A: No. Any marriage between persons of the same gender is prohibited by Mississippi law and is null and void from the beginning. Even if a same-sex couple is legally married in a state that recognizes same-sex marriage, the validity of the marriage is not recognized under Mississippi law.


Q : In a divorce case, how does the court decide who gets to claim the children as dependents for income tax purposes?

A : Normally, the parent who is awarded the physical custody of the children is also awarded the right to claim the children as dependents for income tax purposes because that parent usually has the children with him or her more than 50% of the time and provides more than 50% of the children’s economic and non-economic support. There are, exceptions, however, to this general rule. The courts may also consider (1) the value of the exemption at the marginal tax rate of each parent; (2) the income of each parent; (3) the age of the children and how long the exemption will be available; (4) the percentage of the cost of supporting the children borne by each parent; and (5) the financial burden assumed by each parent in the case. If there is more than one child, the exemption may be divided. The exemption may also be alternated in different years. It is also possible for one parent to voluntarily waive the right to claim one or more of the children as a dependent for income tax purposes. That allows the parties to a divorce case to use the dependency as a negotiation point.


Q : What are some of the primary reasons to have a Last Will and Testament?

A : Through a Will, a person may designate who inherits his property and in what proportion. He may also designate his own personal representative to carry out the terms of the Will. Those opportunities are lost by a person who has no Will. Many people mistakenly believe that a Will is only important for those people with large estates. That is not true. Wills are also important for anyone with children, especially children under twenty-one. Through a Will, a person may designate a guardian for his minor children in case the children’s other parent does not survive or is not suitable to be the children’s guardian. That is huge! He may also decide who will be entrusted with the children’s inheritance. What could be more important than that? A Will may also prevent grown children from arguing over who gets what. I have seen brothers and sisters develop lifelong grudges toward one another and families split over how the personal effects and property of their parents were distributed. Sadly, those families may have stayed in tact if the parents had only taken the time to make Wills dividing their belongings. Making a Last Will and Testament is usually not a complicated or expensive exercise and it will not make someone die any sooner. However, it will provide the peace of mind of knowing that you have taken steps to make life easier for your survivors.


Q : With all the information and forms on the internet, why should one hire an attorney to handle a simple divorce?

A : One should hire an attorney to handle a divorce for the same reason he should hire a surgeon to perform surgery—to assure the procedure is performed correctly and to reduce the possibility of future complications. Just as an improperly performed surgical procedure may not lead to the healing for which it was intended, a divorce decree improperly prepared may not resolve all of the legal issues for which it was intended. Likewise, a surgical incision may become infected if not properly cared for, just as a legal issue that is not properly resolved may fester and ultimately rupture, causing serious and expensive legal consequences that were completely unforeseen by the parties but which could have been foreseen and avoided by someone trained in and knowledgeable about divorce law. Divorce has become common, but that does not mean it has become simple. It may not be brain surgery, but it requires more skill and knowledge that clipping one’s nails. It is more like removing a gall bladder.

Mississippi Family Law Attorneys serving all of Rankin County - Brandon, Madison County - Madison, Ridgeland, Canton, Gluckstadt, Hinds
County - Jackson, Mississippi in the areas of divorce, child custody, child support, child visitation, property division, alimony, annulment,
paternity, grandparent visitation, adoption, guardianships, conservatorships, estate probate, and appeals.

John Robert White, PA 1052 Highland Colony Parkway, 100 Concourse Building, Ridgeland, Mississippi 39157 Toll Free (866) 605-9811 Tel: (601) 605-9811 Fax: (601) 605-9836