Frequently Asked Questions
WHAT DOES IT TAKE TO GET A DIVORCE IN MISSISSIPPI?
In Mississippi there are 12 grounds for divorce found in the Mississippi Code (our state laws, often referred to as "statute") in section 93-5-1. They are:
1. Adultery
2. Bigamy
3. Wife's pregnancy by another at the time of the marriage and the Husband does not know that the child is not his
4. Habitual Cruel and Inhumane Treatment
5. Habitual Drunkenness
6. Habitual Drug Use
7. Desertion
8. Imprisonment for more than one year without pardon
9. Natural Impotency
10. Incest
11. Insanity at the time of the marriage
12. Institutionalized for insanity during the marriage
The most common of these grounds used are Adultery, Desertion, Habitual Cruel and InhumaneTreatment, Habitual Drunkenness and Habitual Drug Use.
However, quite often when a person does not have grounds for a divorce and the spouse does not want a divorce the person seeking the divorce generally uses habitual cruel and inhumane treatment in an effort to get their spouse into court and to understand that they no longer wish to live with the demand to give them a divorce on the grounds of "Irreconcilable Differences".
"Irreconcilable Differences" is sometimes called the "13th" ground for divorce or “No-fault Divorce”. However, in order to get a divorce on this ground BOTH parties must agree that they do want a divorce because their marriage is completely broken and beyond repair. An IrreconcilableDifferences divorce requires a 60-day waiting period, before it can be granted by a Judge, during which time both parties must come to an agreement on custody and child support, if there are any children of the marriage, as well as the division of property and marital assets.
IS THERE A LEGAL SEPARATION IN MISSISSIPPI?
No. Mississippi only offers divorce and what is called separate maintenance. The difference between the two is as follows:
DIVORCE:
There is a complete severance of the marriage and the husband and wife are no longer married and live apart free from interference from the other. The parties themselves or the Court will make a division of the assets and debts accumulated during the marriage and divorce them equitably (not necessarily 50/50). The parties or the Court, if the parties can not decide, will divide the furniture and furnishings and determine the amount of child support and/or alimony. If there is real property(house or land) the court will divide the property or the parties will decide who shall be entitled to the ownership of the house and the debt on the house.
SEPARATE MAINTENANCE:
The couple will stay married and there will be NO division of the assets or the debts of the parties.In this type of action the person seeking to have the other party evicted from the home must show the same grounds for separate maintenance as you do for a divorce. The Court will require the offending party to leave the home and to pay maintenance to the innocent party. Maintenance is child support and spousal support which can come in different forms, such as house payments, cash payments, car payments, etc.
In this action you may not sell your property, transfer it to someone else and you may not let it goto waste just to spite the other person.
MAJOR POINT:
Both types of litigation COST about the same. Therefore, you must decide if you really want a divorce or to stay married indefinitely, but live apart.
HOW LONG WILL IT TAKE TO GET A DIVORCE?
If the parties have filed a Joint Complaint for Divorce which is an application to the Court together stating that they want a divorce on the grounds of irreconcilable differences (no fault), and then depending on whether you have children, you will draft and file a document called a Child Custody and Property Settlement Agreement. This document must be completed, initialed and signed by both parties before it can be filed. Once this is filed, the parties must wait 60 days and then they are eligible for a divorce. You are eligible because 60 days has elapsed but it may be on a weekend or a holiday. Some Judges require lawyers to get an appointment to get the Final Judgment of Divorce signed. If everything goes smoothly and both parties agree, an irreconcilable differences divorce should take between 60 and 75 days from the time the Joint Complaint is filed.
The time that it takes to get a divorce where one party files a divorce suit against the other party is totally unpredictable. It depends on what there is to fight about. For example, if the parties have no children, no real property and they are already living separately, and the only issue is who gets the money and who gets what possessions, it should not take much longer, if any longer, than the no fault divorce. If the parties are fighting over everything, kids, house, cars, savings, then it could take a long time. Some can go as long as two (2) years depending on the court calendar and the needs of the party.
HOW MUCH CHILD SUPPORT DO I HAVE TO PAY (OR SHOULD I EXPECT TO RECEIVE)?
Child support in Mississippi is based on our state statute, Mississippi Code Ann. Section 43-19-101.Child support is based on the adjusted gross income of the person who will be paying the child support. In other words, take your gross pay, subtract your taxes, medicaid, social security, and any mandatory retirement (state and federal employees) then if you are required to pay union dues or uniform costs (whatever is a requirement to do your job) then the remaining funds are multiplied by the following:
one child - 14%
two children - 20%
three children - 22%
four children 24%
for any children more than four the rate is still 24%.
If both parties are going to share joint legal and physical custody then child support will be paid with each party paying the other the same amount of child support and the difference is the actual payment. For example: John and Sally have two children. They will each have their children one week each. Sally will pay John 20% of her adjusted gross income to John and John will pay Sally 20% of his adjusted gross income. Whichever payment is higher, the lesser payment will be paid to the appropriate recipient (the party with the lower income).
IS MISSISSIPPI AN ALIMONY STATE?
YES! There are four (4) types of alimony in Mississippi. They are:
Rehabilitative: This type of alimony is awarded to someone who will need some time adjusting to the work force due to either being a homemaker or because they have been a student. Some reason has kept them from being able to enter the workforce at a level of optimum income based on their educational background.
Reimbursement: This alimony is awarded to the spouse who worked while the other party went to school to become a doctor, lawyer, CPA, engineer or some other type of professional school that allowed him or her to make a substantial living and then after graduating and getting a good job, decides to trade their spouse in for a younger, newer model. The Court will allow the supporting spouse reimbursement for the time and money spent sending the husband/wife to professional school and putting their own interest aside, either to support that spouse or while raising a family.
Periodic: This is alimony paid on a monthly basis to the spouse who has been involved in a lengthy marriage and is now too old or unable to become re-educated and needs support. This alimony can be modified by the Court either upwards or down depending on the ability of the paying spouse and the needs of the receiving spouse. Periodic Alimony is generally given in a marriage lasting beyond the 20 year mark and where the wife has had a traditional stay-at-home role. It should be noted that men can also be candidates for this type of alimony as well. The purpose to this type of alimony is to balance the equity of income in the parties and keep the parties living comparable to how they were living as a couple.
Lump Sum: This is money paid to a spouse in a large sum or to be paid over a period of time. For example: John is to pay Sally $50,000.00 however, it will be paid at the rate of $500.00 per month on the first day of each month until paid in full. This type of alimony may not be modified and is taxable to the recipient (the party receiving the alimony payment) and deductible to the payor (the person paying it). This alimony is to even the estates of the parties and to compensate the party who has a lower chance of reentering the work force at a level comparable to the other spouse. Do not confuse this alimony with a division of the marital assets. Marital assets are the possessions, materials and things which were acquired during the course of the marriage.
For more information, call the law offices of M. Judith Barnett at 601.981.4450
Other Useful Information
Factors to consider in awarding alimony
ARMSTRONG V. ARMSTRONG 618 SO 29 1278 1993
FACTORS CONSIDERED IN MAKING ALIMONY AWARDS
1. The income and expenses of the parties;
2. The health and earning capacity 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; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.
Factors in considering a reasonable award of alimony
HEMSLEY V. HEMSLEY 639 SO. 2D 909
IN DETERMINING A REASONABLE AWARD FOR ALIMONY, THE FOLLOWING FACTORS SHOULD BE CONSIDERED
1. The health of the husband and his earning capacity;
2. The health of the wife and her earning capacity;
3. The entire sources of income of both parties;
4. The reasonable needs of the wife;
5. The reasonable needs of the child;
6. The necessary living expenses of the husband;
7. The estimated amount of income taxes the respective parties must pay on their incomes;
8. The fact that the wife has the free use of the home, furnishings and automobile, and
9. Such other facts and circumstances bearing on the subject that might be shown by the evidence.
Factors to consider in determining an award of custody
ALBRIGHT V. ALBRIGHT, 437 SO.2D 1003 (Miss1983)
FACTORS TO CONSIDER IN AWARDING CHILD CUSTODY
1. Polestar consideration is the best interest and welfare of the child;
2. Age of the child;
3. Health and sex of the child;
4. Determination of the parent that has had the continuity of care prior to the separation;
5. Which parent exhibits the best parenting skills and which has the willingness and capacity to provide the primary child care;
6. Employment of the parent and responsibilities of that employment;
7. Physical and mental health and age of the parent;
8. Emotional ties of parent and child;
9. Moral fitness of parents;
10. The home, school and community record of the child;
11. The preference of the child at the age sufficient to express a preference by law;
12. Stability of home environment and employment of each parent and other factors relevant to the parent/child relationship.
Factors in determining a material change in circumstance for custody
CALDWELL V. CALDWELL 579 SO 2D 543 (Miss1999)
FACTORS IN DETERMINING MATERIAL CHANGE IN CIRCUMSTANCES
1. Increased needs caused by advanced age and maturity of the children;
2. Increase in expenses;
3. Inflation factor;
4. The relative financial condition and earning capacity of the parties;
5. The health and special needs of the child, both physical an psychological;
6. The health and special medical needs of the parents, both physical and psychological;
7. The necessary living expenses of the father;
8. The estimated amount of income taxes the respective parties must pay on their incomes;
9. The free use of a residence, furnishings and automobile; and10. Such other facts and circumstances that bear on the support subject shown by the evidence.
Factors to consider in a change of custody from one parent to another
TUCKER V. TUCKER, 453 SO.2D 1294 (MISS.1984)
TO CHANGE CUSTODY FROM ONE PARENT TO ANOTHER
1. A material change in circumstances under which the child is living with the custodial parent;
2. The living conditions with the custodial parent are adverse to the child’s welfare;
3. The Chancellor should find that the overall circumstances in which a child lives have material changed and are likely to remain materially changed for the foreseeable future and, of course, that such change adversely impacts upon the child;
4. What is in the best interest of the child to change custody, for the final analysis is the best interest and the welfare of the child which are the Pole Star considerations.
Factors to consider in making a determination of an award of tax exemption of a child to a non-custodial parent
LOUK VS. LOUK, 761 So.2d 878, 884 (Miss.2000)
FACTORS THAT DETERMINE WHETHER TO AWARD TAX EXEMPTION TO A NONCUSTODIAL
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;
4. the percentage of the cost of supporting the children borne by each parent; and
5. the financial burden assumed by each parent under the property settlement in the case.
Factors to be considered in determining each party's contribution to the accumulation of property
FERGUSON V. FERGUSON 639 SO. 2D 921(Miss. 1994)
FACTORS TO BE CONSIDERED IN DETERMINING CONTRIBUTION TO THE ACCUMULATION OF PROPERTY
1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contributions are as follows:
a. Direct or indirect economic contributions to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and,
c. Contribution to the education, training or other accomplishments bearing on the earning power of the spouse accumulating the assets.
2. The decree of which each has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not originally absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences and contractual or legal consequences to third parties, of the proposed distributions;
6. The extent of which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity;
8. Any other factor which in equity should be considered.
Forms
Download, complete and return by email or by fax to 601.981.4717.
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