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Jeremey McNinch

FAQ

We answer questions from clients and potential clients all the time. There is no way to address every possible question in a website article, but the questions below come up frequently. Of course, if you have a specific question, even if it appears on this page, you should consult with a licensed attorney before taking any actions or making any decisions. The information provided on this page is for informational purposes only, and by reading it, you agree that you will not rely on it in taking any actions or making any decisions about your specific situation.


1. Is there legal separation in MS? No. MS acknowledges separate maintenance, which is a judicial command for a spouse who has abandoned the home to either come back or send money to support the family.

2. My divorce papers say I can’t have someone spend the night at my house if we are unrelated by blood or marriage – that’s just form language and has no legal effect, right? No, that is incorrect. A Mississippi chancery court judge has the discretion to find a party in contempt for failing to comply with the court’s judgments and orders. That means the violating party could be fined or incarcerated or both.

3. Will I be forced to pay the other side’s attorney’s fees? Possibly, depending on the facts and type of your case. For example, in a contested divorce case, the question is whether the party requesting their fees has the ability to pay them without assistance. In contrast, if a party is found in contempt of a judgment or order of the court, there may be a better chance the party will be ordered to pay the opposing party’s fees, regardless of whether inability to pay is established.

4. Does MS have “no-fault” divorce? It depends on what your definition of the phrase, “no fault” is. In Mississippi, a party can get an Irreconcilable Differences divorce, but the other party must agree to get a divorce. Take a look at the Mississippi Divorce page for more details.

5. Is it true that my spouse can refuse to give me a divorce? Yes.

6. Can my spouse insist on a transfer of property in exchange for their agreement to give me a divorce? Yes.

7. Is alimony automatic in Mississippi? No.

8. If I fail to pay child support, can I be incarcerated? Possibly.

9. Why does it cost so much to get a divorce even if I don’t have much property to divide and I don’t have kids? The price an attorney charges to do your divorce depends on many things which are individual to the attorney with whom you are talking. Our firm quotes prices based on complexity of the facts and laws unique to each case, plus a prediction, based on previous experience, of the amount of work required on the case.

10. Is alienation of affection a real lawsuit? Absolutely.

11. Is same sex marriage legal in Mississippi? Yes.

12. Is criminal conversation a real lawsuit in Mississippi? No, it was abolished in the MS Supreme Court opinion, Saunders v. Alford, 607 So.2d 1214 (Miss. 1992).

13. Is adultery a crime in MS? Acts of repeated adultery can be prosecuted. “If any man and woman shall unlawfully cohabit, whether in adultery or fornication,” they may be prosecuted. See Mississippi Code Annotated Section 97-29-1.

14. I got a divorce a few years ago and I want to change where my ex and I meet to drop off the kids for visitation and how much visitation my ex will get – how do I get this changed? To change a judgment or order of a MS court, in general, you will have to file a lawsuit requesting the change, even if the opposing party agrees to the change. The proof required depends on the exact nature of the case, but you will generally be required to show that there has been a material change in circumstances since the last Judgment.

15. Are grandparents entitled to visitation with the grandchildren? Yes, in limited situations. See Mississippi Code Annotated Section 93-16-3.

16. What is the difference between physical and legal custody? Physical custody refers to right of a person to have the children physically; legal custody refers to the right of a parent to make decisions on behalf of the child.

17. Can physical custody be shared? Yes.

18. Can legal custody be shared? Yes.

19. My spouse just got a professional degree and told me she wants a divorce. Is the value of her degree marital property? Probably not, but if you contributed to the expenses of her education, including living expenses, you might be entitled to reimbursement alimony.

20. Is joint custody a good idea? It depends on the facts of your case. If the divorce will be on Irreconcilable Differences, and it is likely that you and your spouse can get along when it comes to parenting decisions after the divorce, joint custody might work for you. Things to consider are work schedules, the places where you and your spouse will live after the divorce, plus the most important factor – what is best for the children. In an Irreconcilable Differences divorce case, the judge can grant joint custody only if both parties request joint custody. See Mississippi Code Annotated Section 93-5-24(2). In other cases, joint custody may be awarded, in the discretion of the judge, where one or both parents requests joint custody. See Mississippi Code Annotated Section 93-5-24(3).

21. Is the mother of a child automatically preferred in a custody case? No.

22. What is mediation? Mediation is a form of “alternative dispute resolution.” In general, it is an agreed-upon effort to settle a case out of court, conducted by a trained professional. The results of mediation are not binding unless they are agreed upon in a written settlement agreement.

23. Does mediation work? Mediation can be very, very effective, and it is generally worth the effort, especially if settlement negotiations are at an impasse.

24. How can you control which judge I will get in my case? We can’t. When a family law case is filed, one of the judges in the district is assigned at random, except in extremely limited situations.

25. I got a divorce a few years ago – will the judge be the same in my contempt and modification case? Yes, under the Mississippi Supreme Court’s opinion in Tollison v. Tollison, 841 So.2d 1062 (Miss. 2003) the Chancery Court judge who handled the divorce will handle subsequent litigation involving your case.

26. How long will my case take to get finished? It is impossible to say how long your case will take. There are some general guidelines of how quickly it can be completed, but they do not dictate when a case mustbe finished. An Irreconcilable Differences divorce can be granted 60 days after the Complaint is filed with the Chancery Court. See Mississippi Code Annotated Section 93-5-2. That does not mean your ID divorce will be granted in 60 days, however. Other matters, like modifications of Judgments, contempt of court actions, requests for temporary relief in divorce cases, and others can be taken to court more quickly, under Mississippi Rule of Civil Procedure 81, but there is no guarantee the court will have a place on its docket for your case within the time frame(s) stated in the rule. Except for certain kinds of actions, the court’s docket is set on a first-come, first-served basis. The point is, your attorney generally cannot control how long a case will take because he or she has no control over (1) the court’s docket; (2) what the opposing party will do; or (3) what the opposing attorney will do. All of those things can make a case drag on and the cost of your case go up, so patience is absolutely necessary when you are involved in a family law case.

27. My child is twelve years old and says she wants to live with me instead of my ex-wife. Isn’t it true that the judge has to let my child live with me? No, that is not true. The court should consider the wishes of a child over twelve years old in a custody case, but the child’s wishes are not controlling.

28. Can I take the Fifth Amendment if I am asked to admit that I committed adultery? It depends on how the question is phrased, but because “unlawful cohabitation” is a crime in Mississippi, a party might be entitled to “take the Fifth” and invoke the constitutionally-guaranteed right against self incrimination when asked about the commission of adultery.

29. My ex and I have a child together, and he signed the birth certificate at the hospital before our relationship got bad. Does he have to pay child support? An absent parent is required to pay 14% of his or her adjusted gross income in child support. See Mississippi Code Annotated Section 43-19-101.

30. My girlfriend and I live together, and we don’t like the idea of getting married. We are committed to each other, and we will probably accumulate a great deal of property together. Some of the property might be titled in my girlfriend’s name, but I will be helping her pay for it. If we ever break up, do I have a claim to the value of the property? Maybe. Unlike married couples, there is currently no right for cohabitants to get property division after living together. A written, executed Cohabitation Agreement could possibly give the parties the right to property division in that scenario, however.

31. What is standard visitation? There is no such thing as standard visitation. Judges sometimes order very similar visitation schedules, but there is no statute or case that sets out any specific child visitation schedule that is required under Mississippi law. Like families, visitation arrangements can be very different, and what works for one family might not work for another.

32. My neighbor said she got everything she wanted in her divorce, and her lawyer really took her husband to the cleaners. Can you guarantee you can do this for me? We will work diligently to get everything clients want, but, unfortunately, we can’t guarantee we will be successful.

33. What should I wear to court? Business casual attire is best.

34. My case is set to be heard at the same time as another case. Why do they do it this way? Cases get settled out of court very frequently, so the court administrator may set more than one action for the same time. If the first case is settled before trial, the second case will go first, and so on.

35. I have never been to Mississippi, but I am being sued for alienation of affection there – how is that possible? The short answer is, an out of state defendant in an alienation of affection case might or might not be subject to jurisdiction in Mississippi. A recent Mississippi Supreme Court opinion, Knight v. Woodfield, 50 So.3d 995 (Miss. 2011), discusses this idea. A couple of Mississippi federal court opinions also consider this issue, Bailey v. Stanford and Thomas v. Skrip.

36. The opposing party’s attorney sent me discovery questions that ask very personal questions. Once I fill these out, will the judge read them? It is fairly unlikely that the judge will ever see your discovery responses, although it is possible. The judge doesn’t sit around in his or her office reading discovery responses because, for one thing, discovery responses are usually not filed in the court record. The judge also has no reason to read discovery responses unless they are asked to, or if they become an issue in the case.

37. How does a court decide child custody? The most important consideration in a custody case is the best interests of the child. The Mississippi Supreme Court set forth a test to assist judges in child custody cases in Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). Those factors include the following: (1) the age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parents and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship.

38. Do you recommend trying to settle out of court? It depends on the specific facts of a case, but settlement can be a very effective use of resources. Many people believe that, even if they can’t get everything they want in their case, an agreement is better than taking a chance on what a judge will decide based on a limited snapshot of the facts, which is what a trial is, ultimately.

39. What are the advantages of going to court as opposed to trying to settle? Keep in mind that family law settlements are contracts, negotiated like any others, except they involve much more personal subjects. In some cases, if the other side of a dispute isn’t interested in settling a case, then it doesn’t make sense to spend a lot of time making settlement offers. Sometimes, like when the parties can’t agree on anything, going to court is the only option. Like the old saying goes, “that’s why they make courthouses.” But, if all parties are interested in settling out of court, working hard to negotiate a settlement sometimes makes sense. Again, many people believe that, even if they can’t get everything they want in their case, an agreement is better than taking a chance on what a judge will decide based on a limited snapshot of the facts, which is what a trial is, in the end.

40. If I hire you, will you handle every aspect of my case? No, we work as a team, and experience demonstrates that this approach is beneficial to clients.

41. Will you give me your cell phone number? Maybe. If we do give a client our cell phone numbers, we ask that the numbers not be used excessively or after normal business hours. If there is an emergency where someone’s safety is at risk, it is always recommended that law enforcement be called immediately. We can’t help with a physically dangerous emergency, unfortunately.

42. If my spouse doesn’t agree to an irreconcilable differences divorce, what can I do to get divorced? Unfortunately, absent an agreement to proceed on irreconcilable differences, a divorce can be granted in Mississippi only if one of the spouses has a reason listed in Mississippi Code Annotated Section 93-5-1.

43. What is a Summons? A summons is a legal document, issued by the clerk of a court, which is served on a defendant in a lawsuit. This document either commands a written response to a Complaint or instructs the recipient to appear at a certain time and place to defend against a civil action.

44. I just got served with a Complaint. What is this? A Complaint is the document that, along with a Summons, notifies a defendant to a civil action that a claim has been filed. In some situations, a Complaint must be responded to in writing; in others, the defendant need only show up at the time and place identified in the Summons to defend against the Complaint.

45. What is a Supboena ad Testificandum, a Trial Subpoena, or a Deposition Subpoena? All three of these Subpoena types command the recipient to attend and give testimony at a particular proceeding, such as a trial or deposition, as stated in the Subpoena. The Subpoena should be served on the recipient by someone other than a party, over the age of eighteen (18), and the recipient is entitled to the payment of witness fees ($1.50 per day of testimony and five cents per mile going to an returning from the courthouse to their home) along with the Subpoena. See Mississippi Rule of Civil Procedure 45 and Mississippi Code Annotated Section 25-7-47.

46. My spouse and I agree that we want a divorce, but we can’t agree who gets custody of the kids or who gets our property. Can we still get a divorce if we don’t have a fault-based ground? Absolutely. Mississippi Code Annotated Section 93-5-2 allows parties to submit some, or all, of the issues to a court to decide when the only agreement is to get a divorce.

47. My husband ran up a ton of credit card debt, and he has terrible credit. Will my credit be affected because he has failed to pay his bills on time? Will I be responsible for these debts if we get a divorce? Not necessarily. In general, prior to divorce, a married person’s obligation to pay debts is governed by the contract between that person and the creditor. Sometimes, spouses have joint debts and they agree that one of them is responsible for making the payments each month. If the spouse fails to pay, then the other spouse’s credit could be affected, due to the joint obligation under the contract creating the debt. In some situations, debts are in one spouse’s name and they were incurred for marital purposes, like paying for groceries, day care, vacations, medical expenses, etc. Upon divorce, the court might order both parties, to pay the debts jointly after the divorce.

48. My husband has worked our entire marriage, and I have stayed home to be with the children and take care of our family. All of our assets are in his name. If we get a divorce, will I be left with nothing? Probably not. Mississippi law views the contribution of spouses who work inside the home, as homemakers, as being equal to that of spouses who work outside the home and earn money.

49. Am I automatically entitled to one-half of my spouse’s assets at divorce? Not automatically. In Mississippi, marital property is equitably divided, using factors set forth by the Mississippi Supreme Court in Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994). It could be that spouses agree to equally divide assets in an Irreconcilable Differences settlement, or that a judge orders an equal division of assets, but equitable division does not necessarily mean equal division. Community property states, like Louisiana and California, on the other hand, view the marriage relationship as a “community” and each spouse is assumed to have a one-half, undivided interest in all the property of the community. That property is divided equally upon divorce.

50. Am I required to catch my spouse in the act to prove adultery? No. In general, direct evidence of adultery, like photos, video, or testimony, is the strongest evidence of adultery, but it is not necessary.  Circumstantial proof can also be sufficient to prove adultery. To prove adultery circumstantially, the plaintiff must show (1) adulterous nature (infatuation or a proclivity to adultery) and (2) reasonable opportunity to satisfy proclivity or infatuation.

51. I am being sued for divorce. I want to sue my spouse for divorce, too. Can I do that? Yes. Under Mississippi law, a party can get a divorce from his or her spouse if there is a statutory reason for a divorce, like desertion or habitual cruelty, or if both spouses agree. Therefore, for example, if one spouse is guilty of adultery, he or she can be sued for divorce based on that ground. If the that person – the Plaintiff spouse – is also guilty of adultery, then a counterclaim could be filed against him or her. Two major points here: (1) a divorce can be granted to only one person, the one who is “most innocent”; and (2) there is an old line of thinking that when both parties are guilty of marital fault, the chancellor should not grant a divorce to either of them. This concept, known as “recrimination”, is still a valid defense in Mississippi, but it is very rarely honored. It used to be required, but a statute makes clear that it is not any longer.

52. Can I record conversations with my spouse in our home? Yes, although there could be some argument about whether the tapes are admissible in court.

53. How can you make sure I get a particular judge when I file my case? We can’t. The Mississippi Chancery Court system has jurisdiction over most family law cases, and one of the particular county’s Chancellors will be assigned to the case at random when the case is filed. In most family law matters, after a Judgement is entered, the Chancellor will typically have continuing jurisdiction.