Topics Surrounding Divorce
Unfortunately, a divorce case often involves more than just divorce. There are other issues that come up during the process. We’ve listed some typical concerns that our clients face.
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Child Custody, Visitation, and Support
In a divorce involving children, issues relating to them are probably the most difficult to resolve. These issues include custody, support, and visitation, among others.
There are two kinds of “custody” – physical and legal. Physical custody is the right of a parent to physically have a child with him or her. On the other hand, legal custody is the right of a parent to make decisions on behalf of a child. Custody is awarded based on the best interests of the child.
Custody can be awarded to one parent or to both parents jointly. For example, a parent can have physical custody, meaning they have the right to have the child, except when the other parent has visitation. Physical custody can also be joint, meaning the child stays with each parent roughly the same amount of time. Legal custody can also be vested in one of the parents alone or to both parents jointly. There are too many pros and cons to each of these arrangements to discuss here, but the point to take away is there are many possible scenarios, and what is right for another family might not be right for your family. In the end, all families are different, and what works for each one is probably different, too.
Visitation means times a noncustodial parent is entitled to spend with children. If one parent is awarded custody of the children, the other parent is awarded structured visitation. Usually, visitation is granted every other weekend and on alternating holidays.
Like custodial arrangements, the “correct” visitation arrangement varies from family to family. We write custom visitation schedules all the time, and there is no such thing as standard visitation, no matter what you have heard. It is true that a particular judge might frequently award the same type of visitation, but there is no statute out there dictating that they do so. It is simply a matter of convenience. The child’s best interests govern a court’s decision on visitation, as well.
Child support is governed by Mississippi Code Annotated Section 43-19-101, and the amount is determined based on the adjusted gross income of the noncustodial parent. The court first determines the parent’s adjusted gross income, as defined in the statute, and applies a statutory percentage to determine the monthly payment. The following percentages are set by statute, for some parents, based on the number of children: 1 – 14%; 2 – 20%; 3 – 22%; 4 – 24%; 5 or more – 26%. If the noncustodial parent’s AGI is less than $10,000 per year or more than $100,000 per year, the statutory percentages do not necessarily apply; the percentage applied by the court could be more or less than those set by statute.
Although there can be slight variations and hybrid forms, Mississippi law acknowledges four types of alimony, in general: (1) periodic, or permanent; (2) lump-sum; (3) rehabilitative; and (4) reimbursement. All four have different uses, but typically, alimony and property division go hand in hand. That is, where one increases, the other must recede. If property division results in a deficiency to one of the spouses, the spouse with the deficiency can be awarded alimony to equalize the deficit. Advice from a trained professional should be obtained about anything relating to taxes, but alimony payments can be viewed as taxable to the recipient and deductible to the ex-spouse making the payments.
Periodic or permanent alimony terminates upon the remarriage of the person receiving the payments or the death of the paying party, and it is generally modifiable upon a showing of material change in circumstances of the paying party. Permanent alimony is typically made in payments. If it is unclear from the Judgment what kind of alimony was intended, the presumption is that the award was for periodic alimony.
Lump sum alimony, on the other hand, is not modifiable and is viewed as a final settlement; it is vested when the Final Judgment is entered, and it becomes an obligation of the estate of the paying spouse if he or she dies before the obligation is paid in full. Lump sum alimony can also be made in payments or over a certain amount of time, or it can be made in a “lump sum” payment.
Rehabilitative alimony, sometimes known as “periodic transitional alimony” is intended to assist one of the spouses in becoming self-supporting, or getting back on their feet, after a divorce. This form of alimony is a hybrid of the periodic and lump sum alimony forms, in that it is for a fixed period of time (like lump sum), but it is modifiable (like periodic). Hubbard v. Hubbard, provided in the Divorce Center resources below, explains rehabilitative alimony.
Like most states, Mississippi does not view a professional degree as marital property, the value of which is divisible upon divorce. Reimbursement alimony can be paid to a spouse if it can be established that he or she paid for the other spouse’s college or professional education during the marriage.
At one time, Mississippi based property division in divorce cases on whose name was associated with a particular piece of property. For example, if a husband purchased an acre of land in his own name during the marriage, that property was given to him upon divorce. As can be imagined, this led to very inequitable results upon divorce in many instances, especially if one of the spouses was a homemaker and had no source of income. This old “title system” was abolished by the Mississippi Supreme Court opinion, Ferguson v. Ferguson. This very important opinion adopted a new system of property division called “Equitable Distribution.” The Equitable Distribution system is used on most states.
The same day, the court also adopted a rule in the Hemsley v. Hemsley opinion making clear that efforts of a non-breadwinning spouse are valued equally with those of a breadwinning spouse. In other words, in general, if a spouse stays at home, cares for the family, and doesn’t earn a paycheck, his or her efforts will be considered equal in value to those efforts of the spouse who works outside the home and earns a paycheck. These cases also make clear that all property accumulated or acquired during the marriage is assumed to be marital. If one of the spouses asserts that property is not divisible, i.e., it is “separate property”, the burden is on him or her to prove the property is not martial.
Finally, it should be noted that equitable distribution is not the same as equal distribution. Some states subscribe to the “community property” theory, in which each spouse is entitled to a one-half, undivided interest in the property of the marriage. Mississippi, however, divides property based on fairness, or equity.
The Ferguson and Hemsley opinions have been revised slightly over the years, but they form the foundation on which Mississippi property division principles are based.
If a spouse abandons the home and won’t help with expenses, the court can order him or her to come home or send money. This action, known as separate maintenance, doesn’t result in dissolution of the marriage. Instead, it results in a Judgment requiring the abandoning spouse to help the family financially. In some situations, this request for relief is the right strategy, especially if the spouse who stays doesn’t want a divorce.
Jurisdiction and Procedure
The Mississippi Chancery Court has exclusive jurisdiction over divorces. There is a Chancery Court in each of Mississippi’s 82 counties, although some Chancery Court districts are made up of several counties, and the judges of the district rotate between counties. When a divorce action is filed, it is just like any other lawsuit in Chancery Court, for the most part. There are several special rules for divorces, but in general, the same procedural rules apply to all civil actions in Chancery Court. If a divorce case is not settled, it will culminate in a trial in open court. There is no right to a jury trial in a divorce case. Instead, the trial is held before a Chancery Court Judge, or Chancellor.
In any case involving financial issues or property division, the parties must complete a Rule 8.05 Financial Statement, which is a personal financial statement that outlines a party’s income, expenses, assets, and liabilities. This is a very important document that should be completed with care.
Grandparents’ Visitation Rights
Grandparents are not on equal footing with the natural parents of children, but they do have at least some potential rights to visitation. If a parent is awarded custody of a minor child, or if the parent’s parental rights are terminated, or if the parent dies, either of his or her parents – the grandparents of the minor child – may petition the court to seek visitation rights with the child. Otherwise, grandparents may seek visitation if they can prove that (1) they established a viable relationship with the child; (2) the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and (3) visitation rights of the grandparent with the child would be in the best interests of the child. We have fought for the rights of grandparents to visit with grandchildren when they have been wrongfully and unreasonably denied visitation.
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