Archive for the ‘Mississippi Divorce Grounds’ Category
Thursday, August 5th, 2010
The typical scenario when a spouse learns that the other has done something that destroys the marriage is that the innocent spouse meets with a lawyer, who guides the spouse through the divorce process. Occasionally, though, you find that while listening to the “outrage” that a client expresses over learning that their spouse has had an affair you also learn that your “innocent” client has also been having an affair. So what do you do if a client wants a divorce but both spouses are committing adultery? An agreed resolution on the ground of Irreconcilable Differences would be the preferable outcome, but litigation may be the only option in some circumstances.
The Mississippi Supreme Court recently addressed a similar scenario in Jenkins v. Jenkins. In Jenkins, the court was faced with a situation where the lower court granted a person a divorce on the ground of Habitual, Cruel and Inhuman Treatment. The guilty spouse tried to defend the charge by claiming the defense of “recrimination”, which is a common-law defense that states if each party proves a fault ground for divorce then neither is entitled to a divorce. The defense of recrimination has been altered by Miss. Code Ann. 93-5-3, which allows a court to grant a divorce, even if both parties prove a fault ground for divorce, by determining which spouse’s actions constituted the proximate cause of the destruction of the marriage. The Mississippi Supreme Court determined that although the wife admitted committing adultery, the trial evidence showed that the husband’s habitual, cruel and inhuman treatment was the cause of the divorce, not the wife’s adultery, and that the lower court properly denied the husband’s recrimination defense.
Although a scenario where both parties are committing actions that constitute divorce grounds is not the preferable situation, a spouse may still be able to obtain a divorce without his/her spouse’s consent if the facts are supportive. If you find yourself in this situation, speaking with an attorney to help analyze the proximate cause of the destruction of the marriage very early on is vital.
Tags: Adultery, Attorney, Brandon, Brandon Divorce Attorney, Chancery, Child Support Guidelines, Custody, Desertion, Divorce, Habitual Cruel and Inhuman Treatment, Irreconcilable Differences, Mississippi, Mississippi Custody, Mississippi Divorce, Mississippi Divorce Attorney, Mississippi Divorce Lawyer, No-Fault Divorce, Rankin County Divorce Lawyer, Recrimination
Posted in Divorce Grounds, Mississippi Divorce Grounds, Mississippi Divorce Law | No Comments »
Tuesday, December 15th, 2009
Until recently, everyone knew Tiger Woods as one of the most successful wealthiest sports figures in history. Unfortunately for his family, he is now known as an unfaithful husband whose ever-growing list of paramours will surely haunt his wife for years to come. The damage caused by adultery though is the same, whether you are Tiger Woods or Joe the Plumber.
In Mississippi, for a spouse to prove adultery, there must be clear and convincing evidence of both an adulterous inclination and a reasonable opportunity to satisfy that inclination. Adultery can be proven by circumstantial evidence because the secretive nature of adultery normally prevents someone from obtaining direct evidence of what occurred behind closed doors. The evidence of adultery must be logical and be inconsistent with a theory of innocence. A classic example would be evidence that a husband claimed to be going on a business trip to another state but was seen kissing a woman (not his wife), entering a local motel room her and not leaving until the morning. Of course, this does not provide any evidence of what occurred in the motel room but the evidence would clearly demonstrate facts inconsistent with a theory of innocence and would likely result in a finding of adultery.
In a Mississippi divorce case, once a spouse proves adultery, the court will decide issues such as child custody and the division of assets. So not only does the innocent spouse discover the cheating ways of the adulterous spouse, everyone takes a large financial hit with the asset division. Sadly, however, the pain caused by adultery does not always end quickly. Often, the destruction of trust caused by the cheating impacts people’s ability to act reasonably after a divorce is concluded. This usually manifests itself in an unreasonable level of anger, an inability to communicate with the former spouse and frequent post-divorce contempt actions. It can even result in a lawsuit being filed against the paramour for Alienation of Affections. Adultery is possibly the most destructive of the divorce grounds in Mississippi.
If you are the innocent spouse in an adultery situation, it is important to speak with a lawyer quickly to determine the best way to preserve evidence if you decide to pursue a divorce and so that you will understand what is necessary should you pursue a divorce. Even resuming normal marital relations with your spouse after learning of an affair may drastically impact your ability to pursue a divorce on the ground of adultery.
As for Tiger, his adulterous actions may cost him his family, fortune and possibly his career. He will still remain a wealthy after a divorce, but the image he cultivated over the years that has contributed to his staggering earnings has likely been permanently tarnished.
Tags: Adultery, Alienation of Affections, Brandon Divorce Attorney, Lawyer, Mississippi, Mississippi Custody, Mississippi Divorce Attorney, Mississippi Divorce Lawyer, Rankin County Divorce Lawyer, Tiger Woods
Posted in Custody, Divorce Grounds, General, Mississippi Child Custody, Mississippi Divorce Grounds, Mississippi Divorce Law | No Comments »
Thursday, November 12th, 2009
I ran across an article this morning that is pretty unbelievable. The grandmother of a groom should never hear the words, “I’m going to have to choke you out” at her grandson’s wedding. I bet this wedding video won’t be shown at family gatherings.
Tags: Brandon, Brandon Divorce Attorney, Lawyer, Mississippi, Mississippi Divorce Attorney, Mississippi Divorce Lawyer, Wedding
Posted in Mississippi Child Custody, Mississippi Child Support, Mississippi Child Support Collection, Mississippi Divorce Grounds, Mississippi Divorce Law, Mississippi Divorce Tax Issues, Mississippi divorce Joint Accounts, Taxation Issues in Divorce | No Comments »
Friday, October 23rd, 2009
In Mississippi, a decision on which parent is awarded custody of children is a complicated process that involves the consideration of a number of very important factors, some of which are more important than others. The factors are commonly referred to as the “Albright Factors” because they were set forth in the case Albright v. Albright, 437 So. 2d 1003 (Miss. 1983). In Albright, the Mississippi Supreme Court held:
We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.
Marital fault should not be used as a sanction in custody awards. Relative financial situations is not controlling since the duty to support is independent of the right to custody. Differences in religion, personal values and lifestyles should not be the sole basis for custody decisions.
If you are involved in a custody situation or are thinking about filing for divorce, a review of the Albright Factors could assist you in undertanding what information is important to the judge. However, it is critical that you discuss your situation with an attorney immediately if you feel custody will be an issue. Failing to get sound legal advice as soon as possible could cause you to unknowingly engage in behavior that will hurt your ability to obtain custody.
Tags: Brandon Divorce Attorney, Chancery, Child Support Guidelines, Court, Custody, Divorce, Lawyer, Mississippi, Mississippi Custody, Mississippi Divorce Attorney, Mississippi Divorce Lawyer, Visitation
Posted in Custody, Mississippi Child Custody, Mississippi Child Support Collection, Mississippi Child Supprt, Mississippi Divorce Grounds, Mississippi Divorce Law | No Comments »
Thursday, October 8th, 2009
An article was posted on FOX News this morning that leaves you waiting for the punchline. Unfortunately, it is not a joke. The headline reads, “Florida Priest Seeks Custody of Child From Stripper.” The article needs no explanation other than to say that issues pertaining to custody of children and child support know no societal, economic or professional boundaries and that when you think you’ve heard it all, you soon realize that you have not. A link to a more thorough article on the matter is here.
Tags: Brandon Divorce Attorney, Chancery, Child Support, Custody, FOX News, Lawyer, Mississippi, Mississippi Divorce Attorney, Mississippi Divorce Lawyer, Paternity, Rankin County Divorce Lawyer, Restraining Order
Posted in Custody, Mississippi Child Custody, Mississippi Child Support Collection, Mississippi Child Supprt, Mississippi Divorce Grounds, Mississippi Divorce Law | No Comments »
Monday, October 5th, 2009
It is nearly impossible to read the news and not see something about Jon and Kate Gosselin, their divorce and their television show, Jon and Kate Plus 8. The television show follows the Gosselins as they raise sextuplets. While you cannot help but feel bad for the children as their publicity-hungry parents divorce in the public eye, it is nevertheless interesting from a divorce perspective to see how the dissolution of a marriage in the public spotlight mirrors those of people who quietly divorce without publicity - all are driven at some level by self preservation, the need for security, the need to “win” and greed.
One of the headlines today is “Kate Accuses Jon of Taking $200,000.” Apparently, Jon and Kate maintained over $200,000 in a joint account and after being notified that he would no longer be part of the show, Jon withdrew all but $1,000 of the money. Perhaps Jon had a good reason for the withdrawal, but his “reason” had the effect of leaving his spouse and children with very little to make ends meet.
When two people separate and anticipate divorce, it is natural to be wary of the other’s intentions and to be mindful of your own financial security, especially when children are involved. However, it is important to remember that in Mississippi, when money is withdrawn from an account held jointly with your spouse, that the money also belongs to your spouse. This does not mean withdrawing money is improper (unless a court has prohibited any withdrawals), but you may ultimately have to account for the money if a court decides that you overreached and withdrew more than your share of the marital funds. In the Gosselin matter, Kate withdrew $100,000 earlier this year and was ordered to return the money. Now that Jon has done the same thing, it is hard to imagine a court not ordering him to return some or all of the funds to his wife, especially considering she is now raising their eight children alone.
When withdrawing funds from a jointly held account while a divorce is pending, it is important to be reasonable and know that you may be ordered to return all or some of the money, even if it has been spent. While winning the race to the bank may be beneficial, the benefit may only be temporary.
Tags: Attorney, Brandon Divorce Attorney, Child Support, Court, Custody, Divorce, Financial Security, Joint Account, Jon and Kate Plus 8, Jon Gosselin, Judge, Kate Gosselin, Lawyer, Mississippi, Mississippi Custody, Mississippi Divorce Attorney, Mississippi Divorce Lawyer, No-Fault Divorce, Rankin County Divorce Lawyer, Withdrawal
Posted in Joint Accounts, Mississippi Child Custody, Mississippi Child Support, Mississippi Child Support Collection, Mississippi Divorce Grounds, Mississippi Divorce Law, Mississippi divorce Joint Accounts | No Comments »
Tuesday, September 15th, 2009
To get a divorce in Mississippi, spouses must either agree on a divorce on the ground of irreconcilable differences or prove that one of the causes for divorce that are specified in Miss. Code Section 93-5-1 exist. The causes for divorce listed in Section 93-5-1 are:
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 the space of one (1) year
5. Habitual drunkenness
6. Habitual and excessive use of opium, morphine or other like drug
7. Habitual cruel and inhuman treatment
8. Mental illness or mental retardation at the time of marriage, if the party complaining did not know of that 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 the pregnancy
11. Either party may have a divorce if they are related to each other within the degrees of kindred whom marriage is prohibited by law
12. Incurable mental illness
Obviously, some of the divorce grounds are going to be more frequently used than others. For example, adultery and habitual, cruel and inhuman treatment are the most commonly asserted grounds for divorce while others like natural impotency and being related to one another are very seldomly asserted.
In later posts, we’ll discuss in more detail the individual grounds for divorce and what constitutes each ground. If you are considering a divorce, a quick review of the allowable divorce grounds should provide an overview of what circumstances need to exist in order to get a divorce without the consent of your spouse.
Tags: Adultery, Attorney, Bigamy, Brandon, Brandon Divorce Attorney, Chancery, Desertion, Divorce, Drinking, Habitual Cruel and Inhuman Treatment, Habitual Drunkenness, Incest, Irreconcilable Differences, Mental Illness, Mississippi, Mississippi Divorce Attorney, Mississippi Divorce Lawyer, No-Fault Divorce, Penitentiary, Pregnancy, Rankin County Divorce Lawyer
Posted in Divorce Grounds, Joint Accounts, Mississippi Child Custody, Mississippi Child Support, Mississippi Child Support Collection, Mississippi Divorce Grounds, Mississippi Divorce Law, Mississippi divorce Joint Accounts | No Comments »
Tuesday, August 25th, 2009
In Mississippi, a husband and wife may be granted a divorce on the ground of Irreconcilable Differences. This is often referred to as a “no-fault divorce.” Of the divorce grounds available in Mississippi, Irreconcilable Differences is usually the simplest, quickest, cheapest and least stressful way to obtain a divorce.
Typically, the husband and wife both sign a document called a Joint Complaint in which they ask the court to grant them a divorce on the basis that irreconcilable differences have arisen between them. Usually there is a written agreement attached to the Joint complaint that addresses the division of assets and debt, provides for custody and visitation and addresses other issues important in a divorce. Both spouses will also need to complete a financial statement, unless they agree to waive that requirement. Once the Joint Complaint is signed, it is filed with the Chancery Clerk’s office in the county of either spouse’s residence, if both are Mississippi residents. If one of the spouses is not a Mississippi resident, then it should be filed in the county where the Mississippi resident lives. The Chancery Clerk will require the parties to pay a filing fee at the time they file the Joint Complaint.
Once the Joint Complaint is filed, it must remain on file for at least 60 days before the judge has the authority to grant the divorce. In comparison to divorces based on grounds such as adultery, the 60 day period is pretty quick. During that 60 day waiting period, it is important to remember that you are not divorced. Even though an agreement has been reached on a divorce, no spouse likes to see their husband/wife displaying their new “companion” in public and such actions often result in litigation.
Once the 60 day waiting period is over, your lawyer will meet with the judge to present the written agreement for approval. The Court will review the agreement, along with the financial statements, to determine if the agreement is adequate and sufficient. If so, the Court will sign a document called a Judgment of Divorce that, when filed with the Chancery Clerk, will grant the divorce and end the marriage.
There are other ways to obtain a divorce on the ground of Irreconcilable Differences and there are variations to the process, but this procedure is the most common. If you are considering a divorce, you should contact an attorney to discuss your options. Because of its simple procedure, many people try to get divorced without an attorney. While this may save a little money on the front end, you may end up with a really bad divorce agreement that you cannot change. It is well-worth the investment in an attorney to make sure your divorce is done properly.
Tags: Adultery, Attorney, Brandon, Brandon Divorce Attorney, Chancery, Child Support, Custody, Divorce, Financial Statements, Irreconcilable Differences, Lawyer, Mississippi, Mississippi Divorce Attorney, Mississippi Divorce Lawyer, No-Fault Divorce, Rankin County Divorce Lawyer, Visitation, Waiting Period
Posted in Child Support, Child Support Collection, Divorce Grounds, Mississippi Child Custody, Mississippi Child Support, Mississippi Child Support Collection, Mississippi Divorce Grounds, Mississippi Divorce Law, Mississippi divorce Joint Accounts | No Comments »
Wednesday, August 19th, 2009
A Muslim woman in Malaysia is scheduled to be beaten next week with a rattan cane after she pleaded guilty to drinking beer. Apparently, consuming alcohol is legal in Malaysia unless you are a Muslim. In Mississippi, no matter what your religion, drinking beer will not currently result in the government beating you with a cane, but it can contribute to or cause the destruction of a marriage.
The Mississippi Legislature has identified twelve situations where a party is entitled to a divorce without their spouse’s consent. The fifth situation is habitual drunkenness. The legislature did not provide any guidance as to what it considers habitual drunkenness to be and there are not many cases that elaborate. However, it is safe to assume that the drinking spouse must become intoxicated habitually and that the frequent intoxication must have an adverse effect on the marriage.
If you believe you are entitled to a divorce because of your spouse’s habitual drunkenness, it is important that you pay attention to what type of alcohol is being consumed, the quantity and the frequency of consumption. You will also need to explain how the habitual drunkenness is affecting your marriage. Some examples of the effect the drunkenness may have on the marriage are that after drinking, your spouse has drastic mood changes, becomes belligerent, engages in frequent verbal altercations or even commits physical abuse. It is important to link the habitual drunkenness to behavior that is offensive to the marriage. To assist you in recalling all the details and to aid your attorney in advising you, it is recommended that you take notes to document the drinking and the behavior affecting the marriage. Often, a spouse is unpleasantly surprised at the amount of alcohol consumed when they review their notes taken over a period of time. Of course, do not take notes and leave them where they may be found by your spouse.
Tags: Beer, Brandon Divorce Attorney, Divorce, Drinking, Habitual Cruel and Inhuman Treatment, Habitual Drunkenness, Mississippi, Mississippi Code, Mississippi Divorce Attorney, Mississippi Divorce Lawyer, Rankin County Divorce Lawyer
Posted in Divorce Grounds, Mississippi Child Custody, Mississippi Child Support, Mississippi Child Support Collection, Mississippi Divorce Grounds, Mississippi Divorce Law, Mississippi divorce Joint Accounts | No Comments »
Tuesday, August 18th, 2009
One of the most frequent issues in family law is that of a custodial parent’s concerns over how much child support he or she will receive. While the courts have the final say in determining the amount of child support, the Mississippi Child Support Award Guidelines are fairly easy to follow and working through the statute’s procedure often gives a paying spouse the assurance that the amount being considered is appropriate. Also, calculating a child support estimate early in divorce negotiations can often assist the parties in agreeing on a resolution.
The first step in the process is calculating the amount of monthly adjusted gross income. This generally is done by taking the gross amount of money earned in a month (which includes all earnings, even if paid in cash) and deducting from that the amount withheld for federal, state and local taxes as well as social security contributions. If the paying parent is required to pay child support for another child pursuant to a court order, then that amount should also be deducted from the monthly gross pay. If mandatory contributions to a retirement plan are made, then a deduction is taken for those contributions. (All of these mandatory deductions, including taxes and social security contributions, are most easily calculated by reviewing the payor’s W-2 form). Finally, if the paying parent is also the parent of a child living with him, then the court may subtract an amount that it deems appropriate to account for the needs of that child. The amount remaining (if calculated on a monthly basis) is the monthly adjusted gross income. If the calculations were done from a W-2 form then the net amount must be broken down into a monthly amount by dividing the net amount by twelve.
Once the monthly adjusted gross income is calculated, the next step is to multiply the monthly adjusted gross income by the correct child support percentage to come up with the amount of monthly child support. The percentages are:
1 child: 14%
2 children: 20%
3 children: 22%
4 children: 24%
5 or more children: 26%
There are some exceptions to these rules, but this summary should assist anyone who wants to take a shot at coming up with a ballpark child support calculation. It is important to remember though that the Court is the final authority over the amount of child support and it evaluates child support amounts carefully to make sure that the law is followed.
Tags: Brandon Divorce Attorney, Child Support, Child Support Guidelines, Divorce, Income, Mississippi Code, Mississippi Divorce Attorney, Mississippi Divorce Lawyer, Rankin County Divorce Lawyer
Posted in Child Support, Mississippi Child Custody, Mississippi Child Support, Mississippi Child Support Collection, Mississippi Divorce Grounds, Mississippi Divorce Law, Mississippi Divorce Tax Issues, Mississippi divorce Joint Accounts, Taxation Issues in Divorce | No Comments »
