by Jake Adams
One of the most problematic aspects of divorce (aside from child custody) is money. There’s often not enough to go around. If you are considering divorce be realistic about your finances and plan ahead. One way to be prepared is to read informative articles like this one regarding common money mistakes made during divorce.
by Jake Adams
This post is for you Mississippi divorce lawyers out there.
In S.E.B. v. R.E.B., No. 2010-CA-00074-COA, a Hinds County divorce action, the Court of Appeals dismissed the appeal for lack of jurisdiction where the Judge declined to rule on the issue of child support in making her ruling in her judgment of divorce. “Due to (wife) not being employed at this time, the issue of child support will not be ruled on until such time in the future as the Court deems proper,” the Hinds County Chancellor wrote in the judgment.
Any time a divorce attorney sees the words “will not be ruled on until such time in the future,” in a judgment the red flags need to start waving that an appeal will require certification pursuant to Mississippi Rule of Civil Procedure 54(b). There was no such certification in this case and the appeal was dismissed.
by Jake Adams
In White v. White, No. 2009-CA-01701-COA, the Mississippi Court of Appeals upheld a custody award to father in an Alcorn County divorce matter where allegations of sexual abuse were made by wife against the paternal grandfather. The Chancery Court eventually found that no credible evidence existed that the sexual abuse occurred. In making its Albright findings, the Court found that the child’s well-being had been negatively impacted by the sexual-abuse allegations and that the factor regarding health of the children favored the father because of it. As to the parenting skills factor, the Court found that wife’s pursuit of the sexual-abuse allegations in part caused this factor to favor the father. The court was of the belief that wife and a grandmother were planting information of sexual abuse in the child’s mind. As a result, husband/father was awarded custody.
This is a case where unproven allegations of sexual abuse of a child harmed the accusing parent.
by Chris Palmer
Can’t I get a divorce by just filling out some forms? I saw online where I can get the divorce forms for a lot less than the cost of a lawyer, is that a bad idea? These are questions that come up periodically and the answer to both questions is “yes.” To explain, a no-fault divorce can be very simple for a lawyer to put together for a client and can take very little time by the lawyer to do so. But, the final product you see is the culmination of years of education, experience and familiarity with the differing requirements of chancery court judges along with careful drafting of documents that address the client’s unique circumstances For divorces, there is no “one size fits all” form.
Proper preparation of divorce documents is critical. Lawyers look at both the immediate goal of obtaining a divorce as well as the long-term consequences of the divorce judgment. Usually, parties that try to get divorced without the benefit of a lawyer create documents that are so awful, they often end up being completely unenforceable or void. If that happens, it is almost certain that the parties will end up paying much more money in legal fees to repair the mess that they would spent to do it correctly in the first place.
The decisions you make in a divorce, and the documents that result, can control aspects of your family for tens of years and drastically impact your finances and property. Nothing that important should be relegated to a do-it-yourself kit. While there are certainly legal documents you can create without a lawyer that will serve you well, in a divorce, there are no short cuts. Do it right the first time to avoid major problems in the long-term.
by Chris Palmer
When child support payments are set by court order and there is a desire to either increase or decrease the amount of the payments, the person seeking the change must show that a substantial and material change in the circumstances of either the parents or the child has occurred since the date of the child support judgment. The process is begun by the party seeking the modification filing a Complaint for Modification and having it, along with a summons and court date, served on the defendant. In reviewing a request to change the child support amount, the court considers the increased needs of older children, higher expenses, a child’s medical needs, the parents’ financial situation, the health and needs of the parents, the monthly living expenses of the party ordered to pay child support, the parents’ tax obligations, the respective costs of each party’s residence and any other facts and circumstances the court considers relevant. However, the most common reason for either party seeking a change in child support amount is a change in the payor’s income.
A modification cannot relitigate issues already decided in the original decree. Modifications must be based on facts that occurred after the court established the original child support order. If you were not satisfied with the original order then the remedy was to ask the court to reconsider and/or appeal the decision, but there are strict time frames in which that must be done. Also, the change in circumstances sought to be used as the basis for a change in child support amount must be unanticipated at the time of the original decree.
Lifestyle decisions cannot be used to justify a child support modification. For example, a payor cannot purchase a new car and then claim he should pay less child support because the car loan is too expensive. Additionally, a payor cannot have child support reduced because he or she decides to have more children.
Typically, a modification is brought because the person receiving child support discovers that the payor has received an increase in pay. If so, a substantial increase in pay will justify a modification with the court considering the child support guidelines. Likewise, if a payor receives a substantial decrease in pay, a downward modification may be appropriate. However, if the payor created the decrease in pay, the situation may be a little more difficult to address because courts are traditionally reluctant to take child support away from a custodial parent simply because the payor wanted to take a lower paying job. In those situations, the court is likely to pay close attention to the motivation behind the payor’s actions.
If a modification is sought, it is important to act quickly because a modification is generally only effective from the date of the complaint to modify (at the earliest) or the date of the court order modifying the amount.
by Jake Adams
Mississippi law places a premium on stability in the life of the child. Therefore, once a custody order is in place, there are significant, but not insurmountable hurdles to successfully modifying a custody order.
In order to modify child custody, the noncustodial parent must prove as follows:
1. A material change in circumstances occurred in the custodial parent’s home since the most recent custody order;
2. the material change adversely affects the child; and
3. a modification of custody is in the best interest of the child.
All three elements must be established to modify a child custody order.
by Jake Adams
In Parra v. Parra, No. 2010-CA-00339-COA, a Warren County divorce, the Court of Appeals reversed and remanded the child custody decision of the Chancery Court because in awarding custody of the children to the father, the Judge failed to make specific findings of fact as to the Albright Factors.
Child custody determinations in Mississippi divorce cases must be based on the Albright Factors, which are as follows:
1. The age, health, and sex of the child;
2. a determination of the parent who had the continuity of care prior to separation;
3. which parent has the best parenting skills and which has the willingness and capacity to provide primary childcare;
4. the employment of the parent and the responsibilities of that employment;
5. the physical and mental health and age of the parents;
6. the emotion ties of 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 the home environment; and
11. other factors relevant to the parent-child relationship.
Cases involving a determination of child custody require the Court to make specific findings as to each of these factors. By requiring the trial court to make findings as to each of these factors, and the polestar consideration of the child’s best interest, the Appellate Court accomplishes two great purposes.
First, the decision of the Court is not made in the dark. The factors allow litigants to know exactly what proof they need, and after hearing the Court’s findings as to each factor can know how the Court reached its decision.
Second, the factual findings as to each of the factors allows for accurate appellate review of the lower court’s custody decision.
Thus, while establishing the Albright factors may be a daunting task for litigants and making findings as to each may be equally tedious for trial courts, the factors are a wonderful tool for protecting the most important thing of all – the children.
by Jake Adams
In Estate of Wesley Cooper v. Guido, the Mississippi Court of Appeals upheld the validity of an antenuptial agreement, also known as a prenuptial agreement, where the agreement was executed the morning of the wedding at the law office of the now deceased Husband’s attorney and Wife had an attorney present to answer her questions. The evidence also showed that Wife was not completely surprised by the agreement because she had supplied a list of her assets to Husband’s attorney days before she executed the agreement. In the agreement, Wife waived any claim she had to Husband’s estate and further waived her right to contest the validity of his Will.
Prenuptial agreements are upheld in Mississippi where it is shown that the parties fully disclosed their assets and where there is fairness in execution. Generally, fairness in execution is accomplished by giving the non-drafting party the opportunity to have the agreement reviewed by an attorney of his or her choosing prior to execution. However, that was not the standard in Estate of Cooper, where Wife only had an attorney available to answer her questions the morning of execution and the attorney was not necessarily one of her choosing. The Court of Appeals said “it is not now and never has been the function of this Court to relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated.”
by Chris Palmer
When courts decide how to divide property in a divorce, the court must first classify each asset as either marital or separate property, place a value on the property, divide the property based on the factors set out in Ferguson v. Ferguson, 639 So. 2d 291 (Miss. 1994) and then award alimony if necessary. This process is referred to as Equitable Division, not to be confused with equal division.
Marital property is essentially any property that was acquired during the marriage, although there are variations and exceptions to that general rule. Normally gift and inheritances are considered separate property as well as assets purchased or acquired before marriage.
The factors the Court uses to determine how to divide property classified as “marital” are:
1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution 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 accomplishment 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 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 ordinarily, 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 distribution;
6. The extent to which property division may, with equity to both parties, 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 with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.
As you can see by the factors, the process is not an exact science and the result is unique to the individuals before the Court. It is important for divorcing individuals to be aware of the factors the court is required to consider so that they will better understand the process and be able to assist the attorney in focusing on those facts necessary for equitable division.
by Jake Adams
In Jenkins v. Jenkins, a recent Mississippi Court of Appeals case, the Court upheld the ruling of the Jones County Chancery Court, wherein the Court awarded a significantly larger portion of the marital property to Husband. Important factors noted by the Court in making this division were that Husband made much more contribution to the marital estate and that the divorce was caused by Wife’s addiction to prescription drugs. Fault and contribution are two of several factors courts consider in dividing marital assets. Importantly, this was only a seven year marriage, and Husband brought significant assets into the marriage.
“Equitable distribution does not mean equal distribution,” the Court said, citing prior case law.
This case presents one set of circumstances where Mississippi law does allow a spouse who is independently wealthy prior to marriage to withstand a division of marital property in a divorce and retain a large portion of his or her assets.