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.

Unless you have been living in a hole with no access to news, you have undoubtedly heard of the scandal involving Congressman Anthony Weiner, who recently resigned after it was revealed that the married congressman had sexual conversations with females, sent females lewd photographs of himself and then publicly blamed the fiasco on a “hacker.” What started as a foray into the temptations of internet anonymity and access, ended with public embarrassment, career destruction and possible divorce. Weiner’s public self-destruction teaches the average married person a valuable lesson in trust, proper marital boundaries and the use of technology to facilitate “internet infidelity.”

Engaging in sexual conversations, flirting and conversing with someone other than your spouse via email, Twitter, Facebook or text messaging destroys the trust between spouses. Often, the ease of communication can lead to very intimate “electronic” relationships that give the appearance of infidelity.  In my opinion, the presence of an “internet infidelity” can be just as devastating to a marriage as a physical affair because the innocent spouse will always believe that a physical affair has occurred or is in the process of occurring. Once the suspicion of an affair takes hold, a divorce complaint often follows since the discovery of adultery usually begins with suspicion.

Adultery is a ground for divorce in Mississippi and is defined as “voluntary sexual intercourse of a married person with a person other than the offender’s spouse.” Owen v. Gerity, 422 So. 2d 284, 287 (Miss. 1982). Because of the secretive nature of adultery, direct proof is not required and one may prove adultery by circumstantial evidence. Essentially, to prove adultery by circumstantial evidence, the proof must show (1) a spouse’s adulterous nature, which usually involves infatuation or adulterous inclination and (2) a reasonable opportunity to act on the infatuation or inclination.  Facts that support a finding of adultery have been secretive actions by a spouse, frequent telephone calls and letters to a suspected paramour.  Clearly, engaging in intimate conversations with someone not your spouse over the internet, by text message or other means will likely satisfy the element of proving infatuation or adulterous inclination.  However, unless you are able to prove a reasonable oppurtunity to act on the infatuation or adulterous inclination, then you will be unable to obtain a divorce on the basis of adultery (unless there is an admission or some form of direct proof).

Engaging in actions such as those committed by Anthony Weiner may not constitute grounds for divorce alone, but it is likely that with proper investigation, proof of reasonable opportunity may be discovered.  If you suspect your spouse is committing adultery and you are considering divorce, it is important that you speak with a lawyer before confronting your spouse.  With proper legal advice, steps may be taken to preserve evidence and to make sure you are able to present the strongest case possible. Additionally, if you suspect adultery, it is critical that you do not resume a sexual relationship with your spouse because if you do, the law considers you to have forgiven your spouse of the adultery and you will be unable to use the adultery as a ground for divorce. You may ultimately decide that forgiveness is the best course of action for your family but you should first seek legal advice from a competent divorce attorney so that you have the knowledge to make an informed decision as to your marriage.

Recently, a company called SafeGuard Marketing Management, Inc. began selling a product called “Divorce Insurance.”  You certainly have to admire the ingenuity of a company to come up with a product like this.  However, the value of the product is questionable both morally and financially.  If you are contemplating marrying the love of your life, but at the same time anticipating a divorce, then you should probably just skip the pain and not get married.  The concept of “divorce insurance” trivializes marriage and in my view, encourages people to make no effort to resolve their differences.  In fact, it would actually provide an incentive to divorce and contribute to the destruction of many families.  If potential spouses want “insurance” against divorce, then their money would be better spent by investing in premarital counseling and marriage counseling, if problems arise.   Here is an article written by an attorney in California that expands further on the topic.

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.

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.

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.