Adams & Edens, P.A. | Mississippi Divorce Law Blog » Child Support Guidelines

Divorcing if Both Spouses Have Committed Wrongdoing

admin — Thu, 05 Aug 2010 16:06:32 +0000

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.

Factors Courts Use in Mississippi to Determine Custody

admin — Fri, 23 Oct 2009 22:29:01 +0000

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.

How Much Child Support Will I Receive?

admin — Tue, 18 Aug 2009 19:58:04 +0000

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.