Posts Tagged ‘Divorce’

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Who Will Get Custody of the Children?

Friday, October 23rd, 2009

by Chris Palmer

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.

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Do I Have Grounds for Divorce?

Tuesday, September 15th, 2009

by Chris Palmer

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.

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Drinking and Divorce

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.

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Posted in Grounds for Divorce | No Comments »

How Much Child Support Will I Receive?

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.

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