Divorce

Beyond the considerable emotional pain, the end of a marriage is legally, financially, and emotionally complex, and could affect you the rest of your life. This web site reviews some basic information about divorce, including some alternatives to divorce, the grounds and procedures for obtaining a divorce, and some basic considerations about divorce. It is not a substitute for personal legal advice, however. Divorce is legally complex, and you should seek the advice of a professional as soon as you think your marriage is ending. You will need sound professional advice to determine important issues like child custody, financial support, and to make a fair division of the property of the marriage.

Alternatives to Divorce

Depending on your circumstances, you may wish to consider alternatives to divorce, such as marriage counseling, a moment, or separation.

Counseling

Many couples try counseling from marriage counselor, social worker or psychotherapist as alternatives to divorce. Such counselors are trained to help couples resolve their differences. Additionally, the counselor may be able to help you and your spouse learn communication skills and a better understanding of one another to prevent their marriage from failing. Often counseling can be useful in couples find their problems that have begun to affect their compatibility with each other. Counseling may also help your relationship with your spouse from worsening even if divorce is unavoidable.

Annulment

An annulment is a court ruling that a marriage was never legally valid. A marriage can be annuled if there was a serious defect at the time of the marriage ceremony. In Mississippi, marriages can be annulled if one of the parties was under age time of the marriage, if the spouse cannot consummate the marriage, if consent for the marriage was obtained fraudulently, or if the marriage was bigamous or incestuous. Issues of child custody or property division may also be addressed by the court as part of the annulment preceding.

If you and your spouse separate, it is best if you enter into a separation agreement. A separation agreement is a contract between you and your spouse that can provide for spousal support, child custody, visitation rights, and a division of property acquired during the marriage. The agreement can be of enforced by courts if a party does not comply. If the parties later divorce, the terms of the agreement may be included in the divorce judgment.

Grounds for Divorce

Mississippi courts recognize the following grounds for a for divorce: adultery; natural impotency; being sent to the penitentiary; habitual drunkenness; habitual and excessive use of opium, morphine, or like drug; willful, continued, obstinate desertion for the space of one year; habitual cruel and inhuman treatment; insanity on the date of marriage; bigamy; pregnancy of the wife by another at the time of marriage without husband's knowledge; relation within the prohibited degrees of kindred; and incurable insanity.

In the event that a husband and wife cannot agree on a divorce, an innocent spouse can compel divorce if they can prove the existence of one or more of the foregoing grounds. In order to obtain a divorce over the objection of the other spouse, the party seeking the divorce must prove the existence of one or more grounds for divorce, by preponderance of the evidence. This is done through a civil trial in Chancery Court, before a judge. The trial process is typical for civil trials, and often involves pretrial discovery, including depositions and interrogatories, and trial testimony. Such proof often involves testimony of both spouses, friends, family, and frequently private investigators.

No-Fault Divorce

In addition to divorce "for-cause," Mississippi permits spouses to divorce upon the consent of both spouses, without consideration of the reason for the divorce. This type of divorce eliminates the need for trial proving fault, however a trial may be needed to enable the judge to divide property or award custody or child support. This type of divorce is frequently referred to as "no-fault," or "irreconcilable differences" (ID) divorce. In an ID divorce, the parties jointly petition the court for a divorce by filing a joint petition. The parties must then wait a minimum period of 60 days after the date of filing before seeking a final judgment of divorce from the judge. Parties can also agree on property settlement, child custody, child support, alimony, and other issues surrounding the termination of the marriage. If the parties cannot agree on these matters, they can nevertheless agree to divorce, and allow a judge to determine any remaining issues.

Typically, an irreconcilable differences divorce is less expensive, and faster, then a divorce "for-cause." However, in certain circumstances, a fault based divorce may offer a better legal strategy for you. A lawyer can guide you on the best way to proceed.

Separation

There is no statutory mechanism in Mississippi for obtaining a separation order, absent a pending divorce action. However, Mississippi does impose on married couples a continuing duty of legal support in an amount that will allow the parties to maintain their accustomed standard of living, even during the pendency of a divorce action. Therefore, a Chancery Court can order a spouse to pay support to the other spouse during the pendency of a divorce, provided the seeking spouse did not substantially contribute to the breakup of the marriage.

Child Custody and Visitation

Child custody can be given exclusively to one spouse, or the spouses can share joint custody. In most cases, one parent is given sole, or primary, physical custody and the children live with that parent. The other parent usually has visitation rights to take the children on weekends, alternating holidays, and some vacation days. Additionally, divorced couples often share joint legal custody, giving both parents a role in major life decisions affecting the child, such as choosing schools and medical treatment.

If parties are unable to agree on custody, the court will award custody based on considerations such as parental fitness, the preferences of the children, the ages of the children, and their sex. A party who later wants a change in custody must show that the conditions have changed and a new arrangement is in the best interest of the children.

Spousal and Child Support

Spousal support, also called alimony or maintenance, may be available to either spouse, depending upon the spouses' relative incomes, standard of living, financial deeds, and the circumstances leading to the divorce. If the spouses are unable to agree on support, a judge will decide who should pay it, how much is to be paid, and how long it will continue. An award of spousal support may last for a stated period of time, until the receiving spouse is self-supporting, or until death or remarriage.

Both spouses are responsible for the support of their children. If the spouses cannot agree on child support, the court will apportion the responsibility based upon custody, incomes, financial resources, and other obligations. Former spouses may go back to court in later years and ask the judge to increase or reduce the spousal or child support, upon a showing all of a material change in circumstances.

The following guidelines have been enacted by the Mississippi legislature as providing guidance in determining the appropriate child support amounts, where the payers adjusted gross income falls between $5,000 and $50,000:

• 14% for 1 child.
• 20% for 2 children.
• 22% for 3 children.
• 24% for 4 children.
• 26% for 5 or more children.

Adjusted gross income for computing the appropriate amount of child support is computed as follows:

Income from all sources (including second jobs and overtime) minus federal, state, and local taxes, social security contributions, mandatory retirement and disability contributions, and existing child support orders.

Dividing Property and Debts

If you and your spouse are unable to agree on who gets what, the court will divide the property based upon an equitable or fair division of the marital property. The court may consider the contributions of each spouse to the marital estate, the contributions of each spouse toward child care, the financial resources and debts of each spouse, and the income and career potential of each spouse. A lawyer at the Morton Law Firm can help ensure that you get a fair division of property, and help you avoid overlooking valuable assets such as pension rights, or fair value of a closely held family business.

You and your spouse can assign responsibility for your debts in a separation agreement. If you are unable to agree on a division of responsibility, the court will probably apportioned them in accordance with the same type of considerations used to divide property of your marriage. The Morton Law Firm can help you obtain compensation from spouses for failure to play debts that are their responsibility.

Tax Considerations

A divorce has important tax implications. The custody can affect your taxes, including your right to claim head of household status, dependent exemptions, and child care credits. Support payments may be taxable or deductible. The property division may also affect your taxes. The Morton Law Firm can advise you about the tax aspects of divorce.