Desertion is one of the statutory fault grounds for divorce in Mississippi. While it is actually one of the lesser used grounds for divorce in this state, it is probably the fault ground that is most misunderstood by laypersons. One of the prevailing misconceptions about this fault ground that I frequently hear when clients come to see me goes something like this, "Our marriage is over, but I know I am not supposed to leave the house because that is desertion, right?" Wrong. That is not desertion. The simple act of leaving the marital home will not provide your spouse with grounds for a divorce based on desertion. Let's take a closer look at what the law says desertion is.
Desertion as defined in the statute is, "Willful, continued and obstinate desertion for the space of one year."
In order to prove desertion a plaintiff must show:
1) The defendant has been absent for one year
2) The defendant Intended to abandon the marriage
3) The plaintiff did not consent to the separation
The space of one year must be continuous. A good faith-offer to reconcile by the deserting spouse interrupts the one-year, effectively restarting the clock at zero.
Interestingly enough, a rejection of a deserting spouse's good-faith offer to reconcile by the deserted spouse could ultimately provide grounds for a divorce for desertion for the spouse that originally abandoned the marriage. So if a wife initially leaves the marital home, intending to abandon the marriage and without the consent of her husband, but after 6 months she offers to reconcile in good-faith (no outrageous demands for her return) but her husband rejects her offer - twelve months later she could potentially sue him for desertion.
Additionally, a spouse's absence must be due to an intent to abandon the marriage - an agreed upon separation by itself will not constitute desertion, absent a later rejected offer to reconcile. Also, legitimate absences such as for work will not be considered desertion if there was no intent to abandon the marriage.
While desertion may be one of the lesser used grounds for divorce, there are still plenty of cases that qualify. If your spouse has fled the marital home, contact a divorce and family law attorney to discuss your options.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area.
You can reach him at (601)-707-8953 or jtd@jonathantday.com.
Showing posts with label divorce. Show all posts
Showing posts with label divorce. Show all posts
The Top 8 Reasons to Mediate Your Divorce
1. It Costs Less. Litigation is expensive. Ask any lawyer and they will tell you that litigation is costly. When you mediate your divorce, you and your spouse will typically split the cost of the mediator, who will help you reach agreement and settle your case. This could potentially save you tens of thousands of dollars in lawyers fees by shortening the length of the representation. Instead of paying your lawyer to file motions, conduct additional depositions, and showing up to argue motions as you wait for a year to get a trial date, you could already be divorced with a settlement agreement that is likely more satisfactory for all concerned than if the case had gone to trial.
2. It's Faster. One of the most difficult aspects of divorce is the anxiety caused by the uncertainty of the future. You are struggling to figure out, in the short term, how to negotiate expenses, housing situations, and visitation - all of which will feel uneasy until your divorce decree sets out the guideline for the future. By mediating your case you do not have to wait months, or potentially years, to get the next available court date. The parties get to control the timeline for resolving issues, and the matter can often be resolved in as little as a single day of mediation.
3. It Protects The Children. Perhaps the greatest benefit of mediation is that the presence of a neutral third party in negotiations can help keep the focus on the best interests of the children, and help to defuse some of the animosity that the adversarial litigation process can stir up. Custody trials often require that children be interviewed by experts, and they may even be required to appear in court. By settling your issues out of court through mediation, you can save your children from the harmful effects of seeing their parents fight one another at trial.
4. There Is More Confidentiality. At trial, you have to "air your dirty laundry" in a room full of strangers - open to the public - in which a court reporter is recording every word you say to create a public record. All of the intimate details of your failed relationship will be memorialized. In mediation, all communications remain privileged and confidential. The only thing that will leave the mediation is your settlement agreement. All other communications made during the course of the mediation remain confidential - never to see the light of day.
5. You're in Control. In mediation, the parties get to control the process. You get to control the discussion and choose what to settle. You, not the court, have final say over the terms of your settlement agreement.
6. There is More Personal Attention. It is pretty common for a client to want their "day in court". They want to express themselves and tell their side of the story. Unfortunately, at trial this opportunity is less than ideal. The scope of what you get to say will likely be greatly limited by the attorney doing the questioning. In mediation, however, you will get to fully express yourself. Since you get to control the discussion, you can talk about whatever issues you feel are most important to you. You are far more likely to feel satisfied with your day in court if it is actually a day spent in mediation.
7. Increased Scheduling Flexibility. Waiting for a court date can be one of the more frustrating aspects of traditional litigation. Even when you finally do get a trial date set, you'll likely have to take days off of work since the courts are only open 9-5. Mediation is far more flexible. Mediation sessions can be scheduled in the evenings or even on weekends. You can plan your mediation around your existing schedule.
8. It Can Improve Post-Divorce Stability. The adversarial nature of litigation can create an us-against-them mentality while the parties fight over finances, property, and custody. Realistically, however, if you have children you will still be in each others lives moving forward post-divorce. Mediation can improve communication between parties - something that will be required post-divorce. Additionally, mediation can lead to improved understanding of one another and facilitate collaborative problem solving, which will help when issues arise in co-parenting.
2. It's Faster. One of the most difficult aspects of divorce is the anxiety caused by the uncertainty of the future. You are struggling to figure out, in the short term, how to negotiate expenses, housing situations, and visitation - all of which will feel uneasy until your divorce decree sets out the guideline for the future. By mediating your case you do not have to wait months, or potentially years, to get the next available court date. The parties get to control the timeline for resolving issues, and the matter can often be resolved in as little as a single day of mediation.
3. It Protects The Children. Perhaps the greatest benefit of mediation is that the presence of a neutral third party in negotiations can help keep the focus on the best interests of the children, and help to defuse some of the animosity that the adversarial litigation process can stir up. Custody trials often require that children be interviewed by experts, and they may even be required to appear in court. By settling your issues out of court through mediation, you can save your children from the harmful effects of seeing their parents fight one another at trial.
4. There Is More Confidentiality. At trial, you have to "air your dirty laundry" in a room full of strangers - open to the public - in which a court reporter is recording every word you say to create a public record. All of the intimate details of your failed relationship will be memorialized. In mediation, all communications remain privileged and confidential. The only thing that will leave the mediation is your settlement agreement. All other communications made during the course of the mediation remain confidential - never to see the light of day.
5. You're in Control. In mediation, the parties get to control the process. You get to control the discussion and choose what to settle. You, not the court, have final say over the terms of your settlement agreement.
6. There is More Personal Attention. It is pretty common for a client to want their "day in court". They want to express themselves and tell their side of the story. Unfortunately, at trial this opportunity is less than ideal. The scope of what you get to say will likely be greatly limited by the attorney doing the questioning. In mediation, however, you will get to fully express yourself. Since you get to control the discussion, you can talk about whatever issues you feel are most important to you. You are far more likely to feel satisfied with your day in court if it is actually a day spent in mediation.
7. Increased Scheduling Flexibility. Waiting for a court date can be one of the more frustrating aspects of traditional litigation. Even when you finally do get a trial date set, you'll likely have to take days off of work since the courts are only open 9-5. Mediation is far more flexible. Mediation sessions can be scheduled in the evenings or even on weekends. You can plan your mediation around your existing schedule.
8. It Can Improve Post-Divorce Stability. The adversarial nature of litigation can create an us-against-them mentality while the parties fight over finances, property, and custody. Realistically, however, if you have children you will still be in each others lives moving forward post-divorce. Mediation can improve communication between parties - something that will be required post-divorce. Additionally, mediation can lead to improved understanding of one another and facilitate collaborative problem solving, which will help when issues arise in co-parenting.
Tax Concerns Related to Divorce
The significance of the tax implications of a divorce can not be overstated. The valuation of any proposed settlement agreement must include a close inspection of the likely tax effects. An agreement's value to a client cannot be accurately measured without understanding the tax consequences any proposed agreement may produce. The type of alimony one agrees to pay, for example, can have a significant impact on whether or not alimony payments are tax deductible - which can drastically alter an agreement's worth. I always recommend that clients meet with a tax specialist during the representation. The Law Office of Jonathan T. Day, PLLC maintains relationships with tax professionals so that clients can have access to exactly the expertise that they need. With that in mind here are some general answers to some of the most frequent tax questions divorcing couples may have.
Should I file jointly or separately?
What was your marital status on the last day of the taxable year? If your divorce was final on or before December 31, you must each file separately as single or head of household for that year. If the divorce was not final by the end of the year you must file as a married couple for that year (either jointly or married filing separately).
Is alimony taxable?
Alimony payments are taxable, and therefore may be claimed as a tax deduction for the payor and as taxable income for the payee (the person receiving the alimony payments). However, not all forms of Mississippi alimony are tax deductible. In order for a payment to qualify as alimony under the Internal Revenue Code the payment obligation must terminate on the death of the payee. Of the four types of Mississippi alimony, only two meet the Internal Revenue Code's requirements - periodic alimony and rehabilitative alimony. Just because you are paying alimony in Mississippi does not mean that you automatically qualify for an alimony tax deduction.
Is child support taxable?
No. Child support is not taxable and cannot be claimed as taxable income nor as a tax deduction.
Who gets to claim the children on their taxes?
By default, the custodial parent (defined as the parent who has custody for the greater part of the year) is entitled to the dependency exemption. However, the custodial parent may waive the exemption by use of IRS Form 8332. Additionally, how tax credits and exemptions are to be divided can be determined by agreement, allowing for parents to split them evenly or for a non-custodial parent to claim credits or exemptions ordinarily reserved for the custodial parent.
How do divorcing couples divide assets for tax purposes?
After you divorce is final, asset division and corresponding tax liabilities will be laid out in your settlement agreement. If you are filing taxes in the middle of the divorce process, however, asset division and taxes can be rather complex - especially for high asset couples. Here are some things to think about:
TIP: Take a look at IRS Publications 503 & 504.
IRS Publications 503 and 504 are references for separated and divorced couples. Publication 503 covers child and dependent care expenses. Publication 504 is a general reference for a broad number of divorce issues including alimony, filing status, exemptions, etc. The publications can easily be found by google search.
Of course this only scratches the surface of the tax implications a divorce may have, and how they may influence the value of a settlement agreement. These are simply some of the more common concerns. It is critical that you hire a divorce lawyer to help you negotiate for the best agreement possible, and speak with an accountant about all of the tax concerns surrounding your divorce.
Should I file jointly or separately?
What was your marital status on the last day of the taxable year? If your divorce was final on or before December 31, you must each file separately as single or head of household for that year. If the divorce was not final by the end of the year you must file as a married couple for that year (either jointly or married filing separately).
Is alimony taxable?
Alimony payments are taxable, and therefore may be claimed as a tax deduction for the payor and as taxable income for the payee (the person receiving the alimony payments). However, not all forms of Mississippi alimony are tax deductible. In order for a payment to qualify as alimony under the Internal Revenue Code the payment obligation must terminate on the death of the payee. Of the four types of Mississippi alimony, only two meet the Internal Revenue Code's requirements - periodic alimony and rehabilitative alimony. Just because you are paying alimony in Mississippi does not mean that you automatically qualify for an alimony tax deduction.
Is child support taxable?
No. Child support is not taxable and cannot be claimed as taxable income nor as a tax deduction.
Who gets to claim the children on their taxes?
By default, the custodial parent (defined as the parent who has custody for the greater part of the year) is entitled to the dependency exemption. However, the custodial parent may waive the exemption by use of IRS Form 8332. Additionally, how tax credits and exemptions are to be divided can be determined by agreement, allowing for parents to split them evenly or for a non-custodial parent to claim credits or exemptions ordinarily reserved for the custodial parent.
How do divorcing couples divide assets for tax purposes?
After you divorce is final, asset division and corresponding tax liabilities will be laid out in your settlement agreement. If you are filing taxes in the middle of the divorce process, however, asset division and taxes can be rather complex - especially for high asset couples. Here are some things to think about:
- If you are selling your home, mortgage and property deductions are typically divided equally. However, you may want to speak with your accountant about cost-basis issues.
- If you are buying out the equity in your home, the spouse that has bought the home is usually entitled to any mortgage and property tax deductions.
- If you will be liquidating a 401k or an IRA, keep in mind that income gained from the liquidation of such accounts is taxed (except Roth accounts). A Qualified Domestic Relations Order (QDRO) will allow you to divide retirement accounts and potentially avoid taxes if transferred to a qualified retirement plan within certain time restrictions.
- If you are in the middle of a divorce and not sure what to do regarding property division, consider filing jointly or simply dividing deductions equally.
TIP: Take a look at IRS Publications 503 & 504.
IRS Publications 503 and 504 are references for separated and divorced couples. Publication 503 covers child and dependent care expenses. Publication 504 is a general reference for a broad number of divorce issues including alimony, filing status, exemptions, etc. The publications can easily be found by google search.
Of course this only scratches the surface of the tax implications a divorce may have, and how they may influence the value of a settlement agreement. These are simply some of the more common concerns. It is critical that you hire a divorce lawyer to help you negotiate for the best agreement possible, and speak with an accountant about all of the tax concerns surrounding your divorce.
The Litigation Process: Understanding the Procedure of Your Divorce
Now that you understand the legal basics of divorce, it is also helpful to understand the process - the timeline of events in your case. The legal system can be very confusing to those who are not familiar with it. A lot of the names and concepts are things people have never heard of before, and confusion can make an already stressful process even more worrisome. Hopefully, reading the information presented here will help you to better understand the mechanics of the divorce process, and perhaps alleviate some stress. The process can be broken down into four major phases:
I: Commencement of the Lawsuit
The Complaint
The litigation process begins with the filing of a complaint. This means that someone has given papers to the court describing who the parties to the lawsuit are, and setting forth what they want from the court (here, a divorce). The person who files the lawsuit may sometimes be referred to as the plaintiff or complainant. The person 'being sued' may sometimes be referred to as the defendant or respondent.
Service of Process
The complaint must also be 'served' (given) to the person whom the complaint was filed against. A sheriff, constable, or a hired process server will seek out and deliver the complaint to the person being sued. the process server will also confirm in writing to the court that they delivered a copy of the complaint to the defendant.
The Answer
Once the defendant has been served with the complaint, an answer is usually required. The answer must be in writing and admit or deny all statements and allegations made in the complaint. The answer must be sent both to the clerk of the court where the lawsuit was filed, and the opposing party, within a certian period of time.
Counter-Claims
It is not uncommon in divorce cases for the person who has been sued to want to sue back. Rather than filing a separate complaint, the defendant need only incorporate a counter-claim into their answer. The original plaintiff will then need to file an answer to the counter-claim.
The Temporary Hearing
Shortly after the filing of the complaint is the temporary hearing. Because divorce can take a long time, the court intervenes early on in the process to ensure that the parties are taken care of while the divorce is pending. The temporary hearing can address all of the issues of the divorce including, custody, support, and alimony. The goal of the hearing is to maintain the "status quo" while the case is ongoing.
II: Information/Evidence Gathering and Trial Preparation
Discovery
After all the complaints, answers, and counter-claims have been filed and served, the discovery process begins. Discovery is the portion of the process during which the parties find out all of the information they want to know about the other side. The discovery process can vary greatly in length depending on the circumstances and complexities of the case. The discovery process itself can be broken down into several distinct elements:
I: Commencement of the Lawsuit
The Complaint
The litigation process begins with the filing of a complaint. This means that someone has given papers to the court describing who the parties to the lawsuit are, and setting forth what they want from the court (here, a divorce). The person who files the lawsuit may sometimes be referred to as the plaintiff or complainant. The person 'being sued' may sometimes be referred to as the defendant or respondent.
Service of Process
The complaint must also be 'served' (given) to the person whom the complaint was filed against. A sheriff, constable, or a hired process server will seek out and deliver the complaint to the person being sued. the process server will also confirm in writing to the court that they delivered a copy of the complaint to the defendant.
The Answer
Once the defendant has been served with the complaint, an answer is usually required. The answer must be in writing and admit or deny all statements and allegations made in the complaint. The answer must be sent both to the clerk of the court where the lawsuit was filed, and the opposing party, within a certian period of time.
Counter-Claims
It is not uncommon in divorce cases for the person who has been sued to want to sue back. Rather than filing a separate complaint, the defendant need only incorporate a counter-claim into their answer. The original plaintiff will then need to file an answer to the counter-claim.
The Temporary Hearing
Shortly after the filing of the complaint is the temporary hearing. Because divorce can take a long time, the court intervenes early on in the process to ensure that the parties are taken care of while the divorce is pending. The temporary hearing can address all of the issues of the divorce including, custody, support, and alimony. The goal of the hearing is to maintain the "status quo" while the case is ongoing.
II: Information/Evidence Gathering and Trial Preparation
Discovery
After all the complaints, answers, and counter-claims have been filed and served, the discovery process begins. Discovery is the portion of the process during which the parties find out all of the information they want to know about the other side. The discovery process can vary greatly in length depending on the circumstances and complexities of the case. The discovery process itself can be broken down into several distinct elements:
- Interrogatories are written questions that one side asks the other. Interrogatories are often seeking to discover additional avenues of information. Questions may ask about witnesses the other party has or is planing to use, certain documents, or any proof or evidence supporting a claim or position.
- Requests for Production of Documents are pretty much what they sound like. One party requests the other to turn over relevant documents.
- Requests for Admissions may be used as well. In these requests, one side will present the other with facts and ask the other party to either admit or deny them.
- Depositions are formal interviews where lawyers ask questions of a party or a witness. A court reporter will be present at the deposition, taking down everything that is said to create a transcript. Transcripts of depositions may be used later at trial if the trial testimony of a party or witness is different than the responses given during the deposition.
- Subpoenas are a powerful tool that allow persons involved in a lawsuit to compel people and witnesses to appear for depositions or to turn over evidence. Subpoenas are useful when a party is seeking information from someone who will not, or may not be allowed to, cooperate. This is helpful in obtaining banking and employment records that bank and companies could not voluntarily produce.
Motions
Motions are used when a party needs the assistance of the court to get something done during the litigation process. Motions are most often a result of a failure of opposing parties to cooperate. One example of motion usage might be a motion to compel if one party has failed to respond to discovery requests.
Mediation
Mediation is a form of alternative dispute resolution where a neutral third party, the mediator, is hired by the parties to help facilitate a settlement agreement. The mediator is not a decision-maker - it is not the mediator's job to determine "who wins". Instead, the mediator will attempt to open up lines of communication between the parties and assist in reaching a mutually agreeable, workable solution. Mediation may be conducted at any time in the process prior to trial, but normally occurs after discovery but before trial. Mediation is virtually always more cost effective for the client versus going to trial. Additionally, mediation has the added benefit of allowing the parties to determine the outcome of the case, rather than the outcome being dictated by a judge.
III: Trial
III: Trial
Trial
Since most cases are ultimately settled, very few divorce cases make it all the way to trial. A divorce trial may last as short as half a day or as long as two or three days depending on the complexity of the case and the number of issues remaining for the court to resolve. At trial, both sides will call witnesses and introduce documents that support their positions to the court. Each lawyer has the right to question the other side's witnesses (via cross-examination), though it may not always be necessary. After all witnesses have been heard, and both sides have introduced all of their evidence, the Chancellor (what the judges are called in divorce court) will make a decision.
IV: Post-Judgment
IV: Post-Judgment
Appeal
If you are unhappy with the Chancellor's decision you have the right to 'appeal' to the Mississippi Supreme Court to review the decision. Appeals are very expensive and slow (usually taking a couple of years). If you decide that you do want to appeal though, it is important to let your attorney know, because the appeal must be made within thirty days of the court's decision.
Modifications
Even after a final judgment has been entered in your case, child custody as well as child support and alimony obligations may be later modified if a material change in circumstances occurs. A modification may increase, decrease, or terminate alimony or child support payments, or may alter who has primary custody of children.
Modifications
Even after a final judgment has been entered in your case, child custody as well as child support and alimony obligations may be later modified if a material change in circumstances occurs. A modification may increase, decrease, or terminate alimony or child support payments, or may alter who has primary custody of children.
That, in a nutshell, is the litigation process. I know it is a lot to think about and keep track of - that is part of why it is crucial that you hire a divorce and family law attorney to represent you. I hope you know more now about the legal process than you did before, and that your new found knowledge will help provide you with a sense of confidence about your case - knowledge is power.
Intro to Alimony
Alimony is probably one of the most complicated aspects of a Mississippi divorce. Chancellors have a lot of discretion in making alimony awards. Unlike child support, there are no statutory percentages to help guide judges or attorneys in determining the amount of an alimony award or agreement.
Since Mississippi adopted equitable distribution in 1994, alimony has become a secondary way to achieve financial equity between parties. First the court will divide the property, and if after distribution one party's assets and income are not sufficient to to meet reasonable expenses - the court may look to alimony to make up for the deficit.
In Mississippi there are four distinct types of alimony that can be awarded:
Permanent Alimony is an ongoing monthly support payment. It terminates at the death of either party - or if the party receiving the payment gets remarried. Permanent alimony may also be terminated upon the recipient's cohabitation (living with a new boyfriend or girlfriend).
Lump Sum Alimony is a fixed, certain amount that is vested at the time that the order is entered, even if paid in installments. It cannot be modified. It does not terminate at the payee's death or remarriage. It does not terminate at the payor's death, but survives as an obligation of the payor's estate.
Rehabilitative Alimony is designed to serve as temporary support for a spouse who may become employed after some training or job searching - it is assistance to help an individual in the process of becoming self-supporting. Courts have stated that the purpose of rehabilitative alimony is to avoid a spouse becoming destitute in between divorce and reaching financial independence. Usually, rehabilitative alimony awards are shorter in duration - typically for no more than two or three years. Like permanent alimony, rehabilitative alimony terminates at the death of either the payor or payee. Unlike permanent alimony, rehabilitative alimony may not automatically terminate upon remarriage of the recipient party.
Reimbursement Alimony is the most recently developed type of alimony, having been created by the Mississippi Supreme Court in 1999. Reimbursement alimony is designed to repay one spouse that has supported the other through school before the couple has acquired any assets reflecting the educational investment. It is typically made in the form of a lump sum - and therefore is is not modifiable and does not terminate at the death or remarriage of either party.
Each alimony type has its benefits and its shortcomings. Working with a divorce lawyer to determine which type - or combination of types - of alimony will be in your best interest over the long term is of the utmost importance. Which type of alimony you are ultimately awarded or agree to will have a significant impact on your obligations down the road, and when or if you may be able to modify or terminate payments.
Since Mississippi adopted equitable distribution in 1994, alimony has become a secondary way to achieve financial equity between parties. First the court will divide the property, and if after distribution one party's assets and income are not sufficient to to meet reasonable expenses - the court may look to alimony to make up for the deficit.
In Mississippi there are four distinct types of alimony that can be awarded:
Permanent Alimony is an ongoing monthly support payment. It terminates at the death of either party - or if the party receiving the payment gets remarried. Permanent alimony may also be terminated upon the recipient's cohabitation (living with a new boyfriend or girlfriend).
Lump Sum Alimony is a fixed, certain amount that is vested at the time that the order is entered, even if paid in installments. It cannot be modified. It does not terminate at the payee's death or remarriage. It does not terminate at the payor's death, but survives as an obligation of the payor's estate.
Rehabilitative Alimony is designed to serve as temporary support for a spouse who may become employed after some training or job searching - it is assistance to help an individual in the process of becoming self-supporting. Courts have stated that the purpose of rehabilitative alimony is to avoid a spouse becoming destitute in between divorce and reaching financial independence. Usually, rehabilitative alimony awards are shorter in duration - typically for no more than two or three years. Like permanent alimony, rehabilitative alimony terminates at the death of either the payor or payee. Unlike permanent alimony, rehabilitative alimony may not automatically terminate upon remarriage of the recipient party.
Reimbursement Alimony is the most recently developed type of alimony, having been created by the Mississippi Supreme Court in 1999. Reimbursement alimony is designed to repay one spouse that has supported the other through school before the couple has acquired any assets reflecting the educational investment. It is typically made in the form of a lump sum - and therefore is is not modifiable and does not terminate at the death or remarriage of either party.
Each alimony type has its benefits and its shortcomings. Working with a divorce lawyer to determine which type - or combination of types - of alimony will be in your best interest over the long term is of the utmost importance. Which type of alimony you are ultimately awarded or agree to will have a significant impact on your obligations down the road, and when or if you may be able to modify or terminate payments.
Child Custody Basics
In Mississippi all custodial decisions are determined by what is in the best interest and welfare of the child. The Mississippi Supreme Court has enumerated factors that the court is to consider for analyzing a child's best interests. However, just like with property division, there is no formula for determining or predicting custody determinations. Each case will be decided on its own merits.
The factors that the court will consider, known as the Albright factors, are:
This list is not exhaustive - courts do consider other factors (such as the separation of siblings). Also keep in mind that it is not formulaic; a parent that "wins" on more factors is not automatically entitled to custody. Similarly, not all factors are given equal weight, and it is possible for one or two factors to be determinative. Chancellors are given a lot of discretion in making custody decisions.
The factors that the court will consider, known as the Albright factors, are:
- The age, health, and sex of the child.
- Which parent had continuing care of the child prior to separation.
- Which parent has the best parenting skills.
- Which has the willingness and capacity to provide primary child care.
- The employment responsibilities of both parents.
- The physical and mental health and age of parents.
- Emotional ties of the parent and child.
- The parents' moral fitness.
- The child's home, school, and community record.
- The preference of a child at the age of twelve.
- Stability of the home environment and employment of each parent.
- Other relevant factors.
This list is not exhaustive - courts do consider other factors (such as the separation of siblings). Also keep in mind that it is not formulaic; a parent that "wins" on more factors is not automatically entitled to custody. Similarly, not all factors are given equal weight, and it is possible for one or two factors to be determinative. Chancellors are given a lot of discretion in making custody decisions.
If you are fighting for custody of your children it is in your best interest to contact a family lawyer.
Intro to Division of Property in Divorce
The most important thing to know about property division in divorce is that determinations will be made on a case by case basis. There are factors that the court will consider that are the same for all cases, but how those factors will be weighed and considered by the court will vary drastically from one case to the next depending on the particular facts and circumstances of each individual matter.
There are, however, a few things to keep in mind when it comes to the division of property in Mississippi:
There are, however, a few things to keep in mind when it comes to the division of property in Mississippi:
- The property to be divided incident to divorce is "marital property." Marital property has been defined as "any and all property acquired or accumulated during the course of the marriage."
- Generally speaking, inherited property and gifted property are considered separate property or "non-marital" property for purposes of the division of marital assets, and are therefore usually not subject to division - so long as the separate property hasn't commingled with marital property. Although if after equitable distribution one party still has unmet financial needs the court may consider alimony based on the value of non-marital assets to make up the difference.
- There is a clear presumption in Mississippi that the contributions of each spouse whether economic, domestic or otherwise are of equal value. This means that if one spouse works for a living while the other stays home with the children they stand equal for purposes of property division.
- Whose name the title to marital property is in should generally not be a concern. Who "has title" is not necessarily the deciding factor in property division.
- Assets produced solely by the earnings of one spouse (such as pension plans) may still be subject to division.
- Equitable distribution does not mean a 50/50 split of all marital assets.
This list merely represents the tip of the iceberg. Outcomes of property divisions are like snowflakes, no two are exactly the same. Each case will be determined on its own merits. If you are facing a divorce it is in your best interest to contact a divorce attorney.
The Initial Consultation: What to Expect From The First Appointment With Your Lawyer
At The Law Office of Jonathan T. Day, PLLC, we understand that no one envisions themselves sitting across the desk from a divorce lawyer. In order to find yourself at our office, your life has likely reached a level of such turmoil that you do not know where to turn or what to do next. It is not uncommon to feel distraught and anxious about the first meeting with your attorney. Here we hope to set your mind at ease by letting you know what to expect from that first meeting, and how you can prepare yourself to make it as productive as possible.
At an initial consultation, your attorney will try to determine a number of things, such as:
At an initial consultation, your attorney will try to determine a number of things, such as:
- What are the reasons for the divorce?
- Is there a provable fault ground for which either party could be granted a divorce?
- Who has played the predominant role in child rearing?
- The financial situation - getting a general picture.
- The client's goals and objectives for the representation. What does the client want to achieve? What would be their best-case-scenario or most desired outcome?
Once the attorney has an idea of the facts, he will advise you on the laws of divorce, separation, division of property, child custody, and spousal and child support. After informing you of the law, your attorney will lay out possible alternative courses of action, and discuss the next steps after determining which direction is in your best interests and consistent with your goals. You do not have to decide right away. This is a big decision and we understand the need to carefully consider your options now that you have been informed of your rights.
In some cases, however, clients are here because they have decided what they need and are ready to take action. These are some things you can bring to your appointment to ensure the initial consultation gives your attorney an opportunity to get your case off to a good start:
- Court Documents: Has there already been a court filing? Has your spouse already filed for divorce and served you? It is critical that you bring whatever court documents you have to the consultation, and know the date on which you received them. If you are seeking post-divorce relief, it is crucial that your bring the last order entered by a court.
- Financial Documents: In addition to getting a general financial picture, the attorney will be interested in determining what assets were acquired prior to the marriage, what assets were acquired during the marriage, and which assets - if any- were acquired by gift or inheritance. Some relevant documents to bring to the appointment include:
- Any financial statements prepared for lenders. (Ex: financial statements filled out as part of a loan or mortgage application.)
- The most recent pay stubs for both parties - if available.
- The most recent statements for any savings accounts, stocks, pension plans, and retirement accounts.
- Tax returns for the last three years.
- A social security earnings history - if available.
- A Timeline of Events From The Marriage: This can be pretty basic for the initial consultation.
- Proof of Fault: Any evidence that you may have of misconduct by your spouse that could give rise to a fault ground for divorce. (Ex: telephone records, copies of Facebook posts/Tweets, video or audio recordings, letters, pictures of bruises or other signs of abuse, bills from doctors or psychiatrists as a result of abuse.)
- The Truth: We know that it is tempting to withhold what are generally considered private details from your attorney - especially those you may consider to be embarrassing or those that would reveal fault. However it is absolutely crucial that you reveal all relevant information to the attorney and answer your attorney's questions as fully and truthfully as possible. Remember that this is a safe space and we are not here to pass judgement. Keeping information from your attorney does not protect you. Your attorney needs to know all of the facts to devise the best case strategy he can to protect your interests. You do not want your attorney to hear anything for the first time when your spouse brings it up at trial.
- Payment: Frequently it is important that your spouse does not know about the appointment. Seek a payment method which would be difficult or impossible for your spouse to detect, such as cash, cashier's check, money order, or by check from an account to which your spouse does not have access.
We know meeting with a family lawyer is not easy. Hopefully by knowing what to expect and being prepared, you can alleviate some of the stress associated with the initial consultation. If you wish to educate yourself further on divorce issues prior to your first appointment, be sure to browse the posts on this blog.
The Possible Pitfalls of An Irreconcilable Differences Divorce
As I talked about in Divorce Basics, an irreconcilable differences divorce is frequently the best option for both parties. Agreeing to the terms of the settlement agreement typically yields better results and minimizes resentment as to the terms of the agreement. You will almost always be happier with an agreement you had a hand in drafting than with a settlement agreement dictated by the court. While all of that is true, attempting to reach a fair settlement agreement with your soon to be ex-spouse is rarely a walk in the park - and the agreement requirement of the irreconcilable differences divorce in Mississippi can sometimes play a central role in the difficulty.
In order to be granted a divorce for irreconcilable differences it is required that the parties must agree to be divorced. If one party does not consent to be divorced, a divorce can not be granted on irreconcilable differences. This required agreement can become problematic because at any time until the entry of divorce one party may withdraw its consent. For example, two parties have agreed to an irreconcilable differences divorce and have spent months negotiating back and forth to come up with a settlement agreement, investing a lot of time, emotion, and money to reaching an agreement - and then one side withdraws consent.
When this does occur it is usually because the party withdrawing consent is not satisfied with how negotiations are going and believes they could obtain a more favorable agreement by pursuing a divorce on fault grounds and allowing the chancellor to equitably distribute the property. Or they may believe that if they simply 'wait out' the opposing party, eventually they will want a divorce bad enough that they will concede to an agreement more favorable to the party withdrawing consent.
This type of maneuver is sometimes referred to as 'divorce blackmail', and it can be particularly frustrating when the party seeking to be divorced does not have sufficient evidence or circumstances to be granted a divorce on fault grounds. As long as the opposing party withholds consent, there will be no divorce. This can be particularly frustrating for clients who have invested time and money into the process because they are seeking to get out of a bad marriage and can not understand why they can't be divorced without their spouses approval.
While irreconcilable differences can frequently be the best option for both parties, it still has room for improvement.
In order to be granted a divorce for irreconcilable differences it is required that the parties must agree to be divorced. If one party does not consent to be divorced, a divorce can not be granted on irreconcilable differences. This required agreement can become problematic because at any time until the entry of divorce one party may withdraw its consent. For example, two parties have agreed to an irreconcilable differences divorce and have spent months negotiating back and forth to come up with a settlement agreement, investing a lot of time, emotion, and money to reaching an agreement - and then one side withdraws consent.
When this does occur it is usually because the party withdrawing consent is not satisfied with how negotiations are going and believes they could obtain a more favorable agreement by pursuing a divorce on fault grounds and allowing the chancellor to equitably distribute the property. Or they may believe that if they simply 'wait out' the opposing party, eventually they will want a divorce bad enough that they will concede to an agreement more favorable to the party withdrawing consent.
This type of maneuver is sometimes referred to as 'divorce blackmail', and it can be particularly frustrating when the party seeking to be divorced does not have sufficient evidence or circumstances to be granted a divorce on fault grounds. As long as the opposing party withholds consent, there will be no divorce. This can be particularly frustrating for clients who have invested time and money into the process because they are seeking to get out of a bad marriage and can not understand why they can't be divorced without their spouses approval.
While irreconcilable differences can frequently be the best option for both parties, it still has room for improvement.
Divorce Basics
In Mississippi, there are two different ways by which one can obtain a divorce.
One way is through 'fault' grounds - fault grounds include adultery, cruel and inhuman treatment, habitual drunkenness, habitual drug use, and desertion. When a fault ground exists, it is typically because one party is more to blame for the failure of the marriage. When a party has a fault based ground for divorce - for example their spouse has committed adultery - the party may be granted a divorce by the court even if there is no agreement between spouses to be divorced.
The other way in which one can obtain a divorce in Mississippi is through 'irreconcilable differences'. Irreconcilable differences requires agreement of the parties, unlike a divorce obtained on a fault ground, and is sometimes referred to as a 'No-Fault' divorce. An irreconcilable differences divorce can come about in a couple of ways. First, the parties could agree to every aspect of the divorce including custody and visitation arrangements, division of property, and support. Alternatively, the parties may agree to divorce, but can not agree on all the issues. In this situation the parties may elect to have a trial in which the court decides issues that the parties can not agree on.
By far, most divorces in Mississippi are granted for irreconcilable differences. Even when a complaint is filed based on fault grounds it is common place to alternatively request a divorce based on irreconcilable differences in case the parties agree to settle. Most of the time, if a reasonable agreement can be made, it is in the best interest of both parties to do so for a couple of reasons. First, it saves the parties the cost of extensive discovery, trial preparation, and the actual trial which can significantly drive up the cost of a divorce. Second, most people tend to be more satisfied with a settlement agreement that they had a hand in negotiating and drafting versus having the court decide for them. Additionally, it saves the family from the sometimes irreparable harm that can come as a result of litigating a fault ground based divorce. This is especially true when there are children involved.
While irreconcilable differences divorces are the most common, and can frequently provide the best outcome for both parties, they don't always provide the best resolution. Next time we will discuss why the requirement that the parties must agree can be problematic.
One way is through 'fault' grounds - fault grounds include adultery, cruel and inhuman treatment, habitual drunkenness, habitual drug use, and desertion. When a fault ground exists, it is typically because one party is more to blame for the failure of the marriage. When a party has a fault based ground for divorce - for example their spouse has committed adultery - the party may be granted a divorce by the court even if there is no agreement between spouses to be divorced.
The other way in which one can obtain a divorce in Mississippi is through 'irreconcilable differences'. Irreconcilable differences requires agreement of the parties, unlike a divorce obtained on a fault ground, and is sometimes referred to as a 'No-Fault' divorce. An irreconcilable differences divorce can come about in a couple of ways. First, the parties could agree to every aspect of the divorce including custody and visitation arrangements, division of property, and support. Alternatively, the parties may agree to divorce, but can not agree on all the issues. In this situation the parties may elect to have a trial in which the court decides issues that the parties can not agree on.
By far, most divorces in Mississippi are granted for irreconcilable differences. Even when a complaint is filed based on fault grounds it is common place to alternatively request a divorce based on irreconcilable differences in case the parties agree to settle. Most of the time, if a reasonable agreement can be made, it is in the best interest of both parties to do so for a couple of reasons. First, it saves the parties the cost of extensive discovery, trial preparation, and the actual trial which can significantly drive up the cost of a divorce. Second, most people tend to be more satisfied with a settlement agreement that they had a hand in negotiating and drafting versus having the court decide for them. Additionally, it saves the family from the sometimes irreparable harm that can come as a result of litigating a fault ground based divorce. This is especially true when there are children involved.
While irreconcilable differences divorces are the most common, and can frequently provide the best outcome for both parties, they don't always provide the best resolution. Next time we will discuss why the requirement that the parties must agree can be problematic.
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