Gone with the Wind: Desertion and Divorce in Mississippi

July 24, 2014,

Marriage is a beautiful concept that many people are willing to embrace. But, unfortunately, the struggles of marriage becomes a concept that some people realize that they cannot, or will not, endure. When marriage gets tough, some spouses initiate their "fight" receptors and seek to endure the struggles while others seek "flight" from the marriage. Fleeing marriage and a spouse is not uncommon, and in Mississippi, desertion--or abandonment by one spouse-- may be a ground for divorce.

Under Mississippi law, "[w]illful, continued and obstinate desertion for the space of one (1) year" is grounds for divorce. MS § 93-5-1 (2014). In other words, a spouse's intentional and continued abandonment of the other (innocent) spouse for one year or longer, without interruption by reconciliation, constitutes desertion. But, if the innocent spouse "provok[ed] the defendant [offending spouse] into the acts which constitute the alleged ground[ ] for divorce," then a divorce will not be granted. Brown v. Brown, 2012-CA-00672-COA (Miss. Ct. App. Dec. 3, 2013), reh'g denied (Apr. 15, 2014) (citing Ammons v. Ammons, 144 Miss. 314, 318, 109 So. 795, 795 (1926)). Thus, the alleged offending spouse "may defend against a claim of desertion by 'set[ting] up any misconduct of [the] plaintiff which justified the separation[.]'" Id. Further, to be clear, "desertion is an act of the offending spouse in relation to the marital status and not the place where the parties reside or their domicile." N. SHELTON HAND, MISSISSIPPI DIVORCE, ALIMONY, AND CHILD CUSTODY § 4:9 (2013). Accordingly, desertion can occur even if the offending spouse remains within the marital home but is intentionally detached from the other spouse, including physical and emotional detachment.

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Sipping the Syrup Too Much: Habitual Drunkenness and Divorce in Mississippi

July 22, 2014,

Here in Mississippi, there is nothing like watching a good football game and drinking a cold beer with friends and family. Recreational drinking--and football of course--is a stapled pastime in our country. But for some, the pastime of alcohol consumption can become a serious problem. Just like a drug addiction, alcohol abuse can have a substantial negative impact on personal relationships, including marriages. In Mississippi, habitual drunkenness is one of twelve fault-based grounds for divorce. MS § 93-5-1 (2014).

Habitual drunkenness is a rarely used ground for divorce, and there is limited case law on what exactly constitutes "habitual drunkenness." Nevertheless, to succeed on a habitual drunkenness claim, a spouse must "prove that the defendant was habitually, or frequently, drunk, that the drinking adversely affected the marriage, and the habit continued at the divorce trial." BELL, BELL ON MISSISSIPPI FAMILY LAW § 4.02[6](2010) (analogizing habitual drunkenness grounds to habitual drug use grounds); see Ladner v. Ladner, 436 So. 2d 1366, 1375 (Miss. 1983) (daily use over four years was sufficient frequency to show abuse), and Smithson v. Smithson, 74 So. 149, 151 (Miss. 1917) (use must be ongoing at time of trial)).

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How High: Marijuana Use as Grounds for Divorce in Mississippi

July 17, 2014,

Habitual and excessive drug use--including excessive marijuana use--is one of twelve grounds for fault-based divorce in Mississippi. Under Mississippi law, "[d]ivorces from the bonds of matrimony may be decreed to the injured party for . . . [h]abitual and excessive use of opium, morphine or other like drug." MS § 93-5-1 (2014). A person seeking a divorce based on a spouse's habitual and excessive drug use must show that their spouse's use of drugs is (1) habitual and frequent, (2) excessive and uncontrollable, and (3) was of morphine, opium or drugs with the similar effect as morphine or opium. Lawson v. Lawson, 821 So. 2d 142, 145 (Miss. Ct. App. 2002). All three of these elements must be shown for a Chancellor to grant a divorce. In order to show "habitual drug use," a person must show that their spouse customarily and frequently used drugs; one time, or occasional, drug use is not sufficient. Ladner v. Ladner, 436 So. 2d 1366, 1374 (Miss. 1983). Essentially, the spouse accused of drug use must be characterized as a drug abuser, and "must be so addicted to the use of drugs that he cannot control his appetite for drugs whenever the opportunity to obtain drugs is present." Id.

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Reunited and It Feels So Good: The Magic of Un-Divorce in Mississippi

July 15, 2014,

Have you ever thought about un-divorcing or re-marrying your divorced spouse? For many folks, the answer is typically a stern "absolutely not," but for some, the answer could be an optimistic "maybe" because love is a strange creature that can be rekindled even after divorce. Perhaps the time apart from a divorced former spouse gives a person time to cool off, reflect on the marriage, and even develop or re-develop a passionate fondness and appreciation for their former spouse. A perceptive account of such rekindled romance may be seen in The Parent Trap (1999), a remake of a timeless Disney movie about how twin sisters on opposite sides of the globe scheme to reunite their divorced parents by switching places. In short, aside from Disney's portrayal of rekindled love, it is not inconceivable for divorced persons to reconcile and want to re-marry one another.

Mississippi law provides a mechanism for divorced former spouses to reunite and "re-marry" without all of the formalities of another marriage. Under Mississippi law, a divorce may be revoked--meaning that a divorce may be annulled or set aside as if it never happened. MS § 95-5-31 (2014). Divorce revocation, or as some have termed it "undivorce," is a rarely used tool and many people are unaware that it is even an option. But, like most legal mechanisms, there is a strict procedure that must be followed in order to revoke a divorce in Mississippi.

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Marriage Planning & the Mississippi Prenuptial Agreement

July 11, 2014,

Marriage is a beautiful thing. It signifies the matrimonial bond and lifelong commitment that two persons are willingly giving themselves to one another. But, marriage can also be an awkward experience, especially for those couples contemplating a prenuptial agreement ("prenupt") before the big day. The awkwardness surrounding prenupts can be uncomfortable and foster misconceptions about them. One of the biggest myths about prenupts is that people who want them do not truly love or trust their future spouse to be. A person's interest in a prenuptial agreement, by default, does not necessarily indicate one's uncertainty regarding the marriage, or make the commitment to marry another any less genuine. In our society, it is in our best interests to plan ahead, and that is nothing more than what a prenupt is meant to do. And given the high divorce rate in our country, planning ahead is not ill-advised.

wedding rings pic.jpg

A prenuptial agreement, also known as an antenuptual agreement, is a contractual agreement executed in contemplation of (before) marriage, which often undertakes to affect spouses' rights and obligations during the marriage, as well as on its termination by divorce or death of a spouse. Prenupts may vary in terms of simplicity and complexity. As a result, prenupts may contain a vast array of provisions that govern many different aspects of the marriage and/or a future divorce. The most recognizable prenupt provision is the infamous adultery provision that provides legal repercussions for a spouse's adulterous activity during the marriage. Basically, whatever is legally permissible to agree upon and does not violate some inherent Mississippi public policy may be included in a prenupt, including agreements in anticipation of divorce such as agreements regarding property division.

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Common Law Marriage in Mississippi

January 18, 2012,

Most people may be familiar with the term "common law marriage." Common law marriage was recognized in Mississippi up until 1956. To establish a common law marriage, a man and woman would live together, share property, and generally consider themselves husband and wife. The policy regarding common law marriage was changed by statute, and Mississippi law now requires a valid license for all marriages.

Since common law marriage is no longer recognized in Mississippi, issues may arise when a couple has lived together without the benefit of marriage and then decide to go their separate ways. Such issues may include division of property or the award of child custody. Other problems may arise if either the man or woman dies without a valid will. The survivor may have difficulty proving that he or she was intended to inherit from the deceased partner in the relationship.

The custody and support of children born to unmarried couples is routinely addressed by Chancery courts in Mississippi. However, the law in Mississippi has, until recently, been fairly clear that common law marriages will not be recognized and that upon a separation between an unmarried couple, there could be no legal division of assets accumulated during the relationship. In Davis v. Davis, 643 So. 2d 931 (Miss. 1995), for example, the Mississippi Supreme Court held that where a man and woman had lived together for thirteen years without being married, the woman was not entitled to share in the assets accumulated by her companion during their relationship.

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Grandparent Visitation Rights in Mississippi

January 18, 2012,

If you have a family member who has gone through a divorce or a custody dispute, you know that these types of cases can affect more than just the two individuals in the relationship. When children are involved in a divorce or custody matter in Mississippi, a realm of issues may arise. As a parent of one of the parties involved in this type of case, you may be wondering what rights you have to maintain your relationship with your grandchildren. The goal of the courts in addressing issues related to children is to provide for the best interest of each child. In Mississippi, grandparent visitation can be awarded by any court that has the authority to decide child custody matters. Most commonly, child custody matters are decided in Chancery courts.

Have you recently been denied access to visit with your grandchildren? If so, there may be a solution. There are several situations in Mississippi where grandparents may seek visitation. For example, if your child did not receive custody of his/her children or if your child's parental rights have been terminated, you may seek visitation with your grandchildren in the court that issued the divorce or custody decree. On the other hand, if your child has died, leaving your grandchildren in the custody of the other parent or another relative, you may seek visitation in the county where your grandchild lives.

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Sibling Custody: Stay Together or Separate?

January 18, 2012,

Custody disputes in Misssippi are never easy. Two parents are put into the untenable position of being forced to battle against each other for the right to keep and care for a child that earlier belonged to both of them. These disputes are complicated even further when, instead of just one child being at issue, there are two, three, or more brothers and sisters whose well-being are at stake. Suddenly, the court may be forced to consider whether siblings should go to one parent or be divided between the parents.

The Mississippi Supreme Court has reiterated time and time again that, in custody disputes involving multiple children, courts should strive to keep the family unit together. But the custody analysis does not change in multiple-child households. In every child custody dispute in Mississippi - even those involving more than one child - the court will follow the guidepost that custody should be awarded to the parent best able to serve the "best interests and welfare of the child."

In making this "best interest" determination, Mississippi courts have consistently and explicitly used what are called the Albright factors, so named after the 1983 case in which they were first outlined. These factors are discussed in more detail in the custody section of my blog. Even in multiple-child custody disputes, Mississippi courts still will use these factors in determining which parent will best fulfill the "best interests" of the children. So a key question necessarily comes up when siblings are involved: Is it in the "best interests" of siblings that they stay together in a custody determination?

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Custody and Visitation in Mississippi upon Parental Deployment or Mobilization.

February 22, 2011,

In my practice I have had the opportunity to assist numerous military service members with issues relating to divorce, paternity, child custody and visitation. Many of the issues these service members confront relate to custody and/or visitation problems occurring while the individual is on temporary duty or under deployment or mobilization orders ("deployed" or "deployment"). A soldier on deployment should be focused on his/her duties, not worried about whether he/she will be able to speak with the child during deployment or worried about what will happen with the child at the end of deployment. In light of these concerns, Mississippi has enacted legislation to protect the parental rights of its deployed service members.

This law, Miss. Code Ann. 93-5-34, was passed for the purpose of swiftly and efficiently resolving matters involving custody and visitation when a parent is deployed and to facilitate continued communication between parents and their minor children when a parent is deployed. This statute protects our deployed service members in the following ways:

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Senate Refuses to Create Additional Ground for Divorce in Mississippi

February 18, 2011,

Today the Mississippi Senate has defeated a bill that would have have created a 13th Ground for Divorce in Mississippi (bona fide separation for five years or longer). Senate Bill 2652 would have given a spouse grounds for divorce if he or she had been away from an abusive situation for five (5) years or longer.

The bill was defeated Thursday on a vote of 81-39 although the bill had earlier passed the Senate.

WXVT Channel 15 reports that the bill would have made it easier for spouses, usually wives, to file for divorce when that spouse leaves home to avoid domestic violence and the other spouse will not agree to filing for divorce.

State law already allows a spouse who is abandoned to file for divorce under desertion, but existing law does not address when one innocent party leaves home and the other will not give them a divorce.

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Child Visitation Rights in Mississippi

February 17, 2011,

In Mississippi, "visitation" is the time a child spends with a noncustodial parent and is a very important subject for many parents involved in divorce or custody cases. For example, a parent who is not awarded sole or joint physical custody of his or her child still wants to be an important part of the child's life and spend as much time with that child as possible. Visitation should allow continued significant contact with the child under circumstances that foster a close relationship and bond.

In Mississippi, a noncustodial parent will normally be allowed visitation with his or her child. Absent danger or other potential detriment to the child, the chancery court will normally award "standard" or "liberal" unrestricted overnight visitation to a noncustodial parent. In Mississippi, this is two (2) weekends a month until Sunday afternoon, at least five weeks of summer visitation, and alternating holiday visitation. More or less may be awarded depending on the specific facts of the case. For example, the existence of unusual work schedules, extreme geographical distance between households or disruption to a child's routine may justify deviation from standard visitation.

It is important to remember that an Order or Agreement providing for visitation should be highly structured, clearly specifying all dates of visitation, the exact times of transfer and other arrangements including which party is to bear the cost of transportation for visitation. Ambiguous visitation provisions should be carefully avoided as they routinely result in continuing post-divorce litigation.

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Child Support Guidelines in Mississippi

February 4, 2011,

In this post I have decided to write about a non-custodial parent's obligation to support his or her child in the State of Mississippi. Mississippi courts take the obligation of a parent to support a child very seriously. In Mississippi, child support is routinely awarded during a divorce, paternity, separate maintenance or custody action and the Mississippi child support guidelines provide that a "noncustodial" parent should pay the following percentage of his or her Adjusted Gross Income ("AGI") (gross income minus mandatory deductions) in support of children:

[1] 14% for one child;
[2] 20% for two children;
[3] 22% for three children;
[4] 24% for four children; and,
[5] 26% for five or more children.

The statute also provides that the guidelines are presumptively correct for individuals with an adjusted gross yearly income between $5,000 and $50,000. While the court may award an upward or downward adjustment from the guidelines based on expenses of the parents, the needs of the children, or other particular facts of the case, there are also situations where the guidelines may not apply at all. For example, the guidelines may not apply in a situation where joint physical custody is awarded, as the guidelines contemplate a situation where there is one custodial parent who spends the majority of time with the child.

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Child Custody In Mississippi

February 3, 2011,

In Mississippi, there are two types of child custody: "physical custody" and "legal custody." Physical custody is the period of time in which a child resides with a particular parent, while legal custody refers to the right of a parent to make decisions relating to the health, education and welfare of the child.

There are numerous ways that child custody may be awarded in Mississippi. A court may award joint physical and legal custody, joint legal custody with sole physical custody in one parent, joint physical custody with sole legal custody in one parent or physical and legal custody to either parent. Joint legal custody means that parents share decision-making rights with regard to the child. Moreover, when joint physical custody is awarded, a child will normally spend a significant time with both parents. Where a home has more than one child, a court may also order split custody, though there is a strong preference for keeping siblings in the same home in Mississippi.

It is important to remember that the primary or "polestar" consideration in custody cases is the "best interests and welfare of the child". Chancellors in Mississippi always determine custody based on this "best interests" approach or test. In Mississippi, it is now presumed that mothers and fathers are equally entitled to custody of their children. In addition to the presumption of equality, other presumptions also directly influence custody actions in Mississippi. These include the presumption in favor of a natural parent, the presumption against custody to a violent parent, and the presumption in favor of joint custody upon both parents request.

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Mississippi Irreconcilable Differences Divorce

January 5, 2011,

In Mississippi there are two ways to get a divorce: (1) the Irreconcilable Differences (a/k/a "No Fault") divorce and, (2) a fault-based divorce. An Irreconcilable Differences divorce (Miss. Code. Ann. § 93-5-2) is proper only if both spouses agree to be divorced on this basis. In other words, a divorce in Mississippi is not available based on one party's claim that the marriage is irretrievably broken. Instead, both parties must consent to a divorce based on Irreconcilable Differences in Mississippi or no divorce may be entered. As long as both parties agree to a divorce based on Irreconcilable Differences, any remaining issues relating to property distribution and/or child custody/support terms may made part of a settlement agreement between the parties or be submitted to the court for decision.

The statutory waiting period for an Irreconcilable Differences divorce in Mississippi is sixty (60) days from the time the joint complaint is filed. Moreover, at least one of the parties must have resided in the State of Mississippi for at least six (6) months prior to the filing of the divorce.

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