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.

In contrast, the Court of Appeals recently held in Cotton v. Cotton, 44 So. 3d 371 (Miss. Ct. App. 2010), that a woman was entitled to her fair share of the assets accumulated during a marriage which was deemed by the court to be invalid (she failed to obtain a divorce from her first husband before marrying her second husband). In Cotton, the Court of Appeals upheld the chancellor's decision to award distribution of the couple's property between the man and woman as if they had been legally married. Ordinarily, unmarried persons would not be entitled to the benefits of marriage where there is not a valid marriage, including the distribution of property in the event of a split-up.

Cotton is distinguishable from Davis because the Court in Cotton acknowledged that although a couple is not married, when they live together and both contribute to the accumulation of personal property or real property, a party having no legal title to the property does gain rights to their fair share of the property. However, the remedy of equitable distribution is only available where the couples presented themselves as a married couple and acquired property through their joint efforts.

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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.

If the previous situations do not apply to you, there still may be a chance to gain grandparent visitation rights. You may seek rights to visitation in chancery court. In this situation, you will be required to show that you have a "viable relationship" with your grandchild and that you are being unreasonably denied access to visit with your grandchild. In this situation, a viable relationship means that you have supported your grandchild financially in whole or in part for at least six (6) months prior to seeking grandparent visitation and that you have had frequent visitation with your grandchild, including occasional overnight visits, for a period of at least one (1) year prior to seeking visitation rights. You will also be required to show that your visitation with your grandchildren will be in their best interest. Judges want to provide a chance to maintain preexisting relationships between children and their grandparents as long as the relationship will benefit the children and not cause too much conflict among families.

To recap, grandparent visitation may be awarded in the following scenarios:

1. Your child has either not been granted custody of their child or their parental rights have been terminated (Type 1 visitation);
2. Your child is deceased (Type 1 visitation); or,
3. You previously have had a viable relationship with your grandchildren and your visitation with the children would be in your grandchild's best interest (Type 2 visitation).

Source: Miss. Code Ann. §93-16-3.

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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?

The answer to this question is simple: It depends. Mississippi courts generally try to keep siblings together, but the decision hinges on the facts and circumstances of each case. The Mississippi Supreme Court has said time and time again that when circumstances do not require the separation of children, the courts should make a strong attempt to keep the siblings together. The Supreme Court has also said that siblings may be separated if circumstances dictate that division of the siblings is in their best interest. So the courts' determination of keeping siblings together or splitting them up depends primarily on the facts of the case.

In fact, Mississippi courts have also said that there is no general rule that it is in the best interests of the siblings to remain together. (Conversely, the Supreme Court has held that there is no general rule that it is in the best interests of the siblings to separate.) That is to say, one should not even presume that siblings automatically will be kept together in a custody dispute. While courts will try to keep the siblings together, circumstances may exist that make keeping siblings together not in the "best interests" of the children.

For example, in one case the court separated siblings partially because the thirteen-year-old older brother expressed a strong desire to live with his father. Another case found the court separating siblings only after determining that both father and mother were fit to raise children. In another case the court had no trouble separating half-siblings.

It must be noted, however, that courts have been less reluctant to separate the siblings when the custody arrangements are favorable in terms of maintaining a familial bond. For instance, if siblings are split between the parents, but the terms of custody stipulate that the siblings see each other every weekend and at all holidays, Mississippi courts have been less reluctant to separate the siblings. If the separated siblings will attend the same school, the courts have been more willing to acquiesce. Basically, if the negative effects of separation can be mitigated as much as possible, the court will take that into account when making the determination.

To conclude, while there is technically no presumption that keeping siblings together or splitting them up is in the siblings' best interests, it seems that Mississippi courts will more often than not lean towards keeping siblings together. But at the end of the day, sibling custody depends on the circumstances of each case, just like any 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:

(1) if the service member has sole or joint physical custody of a child, by limiting the duration of any temporary custody orders to no longer than ten (10) days after the deployed parent returns; by prohibiting the use of the service member's deployment as a factor to be used in any custody modification action; and, by requiring that the non-deployed parent make the child available to the service member for telephonic, webcam, and email contact with the child during deployment;

(2) if the service member has visitation rights with the child and is deployed, by allowing a court to delegate the service member's visitation rights to a family member with a close and substantial relationship to the minor child during the duration of the service member's absence;

(3) by allowing service members who receive deployment orders an opportunity to an expedited hearing in custody and visitation matters if certain conditions are met; and,

(4) by allowing the service member on deployment to present testimony and evidence by affidavit or electronic means in custody and visitation cases if certain conditions are met.

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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.

In determining the acceptable amount of child support, the court will first identify an individual's gross income from all sources. Income from overtime and second jobs will probably be included in gross income in Mississippi if the work remains consistent and predictable. For example, a one-time bonus or a one time job (i.e.,security guard at a single event) may not be required to be included in gross income, while a regular annual bonus or reoccurring second job (i.e., security guard at multiple sporting events) may be included by the court in the definition of gross income.

Once gross income is calculated, the individual's gross income is adjusted for taxes, other mandatory deductions (i.e. state retirement) and support for other children. The statutory percentages are then applied to the AGI to determine the presumptively correct amount of child support. The court may then deviate above or below this amount based on certain statutory criteria and, in addition, may order payment of expenses not considered covered by the basic child support award including health insurance, uncovered medical expenses, and college expenses.

It is important to remember that typically the obligation to pay child support will continue in Mississippi until each child reaches age twenty one (21) or is otherwise emancipated. Paying too much or too little support may create issues years down the road for both parents and children. Moreover, child support payments should always be paid in a manner that documents or records the transaction (i.e., check or money order...never cash).

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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.

So who will get custody in a dispute between natural parents? To resolve this question, Chancery Courts in Mississippi apply the presumptions above as well as the factors adopted by the Mississippi Supreme Court in Albright v. Albright, to determine which parent should have custody. These factors include:

[1] Age, health and sex of child;
[2] Continuing care of child prior to (and after) separation;
[3] Parenting skills of each parent;
[4] Capacity to provide child care and employment responsibilities;
[5] Physical and mental health and age of parents;
[6] Alcohol and drug use;
[7] Emotional ties of the parent and child;
[8] Moral fitness;
[9] Home, school and community record of child;
[10] Preference of a child twelve or older;
[11] Stability of the home environment and employment of parents; and,
[12] Other relevant factors that should be considered.

When determining custody, my experience is that a court will first apply the presumptions and, if not decisive on the custody issue, the court will then engage in a thorough Albright analysis to determine which parent should be awarded custody and why.

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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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