Articles Posted in MS Family Law

Paternity means having a legally recognized father. Establishing paternity is very important in family law cases and can be a huge benefit to both the father and the child. For example, establishing paternity can prevent the mother from giving the child up for adoption without the father’s consent, it can help secure financial support for the child in the form of child support, and it can help a father get custody or visitation with his child. Establishing paternity can also ensure that the child receives inheritance or social security benefits from their father. There are several ways to establish paternity, and they are all discussed below. But first, we need to talk about the different types of fathers.

What Makes a Father?

There are different types of fathers under the law. If a child is born to a married couple, the husband at the time of the child’s birth is called the “legal father.” This means that the child is legally recognized as the child of that man in the eyes of the law. This has nothing to do with whether that man is actually the biological father of the child, it only matters that the man was married to the mother of the child at the time of the child’s birth. For example, if a married woman gets pregnant as a result of an affair, her husband is recognized as the father of that child under the law until proven otherwise.

Every divorce is a stressful process, but divorces stemming from adultery might come with the most heartache and pain. Adultery is one of the 12 grounds for fault-based divorce, and one of the biggest causes of divorce in the United States.

How is Adultery Proven? 

Mississippi law defines adultery as “voluntary sexual intercourse on the part of either spouse with a person other than his or her own spouse.” Proving adultery can often be difficult. It is extremely rare for one spouse to be caught in the act of committing adultery, and it is unlikely that your spouse will admit to having an affair. Instead, adultery is most often proved by other evidence. This means that to obtain a divorce based on adultery, you must be able to show the court that your spouse had (1) an adulterous inclination (flirtatious manners) and (2) a reasonable opportunity (a private place and time) to act on that adulterous inclination.

Visitation is the time a child spends with a parent who does not have custody. Visitation is not a type of custody; it is a separate type of arrangement. If one parent gets sole custody after a separation or divorce, the other parent will have visitation with their child or children. 

Parent Visitation

In a best-case scenario, the parents can come to an agreement about a visitation schedule. This agreement should be in writing and agreed to by both parents. The agreement may cover weekday and weekend visitation, summer visitation, and visitation over school breaks like Spring Break and Thanksgiving. It is common for the noncustodial parent to have visitation over the holidays and school breaks. If the parents cannot work together to come to an agreement, the court will enter a visitation order based on what would be in the child’s best interest. This order will be very specific and will explicitly lay out the dates and times that the noncustodial parent will have visitation, where and how they should conduct pickup and drop-off, and who pays the cost of transporting the child.

Division of marital property is often a source of contention for many couples seeking divorce. Depending on how long the marriage lasted, the amount of property belonging to the couple may be small or large. But generally, the longer the marriage, the more property or “stuff” the couple has collected together. Mississippi courts divide property based on “equitable distribution,” which just means that property is divided in a way that is fair to both parties.

What is Equitable Distribution?

Equitable distribution is a method of property division that focuses on fairness. This means that assets are not necessarily divided 50/50, but are divided based on what would be fair to each spouse. It is the judge’s role to decide what would be a fair split of the property based on each spouse’s situation. Equitable does not mean equal, it just means a fair division. There are

When parents separate or divorce, one of the main things they will have to figure out is how to share custody of their child or children. Parents can come to an agreement about how they want to share child custody, or they can leave it up to a judge to decide. Either way, the judge will have to look at what is in the child’s best interest to determine what type of custody arrangement would be best for the family. There are two types of child custody: physical custody and legal custody.

Physical Custody vs Legal Custody

Physical custody means which parent the child primarily lives with. Both parents can share physical custody, which means that the child spends a significant amount of time with each parent. Or one parent can have sole physical custody. Physical custody also determines which parent is making day to day decisions for the child.

Alcohol addiction can quickly tear a family apart. It is important that people who struggle with addiction get proper treatment to help them overcome their addiction. It is equally important for innocent spouses to consider divorce in instances where the other spouse’s alcohol usage places a heavy burden on the marriage. When you are ready to leave your spouse and file for divorce, one of the ways you can do it is by showing that your spouse is a habitual alcohol user, and this alcohol addiction negatively impacts your marriage and family life.

How to Prove Habitual Drunkenness

One way of filing for divorce in Mississippi is to file based on some marital fault. This simply means that the spouse filing for divorce claims that the other spouse did something wrong or engaged in harmful behavior, and that wrongdoing is the direct cause of the divorce. One of the marital faults that a divorce can be based on is habitual drunkenness. To show habitual drunkenness, the spouse filing for divorce must show that (1) their spouse is frequently (habitually) drunk, and (2) this frequent drunkenness negatively affects the marriage and family life.

We often talk about child abuse and neglect together, so many people may think that abuse and neglect are different words for the same thing. But abuse and neglect are two different things. Abuse is certain behavior that harms the child, and neglect is failure to provide the child with things that they need.

Child Neglect

 
Neglect happens when a parent is not providing something to their child that they should be providing. Parents are expected and obligated to provide their children with clothing, shelter, food, water, education, and healthcare.  If a parent is not providing these things, that is child neglect. Neglect is the absence of something that the child should be experiencing, while child abuse is the presence of something that the child should not be experiencing.

There are two types of divorce in Mississippi: Irreconcilable Differences divorce (sometimes called “ID divorce”) and Contested or Fault-Based divorce. Fault based divorce may be used in situations where one spouse wants to get a divorce, and the other does not. Fault based divorce requires that there be a “fault ground” that the divorce claim is based on. Every state has laws that outline what the fault grounds for divorce are in that state. Mississippi has 12 fault grounds for fault-based divorce, and one of these grounds is called habitual cruel and inhuman treatment. This fault ground typically comes up in situations involving domestic abuse but can also be used as a catch-all for many other types of cruel treatment by one spouse to the other. When a person cannot get their spouse to agree to a divorce, and none of the other eleven fault grounds apply to the situation, the spouse seeking a divorce has only one option left: divorce on the ground of habitual cruel and inhuman treatment.

Proving Habitual Cruel and Inhuman Treatment

To prove habitual cruel and inhuman treatment in Mississippi, the spouse alleging fault (Spouse A) must show that the spouse at fault (Spouse B) repeatedly acted in a way that endangered life, limb, or health or created a reasonable apprehension of danger, such that the relationship was unsafe for Spouse A, or that Spouse B’s actions were so unnatural as to make the marriage revolting to Spouse A.  The actions must be done for so long or so frequently that their recurrence could be reasonably expected. Usually, it needs to be systematic and continuous, but even one violent incident can be a basis for divorce if it is shown by a preponderance of the evidence.

During a divorce, courts are often deciding who will have custody of the couple’s children. When a judge decides child custody, they are simply looking to one thing: what would be in the best interest of the child? But determining what is in the child’s best interest can sometimes be tricky, which is why Mississippi courts use a set of factors to help make this decision.

The Albright Factors

Courts look to the best interest of the child to determine custody. Each state uses a list of factors to figure out what would be in the best interest of the child or children. Mississippi uses the following 13 factors (they are called the Albright factors because they come from a Mississippi case called Albright v. Albright):