Articles Posted in MS Family Law

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):

When a marriage is breaking down and it becomes obvious that divorce may be approaching, it can be emotional and overwhelming for everyone involved. However, there are several things that spouses can do to prepare for divorce if they know that they are likely headed in that direction. It is never a bad idea to prepare ahead of time so that the divorce process runs as smoothly as possible. 

 Basic Divorce Requirements 

 The first part of starting the divorce process is determining whether you meet the state residency requirement. To file for divorce in Mississippi, you must be a Mississippi resident for at least six months at the time of filing. Most people satisfy this condition easily, but if you have not lived in Mississippi for at least six months, you may need to wait until that six-month period has passed. Residency may be proved in many ways including but not limited to filing for a homestead exemption, registering to vote, purchasing an in-state drivers’ license, and so on.  

There are two types of divorce in Mississippi: Irreconcilable Differences divorce (sometimes called “ID divorce”) and Contested or Fault-Based divorce. The type of divorce you choose depends on whether or not you and your spouse can agree to a divorce. If you and your spouse cannot agree to a divorce, one spouse must prove the other is guilty of marital fault such as adultery, untreated addiction, or domestic violence. 

 Irreconcilable Differences Divorce 

 Irreconcilable differences (ID) divorce is also sometimes called uncontested divorce. This type of divorce is used where both spouses agree that they want to get a divorce. If one spouse does not want a divorce and will not agree to the divorce, ID divorce cannot be used, and the spouse who does want the divorce will have to file for fault-based divorce. Sometimes, a couple will agree that they both want to get a divorce, but cannot agree on certain terms like child custody or how to divide the marital property. In this type of situation, the couple can still file for irreconcilable differences divorce as long as they agree that the court will determine any remaining terms of disagreement.