Question #1
CAN I GET A DIVORCE
The first way to obtain a divorce in Mississippi is on the grounds of Irreconcilable Differences (also known as a No-Fault Divorce). In this type of divorce you and your spouse must agree on getting the Divorce and on how to divide the assets and debts of the marriage. The parties must also agree on the issues relating to the custody of the children including visitation and support. The parties can also jointly ask the Court to decide any issues they cannot agree on. The second way to obtain a Divorce is when your spouse has committed an act that gives you grounds for divorce. The grounds are as follows:
Habitual Cruel and Inhumane Treatment.
This is stated as a ground for divorce in most cases. Habitual cruel and inhumane treatment is conduct endangering life, limb or health, or creating reasonable apprehension of danger, or unnatural conduct making the marriage revolting. Physical beatings can constitute cruelty. However, personal violence is not necessary, but without personal violence, the conduct must be such as to impair or endanger health or create reasonable apprehension of bodily harm. Cruelty without personal violence can take many forms. Badgering, threatening, continual accusations of adultery, demeaning conduct, continual unwarranted criticism and nagging can constitute cruelty. Many times, this type of cruelty is more supportable if the conduct causes the person to seek medical assistance for "nerves" or ulcers, or psychological counseling. There is no real way to pin cruelty down. It depends of the facts of each particular case, and thus we need to discuss your set of facts.
Adultery
Adultery is unforgiven ("uncondoned") sexual intercourse with a person other that the spouse during marriage. People often ask what proof is required. Obviously, circumstantial proof is all we have most of the time. It has been said that the circumstances must show the "inclination and the opportunity". If a private investigator is involved, you will often see testimony that the two individuals pulled up to a motel room or apartment in their cars, entered the room, turned the lights out, and then emerged from the room some time later. That's circumstantial, but most people would accept the probable conclusion of adultery. Love letters and testimony of inappropriate advances toward each other is also often a part of this kind of proof. Adultery must not be forgiven. If a person knows of adultery and "resumes the marital relationship" the adultery may be considered to have been "forgiven", unless it happens again.
Habitual Drunkenness
There is no way to say what constitutes drunkenness and what doesn't. We look at the amount and frequency of consumption, and the conduct while drinking. Does the person become violent, or does he withdraw and become reclusive? Have there been DUI's or accidents? Does he miss work or lose friends? Has there been treatment for alcoholism which has failed? Each situation is different.
Desertion
This is a very misunderstood ground, because most people don't realize that the desertion must last for a whole year. It must be willful and obstinate and continuous. And the one who seeks a divorce must be ready and willing to take "the deserter" back at all times without qualification. Even these elements, it is rare.
Penitentiary
A divorce can be obtained from a person who has been sentenced to the penitentiary and not pardoned before being sent there.
Drugs
In some Situations a divorce can be obtained for the excessive use of opium, morphine or other like drug.
Other grounds for divorce are:
a. Natural impotency.
b. Insanity or idiocy at the time of marriage if the complaining party did not know about it.
c. Marriage to some other person at the time of the pretended marriage between the parties.
d. Pregnancy of the wife by another at the time of marriage if the husband did not know.
e. Marriage to a relative.
f. Incurable insanity.
If you are filing for divorce, you need to have your grounds before you file. If you cannot prove your grounds for divorce, accusing your spouse of these grounds may be grounds for divorce for your spouse. Contact me to discuss possible grounds.
QUESTION #2
CAN I GET SEPERATED FROM MY SPOUSE
The State of Mississippi does not provide for "legal separation". Instead the courts allow for a suit for separate maintenance. In this suit, the filing party is asking the other party maintain his/her obligations to the family until he/she decides to come home. In other words, the filing party is saying that he/she does not want a divorce. Under this type of suit the filing party may sue for custody, child support, spouse support, property rights aid any other issues that can be addressed in a divorce. You are still married for all purposes (you cannot date). If you are not ready for a divorce but you want to talk things over with someone, I recommend counseling. If you do not want a divorce, do not get one.
QUESTION #3
CAN I GET AN ANNULMENT
Annulments are granted by the court only in certain rare cases. The legal effect is to void a marriage from the very beginning - as if the parties had never married. If for religious or other reasons you want an annulment, contact me to discuss your situation.
QUESTION #4
WHEN CAN THE CHILD CHOOSE WHERE TO LIVE
The Court's primary obligation is to focus its inquiry on what is best for the children in determining custody. When children reach the age of twelve and desire to express a preference, the Court may take that request into consideration, but only as one factor among others in considering the best interests of the children. The Court is never required to abide by the wishes of the Child.
QUESTiON #5
HOW MUCH WILL MY CHILD SUPPORT BE
The Court can award child support to be paid to the parent that has the primary responsibility to care for the children. This usually takes the form of a cash award which is to be paid each month. It can also include payment of day care, maintenance of health insurance, purchases of clothing and payment of medical bills.
The legislature has established guidelines for awarding support. These guidelines call for a percentage of the "net monthly take home pay" after mandatory deductions (e.g. Federal and state taxes and social security) (not insurance or retirement) as follows:
one child: 14%
two children: 20%
three children: 22%
four children: 24%
five or more: 26%
The Mississippi Supreme Court has said that the percentages must only serve as guidelines and not rules. The court must always look to the best interests of the children and the circumstances of the parties.
QUESTION #6
CAN I RESTRICT VISITATION
The Supreme Court has said many times that visitation with the non-custodial parent should be overnight and without restriction of any kind, except in extreme cases where the life or health of the children are in danger. Local courts do not look kindly upon attempts to restrict visitation. The Courts feel that the children's relationship with both parents should be encouraged. In some isolated cases where sufficient proof is elicited, the Courts may impose a restriction upon the visiting parent.
QUESTION #7
WHAT EVIDENCE WILL I NEED
Contact me prior to announcing to your spouse that you are filing for a divorce so we can discuss what evidence you will need. Some of the evidence we may need is as follows.
Income tax returns;
Financial statements (these are most often filed when borrowing money and are very important);
Employment contracts or any explanations of benefits from you or your spouse's work;
Canceled checks and charge records;
Retirement plans, including IRA's;
Deeds;
Real estate tax bills or appraisals;
Insurance policies, including life insurance, medical insurance, health insurance, or homeowners' insurance;
Bank accounts and Bank statements;
Safety-deposit boxes (you will want the bank to verify an inventory if possible);
Securities;
Partnership agreement, corporations, or other documents showing any business interests;
Any inheritance or trust interests;
Wills by you or your spouse;
Any written agreements or notes between you and your spouse;
Any evidence you have such as photographs or letters.
QUESTION #8
TIPS FOR THE NEWLY DIVORCED
1. Make sure you have the original deeds, notes, car titles and other documents which should be in your possession , and place them in a safe deposit box.
2. If you move to a new state, your prior decree is enforceable under the full faith and credit provisions of the U.S. Constitution.
3. In Mississippi, partial custody/visitation cannot be denied because support payments are not being made and, conversely, support payments cannot be withheld because of a denial of visitation.
4. Divorce decrees are generally enforceable by contempt proceedings, attachment of property, or garnishment.
5. "Child snatching" is punishable in virtually every state and rarely does the party taking the child ever obtain legal custody.
6. Custody and child support are sometimes capable of being modified following a final decree.
7. Beneficiaries of insurance policies should be checked and changed where needed. If minor children receive life insurance proceeds, the other parent will be trustee for such funds unless special provisions are made.
8. Periodic alimony for the support of an ex-spouse is general tax-deductible, while child support is not.
9. You may have liability for some charges made on joint credit cards, so all credit cards should be closed.
10. Contempt of court for failure to make court ordered support payments or failure to permit court-ordered visitation may involve being jailed. Play by the rules!
11. Contract rights to third parties are not usually affected by a decree of divorce, so if you were obligated to a bank, finance company, etc., before the divorce, you are still obligated even though your ex-spouse has been ordered to pay some.
12. A live-in boyfriend or girlfriend may be grounds for a change in custody or visitation.
13. A live-in boyfriend or girlfriend may be grounds for the termination of permanent alimony payments.
14. In the event of death of the custodial parent, the other parent usually gets custody, will provisions to the contrary notwithstanding.
15. Without a will, property which you want to go to your children could be controlled by your ex-spouse.
16. In Mississippi, grandparents can sometimes get visitation rights with their grandchildren, in addition to the visitation given the non-custodial parent.
17. A wide variety of social services are available to a custodial parent receiving inadequate support payments.
18. The wishes of a child of reasonable age are often considered by the court in determining which parent the child will live with. More emphasis will be placed on the request of a child 12 or older.
19. All alimony and support payments should be by check, or a signed, dated receipt should be obtained. The receiving party should keep a very accurate record of all payments received.
20. Gifts and money provided to children directly do not count as child support under most court orders.
21. Child support payments generally do not cease during visitation periods even though such periods may be lengthy, although payments may be reduced somewhat.
22. Any deviation from the terms of a court decree agreed upon by you and your ex-spouse should be reduced to writing and signed by both parties.
QUESTION #9
TEN EASY WAYS A "LONG DISTANCE" PARENT CAN STAY IN TOUCH
1. Read Stories on Tape - Read a story or a book in your own voice onto a tape. Buy your child a tape player that is age-appropriate (consider ear phones). Teach your child how to operate the player, and send the tapes. Read from age-appropriate literature. It is an easy way for your child to hear your voice everyday. You may want to send the stories or books so your child can read along.
2. Postcards - You do not need to write long letters. Just a simple "I love you and I am thinking about you" is enough. Send a postcard weekly. Select scenic cards from the area in which you live, scenic cards from where you visit or take business trips, humorous cards, or cards of a particular interest to your child.
3. Magazine Subscriptions - Kids love getting mail addressed to them. There are many age-appropriate magazines which are reasonably priced. There are certainly magazines which your child would enjoy. When the magazine arrives, your child thinks of you.
4. Collections - Start a collection which is unique to you and your child. It can be something your child is interested in, such as baseball cards or animal nick-knacks. Send something from places you visit, for special occasions and "just because". It will be a special collection.
5. Fax, E-mail and Computer Contact - Many households now have fax machines or you can set up your child's computer so you can write everyday, every week or at some regular interval. It can just be "hi", to celebrate a special event, or just to report about a normal day. It is a high-tech and easy way to stay in touch.
6. Make Video Tapes - Send your child video tapes of your daily life, your travel and special events. Special events are easy, but remember your child is also interested in your normal routine, the dog or cat, and just to see you and hear your voice. When your child is with you, make sure he or she knows how to run a VCR without help.
7. Photo Album - This is the same idea as the videotape except in still-form. Buy an album and send pictures of you doing routine daily things as well as trips and special events. Take pictures when your child is with you and send them.
8. Watch TV Shows Together - Find a TV show that your child enjoys and "watch it together". You may be miles apart, but you each know you are "sharing" the show. When you talk on the phone, you have something in common to discuss. It may be a great ice-breaker.
9. Provide Addressed Postcards, Stationery and Stamped Envelopes - Let your child stay in touch with you without having to ask for help. Give your child a supply of postcards or stationery with stamped and addressed envelopes. Your child can write you and put it in the mail.
10. Phone Cards or 1-800 Numbers - You can purchase phone cards for your child which have a determined number of long-distance minutes to call you without any help. 1-800 number are not very expensive. This will enable your child to call you whenever he or she wants to tell you something or just hear your voice.
11. Talk to the Teacher - Make arrangements with your child's teacher to send copies of his or her work regularly. Provide envelopes and stamps. Most teachers are happy to oblige. Also arrange a regular time to talk to your child's teacher. You will feel much closer.
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