Thursday, January 7, 2010

Visitation in Mississippi

Visitation is the time a child spends with a noncustodial parent. In Mississippi, a noncustodial parent has a right to continued significant contact with his or her child under circumstances that foster a close relationship. The court’s primary concern when determining how much visitation is proper balancing the best interests of the child coupled with the rights of the noncustodial parent.

Absent danger or other potential detriment to the child, the court will award “standard” or “liberal” visitation to a noncustodial parent. In Mississippi, standard visitation has been defined by the Mississippi Supreme Court as two (2) weekends a month until Sunday afternoon, at least five weeks of summer visitation, and some holiday visitation. More or less may be awarded depending on the specific facts of the case.

Unless parents can work well together, an Order or Agreement providing for visitation should be detailed, clearly specifying the dates of visitation, the exact times of transfer and other arrangements including which party is to bear the cost of transportation for visitation. When parties are unable to work together, ambiguous visitation provisions routinely result in continuing post-divorce litigation.

Child Custody in Mississippi

Child custody is the most litigious aspect of family law proceedings in Mississippi. Chancellors in Mississippi have authority to award custody of minor children in a variety of actions including initial divorce cases and in custody actions between unmarried parents and third parties. In addition, a chancellor awarding custody in one of these cases will have continuing jurisdiction to modify or enforce its order (through contempt proceedings).

A. Types of Child Custody

In Mississippi, there are two types of child custody: (1) physical custody, and (2) legal custody. Physical custody is the period of time in which a child resides with, or is under the care of, one of the parents. On the other hand, legal custody is the “intellectual” aspect of custody and refers to the right to make decisions relating to the health, education and welfare of your child.

B. Ways Custody May be Split.

There are a variety of ways that child custody may be awarded in Mississippi. Both physical and legal custody may be awarded solely to one parent or parents may be made joint physical and legal custodians. Joint legal custody means that parents share decision-making rights with regard to the child. When joint physical custody is awarded, a child will spend a significant amount of time with both parents. 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. 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.

C. Who Wins Custody

In Mississippi, it is now presumed that parents 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 request by both parents. It is important to remember that the 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.

So how exactly does a court determine what is in the best interests of your child when it comes to custody? This is a question that is fair to ask but often difficult answer. In Albright v. Albright, the Mississippi Supreme Court adopted twelve factors to use in weighing what is in the best interests of a child when determining which parent should have custody. These factors are as follows:

[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 of parents;
[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 each parent; and,
[12] Other relevant factors that should be considered in best interests of child.

In any case where custody of your child is at stake, representation by an experienced family law attorney is critical to protect the best interests of your child and ensure that your fundamental right to make decisions that will guide your child’s life is protected. A critical point to remember is that once custody of a child is lost, it is often very hard to recover.

Monday, December 21, 2009

How is Marital Property Divided Upon Divorce in Mississippi?

1. Property Division in Mississippi

Along with custody disputes, the division of marital property during divorce is often problematic and a source of contention for many couples seeking to dissolve their marriage. Should the parties to a divorce be unable to agree on how to divide their property, it will be necessary to retain an experienced divorce attorney to carefully scrutinize the facts of your case and make an argument relating to the classification and distribution of the marital estate. The following is some basic information relating to property distribution in Mississippi.

When it comes to dividing property during a divorce, Mississippi is what attorneys call an “equitable distribution” state. Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994). Under this manner of distribution, marital property is distributed between the parties upon divorce based on the equities of their particular situation. In Mississippi, equitable distribution does not mean "equal" distribution. Instead, courts of this state utilize several steps when making an equitable distribution of marital property. These steps include: (1) classifying assets as marital or separate; (2) valuing assets (sometimes using experts); (3) divide marital property equally based on the factors outlined in Ferguson; and, (4) award alimony if needed after the division of assets.

First, property of the marriage must be “classified” as marital or separate. Marital property is defined as “assets acquired or accumulated during the course of the marriage”. On the other hand, separate assets are those “attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Gifts and inheritances received during the marriage are normally separate property in Mississippi. However, separate property may be converted to marital property based on actions of the owning spouse such as commingling, family use, or joint titling.

Separate property of a party will not be subject to division. However, once property is classified as marital property, the court will value the property and attempt to reach a fair division of the marital assets using the factors outlined in the Ferguson decision. These factors include:
(1) substantial contribution to property accumulation, including indirect economic contribution, contribution to family stability and contribution to theeducation and training of the wage earning spouse;
(2) spousal use or disposition of assets;
(3) the market and emotional value of assets;
(4) the value of each spouses separate estate;
(5) tax consequences and legal consequences to third parties;
(6) the extent to which property division and eliminate the need for alimony;
(7) the needs of each spouse; and,
(8) other factors which should be considered in equity.
In addition to these factors, marital "fault" remains a minor factor for consideration in property division.
Each couple's situation presents unique facts for analysis under the Ferguson factors. There are numbers of cases where both equal and unequal distribution of property have been upheld. Therefore, it is critical in divorce cases where property distribution is an issue to have an experienced divorce or family law attorney to zealously represent you with issues relating to property distribution.

Methods of Divorce in Mississippi

In Mississippi there are two ways to get a divorce: (1) Irreconcilable Differences (a/k/a “No Fault”) divorce; and, (2) Contested or Fault-based Divorce.

1. Irreconcilable Differences Divorce

What we call the Irreconcilable Divorce ("ID") in Mississippi may be proper where both spouses agree that their marriage is irretrievably broken and they want a divorce as quickly as possible for the least amount of expense. An ID divorce is proper only if both spouses agree to be divorced on this basis. As long as both parties consent to this type of divorce, any remaining issues relating to property distribution and/or child custody terms may be submitted to the court upon consent of the parties. However, inability to reach an agreement relating to child custody, child support or property distribution is a common reason this type of divorce may be unavailable to some divorcing couples in Mississippi.

Another thing to remember is that, under Mississippi's ID statute, parties seeking an ID divorce must wait Sixty (60) days from the time the Complaint is filed or served before the divorce can be finalized.

2. Contested Divorce

The other method for obtaining a divorce in Mississippi is the fault-based grounds divorce. A Mississippi contested or fault-based divorce alleges adultery or other marital misconduct and is proper where no agreement relating to the divorce, custody or economic issues can be reached. The twelve (12) grounds for seeking a fault-based divorce in Mississippi include:

(1) Natural Impotency;
(2) Adultery;
(3) Incarceration;
(4) Desertion;
(5) Habitual drug use;
(6) Habitual drunkenness;
(7) Habitual, cruel and inhuman treatment;
(8) Insanity at time of marriage;
(9) Bigamy;
(10) Pregnancy of wife at the time of marriage;
(11) Kinship within the prohibited degree;
(12) Incurable Insanity.

These grounds may be alleged individually or in combination depending on the facts of the case. A party seeking divorce on one or more of these grounds will have to prove their case in court before a chancellor. The standard of proof will vary based on the ground alleged and witnesses and/or other corroborating evidence will be necessary to prove your case. During this type of divorce proceeding, the chancellor will also hear evidence relating to child custody and/or support issues and property distribution. After presentation of your case, the court will render a judgment deciding these issues.