Please see our article appearing in this month’s edition of The Mississippi Lawyer magazine. It’s reproduced below for your convenience.
Many times we have clients call regarding a divorce and have common misconceptions because “that’s what they have heard.” Just because your friend’s neighbor went through a divorce does not mean that what they experienced applies to your case. Also, as all cases are uniquely different, your case is not guaranteed to be like theirs.
I’m filing for a no fault divorce. Mississippi is not a true “no fault” state. At this time, one party cannot file for a no fault divorce in Mississippi. Both parties may file for a divorce on Irreconcilable Differences, keyword “both” parties. This filing is usually a Joint Complaint for Divorce, which also requires that both parties have entered into an Agreement for the custody, support and maintenance of the minor child(ren) and the settlement of all property rights.
An affair means you can’t have custody. False. When determining custody, the Court relies on the Albright factors. Albright vs. Albright, 437 So. 2d 1003 (Miss 1983). One of the factor is the moral fitness of the parents, this is where the Court could consider any fault or misconduct on the parties. The court has stated “marital fault should not be used as a sanction in custody awards.” Carr, 480 So.2d at 1123. Where both parties engage in extramarital affairs, neither should get the benefit of a finding of moral fitness. Fulk v. Fulk, 827 So.2d 736, 740(¶ 15) (Miss.Ct.App.2002).
A court should determine custody and the best interests of the child by looking at the following factors:
- Age of the child.
- Health of the child.
- Sex of the child.
- Continuity of care prior to the separation.
- Which parent has the better parenting skills and the willingness and capacity to provide primary child care.
- The employment of the parent and the responsibilities of that employment.
- Physical and mental health and age of the parents.
- Emotional ties of parent and child.
- Moral fitness of the parents.
- The home, community and school record of the child.
- The preference of the child at the age sufficient to express a preference by law. (Must be at least 12, and it’s ONLY a preference)
- Stability of home environment and employment of each parent.
- Other factors relevant to the parent-child relationship.
The woman always gets custody. False. Miss. Code Ann. §93-5-24(7) states: “There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.” Some lawyers may be screaming at this article, “what about the tender-years doctrine??” In Rosser v. Morris, the Court of Appeals affirmed the trial court’s decision of the mother being granted custody and during an analysis of Albright stated, “Although the tender-years doctrine was ” significantly weakened” by section 93-5-24(7), ” there is still a presumption that a mother is generally better suited to raise a young child.” Passmore v. Passmore, 820 So.2d 747, 750 (¶ 9) (Miss. Ct. App. 2002), 135 So.3d 945 (2014). The lower court found that since the father had played an active role in changing diapers, bath times, and games that the factor of the age, health and sex of the child favored neither parent.
Once a child is twelve, he/she can decide where they want to live. This is simply not true. When making a custody determination the Court considers ALL of the Albright factors. The applicable statute, Mississippi Code Annotated section 93-11-65(1)(a) (Supp.2006), states ” the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.” (Emphasis added.) Phillips v. Phillips, 45 So.3d 684 (2010). One of the factors includes the preference of the child over the age of 12, but this one factor alone does not carry the day. The child’s preference is not outcome determinant. Holmes v. Holmes, 958 So.2d 844, 848 (¶ 15) (Miss.Ct.App.2007) That being said, as a child reaches certain, more mature ages, the Court may be more inclined to adopt the child’s preference.
“Take you to the cleaners” Mississippi is an equitable distribution state. Equitable distribution does not mean 50/50, but it also does not mean 100/0. The court has laid out several factors known as the “Ferguson Factors” when it comes to equitable distribution. Ferguson vs. Ferguson, 639 So.2d 921, 928-9 (Miss. 1994). The enumerated factors are as follows:
- Substantial contribution to the accumulation of the property (Mopping it Up in a Divorce, click for explanation).Factors to be considered in determining contribution are as follows:
- Direct or indirect economic contribution to the acquisition of the property;
- Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
- Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
- The degree to which each spouse has expended, withdrawn or otherwise disposed of marital asset(Marital Waste; Don’t Spend Money on Your Girlfriend).and any prior distribution of such assets by agreement, decree or otherwise.
- The market value and the emotional value of the assets(Sentimental Value can be Valuable) subject to distribution.
- The value of assets not ordinarily,absent equitable factors to the contrary, subject to such distribution (Sentimental Value can be Valuable), such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
- Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
- The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
- The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
- Any other factor which in equity should be considered.“
Mississippi is not an alimony state. Mississippi is an alimony state. The court has laid out several factors known as the “Armstrong Factors” when determining whether or not alimony is appropriate. Armstrong vs. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993).
It is important to note the Court has directed that alimony is to be used after an equitable distribution of the marital estate. If the court finds that the needs of both parties are met and there is no disparity with the distribution of the marital estate, the court does not consider alimony.
1) The first factor is the income and expenses of the parties. When there is a great disparity in the earning capacity and incomes of the parties it could support an award of Alimony.
2) The second factor is the health and earning capacities of the parties. This considers physical and mental health, as well as earning capacity, to include degrees, etc…
3) Third, the court is to consider the needs of each party. The living expenses.
4) Fourth, the court is to consider the obligations and assets of the parties. Is the marital estate encumbered by a significant debt? Is a party living off his credit card?
5) The fifth factor to consider is the length of the marriage. Less than 10 years is not long. 20 years and over is long. Between 10-20 is the gray area. Of course, it’s all gray and it’s possible to get alimony in very short marriages and not get it in very long marriages.
6) The sixth factor is the presence or absence of minor children in the home.
7) The seventh factor is the age of the parties. Think years left for gainful employment and to live…
8) The eighth factor is the parties’ standard of living, both during the marriage and at the time of the support determination. Have the Parties enjoyed a relatively high standard of living in comparison to most? Allowing them to take trips, to purchase recreational vehicles, to purchase a half a million dollar home in the suburbs, to send their children to private school, and have not had to be concerned about money or curb their spending during times when husband was not working?
9) The ninth factor to consider is the tax consequences of the spousal support. Alimony payments, normally,would be taxable income to the receiver and deductible to the payor, allowing her to receive a tax benefit in the reduction of her taxable income for the duration of the support payments. It’s also possible to make it non-taxable, depending upon the duration of the payments and whether same is owed in the event the payor dies.
10) The tenth factor is fault or misconduct. Fault grounds; adultery, cruelty, etc…
11) The eleventh factor is wasteful dissipation of assets by either party. Booze, drugs, or gambling spending.
12) The final factor for the court’s consideration is any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support. So any other compelling reason in favor of alimony.
After weighing each of the factors set forth in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993), and viewing the totality of the circumstances, the court will find whether an award of alimony is warranted.
The man has to provide health insurance. False. At first I thought this was a joke, but I have heard it enough times to include it in this list. There is no authority that a male is required by law to provide health insurance. This usually comes up in child support issues. Miss. Code Ann. §43-19-101 (6) states:
(6) All orders involving support of minor children, as a matter of law, shall include reasonable medical support. Notice to the obligated parent’s employer that medical support has been ordered shall be on a form as prescribed by the Department of Human Services. In any case in which the support of any child is involved, the court shall make the following findings either on the record or in the judgment:
(a) The availability to all parties of health insurance coverage for the child(ren);
(b) The cost of health insurance coverage to all parties.
The court shall then make appropriate provisions in the judgment for the provision of health insurance coverage for the child(ren) in the manner that is in the best interests of the child(ren). If the court requires the custodial parent to obtain the coverage then its cost shall be taken into account in establishing the child support award. If the court determines that health insurance coverage is not available to any party or that it is not available to either party at a cost that is reasonable as compared to the income of the parties, then the court shall make specific findings as to such either on the record or in the judgment. In that event, the court shall make appropriate provisions in the judgment for the payment of medical expenses of the child(ren) in the absence of health insurance coverage.
If we have joint custody, that means I do not have to pay child support. False. Child Support can still be awarded within the Chancellor’s discretion under the statute. Chancellors can evaluate the expenses of the child, the difference in wage and earning capacity of the parties’ to determine whether child support would be appropriate.
Common misconceptions abound and include more than just the topics included here. Friends and the internet can be a valuable resource, but they can also be dangerous to rely upon. Instead, rely upon your attorney. Ask the question even if you think you know the answer. Do not let these Family Law faux pas trip you up.
By Matthew Thompson & Chad King
Matthew Thompson & Chad King are attorneys with Thompson Law Firm. If you have questions regarding a Family Law matter, or any other legal issue, you may call to have your questions answered or for an appropriate referral at (601)850-8000.