Search This Blog

Monday, March 7, 2011

Sexual Misconduct and Child Custody in Mississippi

Does sexual misconduct affect custody determinations in Mississippi?


Yes and no. Sexual misconduct no longer dictates which parent receives custody. However, it does play a significant role in that determination. Moral fitness of each of the parents is one of 12 factors the Court considers when evaluating custody. Just because one of the parties has committed adultery does not automatically grant the non-offending parent the children. The Court analyzes the suitability of each parent by looking at the situation from the viewpoint of the child. Does the misconduct of the parent negatively affect the child? If so, to what extent? How does this misconduct compare in relation to that parent’s other attributes as a parent? What about the non-offending spouse - is he or she more suitable taking into account all factors? This analysis is generally the same whether the offense is adultery, cohabitation, or homosexuality.

Adultery - Mississippi courts strongly disfavor the children’s exposure to a parent’s extramarital affair. Overnight visits while the children are home can be the deciding factor in a custody battle when all other factors are equal or even slanted slightly in favor of the offending spouse. Allowing the children to be in the presence of the romantic partner will also bring into question the romantic partner's characteristics. If he or she has a criminal history or is otherwise unstable it will be very difficult for the offending spouse to obtain custody. On the other hand, an affair that is kept from the children and does not affect the parenting skills or devotion to the children is not usually pivotal in a custody determination.

Cohabitation - When one parent resides with someone to whom he or she is not married it can weigh against them in two of the 12 custody factors. First, Mississippi courts consider cohabitation to be a negative example of that parent’s moral character. Additionally, it calls into question the stability of the home environment. A parent who is cohabiting will definitely be at a huge disadvantage in any custody dispute.

Same Sex Relationships - Mississippi courts make no differentiation between heterosexual and homosexual relationships. A homosexual relationship does not guarantee the opposing parent custody of the children. The Court will attempt to determine if the relationship has an adverse effect on the children. However, as with adultery and cohabitation, it is considered immoral and indicative of that parent’s values. It will likely weigh heavily against that parent in the custody evaluation.

Regardless of the sexual misconduct, it is not the sole determining factor in a child custody dispute and will be put into context with the overall parenting abilities of each parent.

Please visit our website at http://www.showspowell.com/.

Wednesday, June 30, 2010

Irreconcilable Differences Divorce in Mississippi - More than One Way

There are more than one avenue to getting a divorce on the grounds of Irreconcilable Differences in Mississippi. However, each avenue ultimately involves the parties reaching some form of agreement. The avenues to a Irreconcilable Differences divorce are:

1. Complete agreement from the outset. This involves both parties signing a Joint Complaint for Divorce, a Marital Dissolution Agreement (aka Property Settlement Agreement), and a Judgment of Divorce. The Joint Complaint is filed and must remain on file for sixty (60) days prior to a divorce being finalized.

2. Agreement to obtain divorce from the outset (sort of). This involves both parties agreeing to a divorce on Irreconcilable Differences. However, they can’t agree to all terms of property division, or support, or custody, so they enter into an agreement stipulating all matters that they do agree upon, and stipulating that the Court shall hear and decide all matters which the parties cannot agree upon. Thereafter, the Court will hold a hearing where both parties put on evidence regarding those things they have submitted to the Court for a decision.

3. Adversarial proceeding at the outset. This can ultimately end up as an Irreconcilable Differences divorce in the following ways:

a. Both parties file complaints for divorce on fault grounds against the other, with irreconcilable differences plead in the alternative. At some point after the commencement, both parties reach an agreement in writing (called a Marital Dissolution Agreement or Property Settlement Agreement), sign a Consent to Divorce on Irreconcilable Differences, sign a Joint Motion to Withdraw Fault Grounds and Denials, and sign a Judgment of Divorce. The initial complaint starting the proceeding must still be on file for sixty (60) days before the divorce can be finalized.

b. One party files a complaint for divorce on fault grounds, with irreconcilable differences plead in the alternative, and the other party comes in and agrees to a divorce on Irreconcilable Differences. The parties can then agree to all terms of property division, support and custody issues (as in #1 above), or the parties can agree to some of the terms of the property settlement and a consent to allow the Court to decide all matters not agreed upon (as in #2 above).

For more information, visit our website at http://www.showspowell.com/.

Friday, June 25, 2010

Five Common Misconceptions of the Mississippi Irreconcilable Differences Divorce

1. One person can get a divorce on the grounds of irreconcilable differences over the objection of the other. Not true. A divorce on the grounds of irreconcilable differences requires consent by both parties.

2. When you get a divorce on the grounds of irreconcilable differences, you are divorcing your spouse. Partially true. When a court grants a divorce on the grounds of irreconcilable differences, both parties are divorcing the other. Most divorce decrees are written that way. Therefore, one spouse is not divorcing the other; instead, both spouses are divorcing each other. Perhaps for some this is not an important distinction, but for others it is important.

3. You have to agree on everything to get a divorce on irreconcilable differences. Not true. You can submit to the court those issues which you and your spouse cannot agree upon and allow the court to decide these issues. For example, you both know that you want out of the marriage, and can agree on a divorce on the grounds of irreconcilable differences. However, you can’t agree on: custody of the children; the amount of child support; alimony; who gets the house and who pays the mortgage; who pays the credit card debt, or how the credit card debt should be divided; how the furniture, furnishings and other personal property is divided; etc. However, to submit these unresolved issues to the court, you must enter into a stipulation that is in writing agreeing that these issues are to be decided by the court.

4. Irreconcilable differences is a ground for divorce. True - with a twist. It is a ground for divorce as set forth in the statute at M.C.A. Section 93-5-2. However, irreconcilable differences is not a fault grounds that one person can prove against the other. See #1 and #2 above.

5. If both parties agree to the terms of the divorce, the court will automatically approve the divorce. Not true. This is especially not true pertaining to unusual child custody arrangements or agreements where a non-custodial parent is not going to pay any child support. The court is not in the habit of rubber-stamping agreements that do not make adequate and sufficient provision for the care, custody and support of the minor children.

For more information, please visit our website at http://www.showspowell.com/.

Wednesday, June 16, 2010

The Don’ts of Paying Child Support in Mississippi

(1) Don't be late in paying. The custodial parent has the right to expect your compliance with the court order, and has the right to rely on the expectation that the child support will be paid on or by a certain date so they can properly budget and spend the money for the benefit of the child.

(2) Don't pay the wrong amount. See number 1 above.

(3) Don't pay it in cash. This makes it too easy for the custodial parent to lie saying they never received the child support, or alternatively too hard for you to prove that you actually paid the child support. Cancelled checks and money order receipts are much better evidence of your payment of the child support than your word.

(4) Don't regret having to pay it. You should want to support your child to make certain they are properly cared and provided for. What kind of parent are you if you don’t want the best for your child?

(5) Don't pay it when you want to. See number 1 above.

(6) Don't wait until all of your other bills are paid to see if you have enough to pay it. You should pay it first before your other bills are paid. That way you won’t be put in the unpleasant position of having to explain to the Judge why you didn’t pay it. You can go to jail for not paying your child support.

(7) Don't try to dictate to the custodial parent how they spend the child support. Its none of your business so long as the child is being properly provided for. You gave up the right to have a say in how the custodial parent spends the money when you divorced or didn’t get married after having reproduced with them.

(8) Don't ignore the child support obligation if you lose your job. Get a lawyer immediately and file a petition for modification based on the change in circumstances and your inability to pay. Ignoring your child support obligation only makes it worse.

To learn more visit our website at http://www.showspowell.com/.

Monday, June 14, 2010

The "Do's" of Paying Child Support in Mississippi

Do:

(1) Pay it on time. The custodial parent (and child) need to know that they can depend on the child support being received at the same time each month so they can properly budget and timely pay bills and expenses.

(2) Pay the correct amount. Just as above, the custodial parent (and child) rely on the same amount of money each month to budget and timely pay bills and expenses.

(3) Pay it by check or money order. You want some proof via canceled check or money order receipt that you paid it.

(4) Pay it willingly and happily. This is for your child, which you had a part in creating. What a wonderful example to the child of your love if you demonstrate that you are happy to support them.

(5) Pay it because you love your child(ren).

(6) Pay it according to the latest court order. The latest court order dealing with child support controls.

(7) Pay it consistently. See numbers 1 and 2 above.

(8) Make it a priority. Pay it first. Its not paid only if you have money left over to pay it. Its paid even if you don’t have the money to pay your other bills.

(9) Understand that you ordinarily have no say in how the custodial parent spends the child support. Just because you pay child support does not give you the right to be a dictator as to how and when the money is spent on your child. However, if you find out the child support is being used to support an addiction such as drugs, alcohol, or gambling, continue to pay your child support but immediately seek legal advice for your options.

(10) Communicate with the custodial parent if a problem arises with regards to paying the child support on time. If you suddenly have a problem such as losing your job, reduced hours, etc., and you have been consistent with paying your child support, the custodial parent will be more understanding and willing to work with you until the problem is resolved. If you are not consistent, you are less likely to receive understanding and compassion from the custodial parent.

To learn more visit our website at http://www.showspowell.com/.

Thursday, June 3, 2010

Favorite Movie Line Regarding Cheating Spouses

From the movie "The Family Man" starring Nicolas Cage and Tea Leoni:  "Fidelity Bank of Trust is a tough creditor.  You make a withdrawal there and they close your account forever."

Lots of truth there.

Monday, May 31, 2010

What Child Support is NOT

In a previous post, we discussed what child support IS. In this post we will list what child support IS NOT.

Child support is not:
(1) a condition that must be met in order for the non-custodial parent to see and visit with his/her children;
(2) under normal circumstances sufficient to cover the costs of all of the child’s needs;
(3) normally tax deductible;
(4) meant to cover medical expenses of the child which are not covered by health insurance;
(5) a right won by the non-custodial parent to control how the custodial parent spends the money;
(6) leverage by either parent for every conflict or disagreement between the parents;
(7) terminable at the pleasure or whim of the non-custodial parent;
(8) to be paid to the child;
(9) normally terminable absent a court order;
(10) assignable to a third party absent a court order;
(11) subject to garnishment by a creditor of the custodial parent;
(12) modifiable without a court order; and
(13) many other things that warring parents often try to make it be.

Following these two rules will keep you out of trouble 99% of the time:
(1) If you owe child support, pay it according to the order on time when its due.
(2) If you receive child support, utilize it for the support of the child.

To learn more visit our website at http://www.showspowell.com/.

Remembering Our Service Men and Women on Memorial Day

Thank you for all of you who have served our country in the armed forces in the past, or who are serving the armed forces presently.  We all owe a deep debt of gratitude for the sacrifices that both you and your families have made. 

Wednesday, May 26, 2010

What is "Child Support"?

Child support is an amount of money paid by the non-custodial parent to the custodial parent or guardian for the expenses associated with the care and support of the minor child. The terms “care and support” encompasses shelter, food, clothing, medical care, school expenses, extracurricular activity expenses, etc., etc. Basically, the parent that is paying the child support is paying a court-ordered amount of money for their share of these basic living expenses of the child.

Child support is a court-ordered obligation. Child support is relied upon by the custodial parent in most instances just to “make ends meet”. Child support is paid to the custodial parent or guardian, unless otherwise redirected through the Department of Human Services.

If you are ordered to pay child support, pay it as ordered. The failure to pay child support as ordered is contempt, and the non-custodial parent who fails to pay as ordered can be incarcerated.

To learn more visit our website at http://www.showspowell.com/.

Monday, May 24, 2010

The “I’m Just Not That Happy Anymore” Divorce - Part 2

In my previous blog, I stated that Mississippi does not recognize “I’m just not that happy anymore” as a ground for divorce to enable the unhappy spouse to divorce the other spouse without the other spouse’s consent. Unfortunately, that is not the case in other states.

Many states recognize Irretrievable Breakdown of Marriage as a ground for divorce. Some states utilize this as a form of no-fault divorce - with the fault. In these states, so long as the unhappy spouse can convince the judge that the marriage is over with no hope of a reconciliation, and prove certain statutory factors, the unhappy spouse can get a divorce. This is irreconcilable differences on steroids.

Thank goodness this isn’t the law in Mississippi.

I’ve had the experience representing clients dealing with such a law in one of the states that recognizes Irretrievable Breakdown of Marriage as a divorce. Basically, the common scenario is as follows:  The unhappy spouse decides that the wedding vows they took were not solemn enough to keep the vow, and therefore moves to a state recognizing such law, establishes residency for six months, and files for divorce on the grounds of Irretrievable Breakdown of Marriage. The other spouse, however, holds the belief that the wedding vows taken are solemn vows worthy of keeping. The end of the story is that the unhappy spouse gets what they wanted - a divorce on Irretrievable Breakdown of Marriage.  The spouse wanting the marriage to work does not get what they want - they lose their marriage.

Of course, for this scenario to play out the spouse wanting out has to be willing to uproot their life and move to another state to establish the six month residency requirement.

And people say its too easy to get a divorce in Mississippi . . . try these other states for such easy divorce laws.

To learn more visit our website at http://www.showspowell.com/.

Followers