DIVORCE:
Mississippi recognizes the following grounds for Divorce:
1. Impotence;
2. Adultery;
3. Bigamy, or marriage to someone else at the time of marriage;
4. Criminal conviction and sentence to jail time for longer than one year;
5. Willful and continuous desertion for at least one year;
6. Habitual alcohol or drug abuse;
7. Habitual cruel and inhuman treatment;
8. Wife’s pregnancy by another at the time of marriage without the husband’s
knowledge; and,
9. Hospitalization or institutionalization of a spouse for three years due to insanity.
In the alternative, there is the option of both parties jointly filing for a divorce on the grounds of Irreconcilable Differences.
There is no recognized state of legal separation in the State of Mississippi and the waiting period before finalizing a divorce is a minimum of 60 days.
CHILD CUSTODY
A separate aspect of family law is the issue of child custody. When determining which parent or party will have primary custody of a minor child, the Court must always consider what is in the best interests of the child. In Mississippi, the custody determination is made based on the Albright Factors. The factors are:
- Age, health and gender of the child;
- Parent having continuity of care prior to the separation;
- Parent with best parenting skills and willingness and capacity to provide primary
child care;
- Employment of the parent and responsibilities of that employment;
- Physical and mental health and age of the parent;
- Emotional ties of parent to child;
- Moral fitness of the parent;
- Home, school and community record of the child;
- Preference of the child at age sufficient to express a preference;
- Stability of parent’s home environment and employment of each parent;
- Relative financial situation of the parents;
- Difference in religion of the parents;
- Differences in personal values of the parents;
- Differences in lifestyle of the parents; and,
- Other factors relevant to the parent-child relationship.
The Albright factors are not to be applied in the manner of a scoresheet or mathematical formula. Lee v. Lee, 798 So.2d 1284, 1288 (Miss. 2001). The Chancellor may give special weight to one, two or several factors to determine the outcome. Divers v. Divers, 856 So.2d 370, 376 (Miss. App. 2003). The Chancellor has the ultimate discretion to judge the weight and credibility of evidence. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss. 1994); Johnson v. Gray, 859 So.2d 1006, 1013-1014 (Miss. 2003).
CUSTODY MODIFICATION
In many cases, a parent wishes to take primary custody from the other parent. In a modification of custody case, the proponent must prove 3 things, in combination, in order to prevail:
That there has been a change in circumstances of the custodial parent material to the issue of custody since entry of the last judgment; andThat the change in circumstances has an adverse effect on the minor child; and, if 1 and 2 are proven;That it is in the best interest of the minor child to change custody. Determination of the child’s best interest is based on application of the Albright factors to the facts of the case.The standard for modification is like a three-legged stool; if one leg is missing, the stool can not stand and custody will not be modified.
CHILD SUPPORT
Mississippi Child Support is regulated for the most part by the statutory guidelines for support enacted by the legislature establishing percentages of income which shall be paid for the benefit of the minor child to the parent with primary physical custody. Once ordered, the amount ordered to be paid by the Court cannot be modified without petitioning the Court for a modification of child support.
ALL THAT IS NEEDED TO MODIFY CHILD SUPPORT IS AN UPWARD OR DOWNWARD SHIFT IN THE PAYOR'S INCOME and the Court has the authority to modify support which can take effect retroactively to the filing of the motion to modify support.
Call Attorney David Lee Brewer for all your family law needs – 601-348-9212.