Frequently Asked Questions Ocean Springs Divorce Lawyer
Q: If I am getting a divorce in Ocean Springs, Mississippi, how does the Judge determine who gets primary physical custody of the children?
A: First, primary physical custody means the person who is going to have the children most of the time. The other person usually has visitation rights.
Assuming that you are getting a contested divorce in Mississippi (in other words, you and your spouse do not agree) then a number of different things a Judge looks at to determine who gets primary physical custody of the children.
Some of these things are:
*Age of the child
* Health and sex of the child
* Which parent had continuing care of the child prior to the separation
*Which parent has the best parenting skills
*Which parent has the willingness and capacity to provide primary child care
*Employment responsibilities of the parents
*Physical and mental health and age of the parents
*Emotional ties of parent and child
* Moral fitness of parents
* Home, school, and community record of the child
*Preference of the child at an age sufficient by law to express such a preference
*Stability of the home environment and employment of each parent.
As you can see, in an Ocean Springs, Mississippi, divorce, figuring out who gets primary physical custody of the children in a divorce can get very complicated.
Now, do yourself a favor, download and read this case from the Mississippi Supreme Court about child custody in a divorce. Some of it is legal mumbo jumbo but some of it is just plain common sense. Click on the case below to download it.
Ocean Springs Divorce Lawyer Attorney Mississippi Child Custody
Q: If I am getting a divorce in Ocean Springs, Mississippi and I will have primary physical custody of the children, how much is my spouse required to pay for child support?
A: If you are getting a divorce in Ocean Springs, Mississippi, if you get primary physical custody of the kids, your spouse is required by law to pay child support for each child you have.
This amount can vary so this is not an exact answer for everyone in Mississippi.
Instead, it is just a guideline.
Section 43-19-101 of the Mississippi Code provides the guidelines for child support.
If you have 1 child, it recommends that 14% of the adjusted gross income be awarded.
If 2 children, 20% and so on.
Child support can depend upon a number of different things.
You can click on 43-19-101 below to read the statute passed by the Mississippi Legislature on child support.
Ocean Springs Divorce Lawyer Mississippi Child Support
And here’s a case from the Mississippi Supreme Court about child support that you should read:
Ocean Springs Mississippi Divorce Attorney Child Support
If You Get A Divorce In Ocean Springs, Mississippi, does the law require that your spouse pay alimony to if you get a divorce?
A: No.
If you are getting a divorce in Mississippi, you may or may not receive alimony.
Alimony depends upon a number of different things.
Here’s a few things:
(1) the income and expenses of the parties;
(2) the health and earning capacities of the parties;
(3) the needs of each party;
(4) the obligations and assets of each party;
(5) the length of the marriage;
(6) the presence or absence of minor children in the home;
(7) the age of the parties;
(8) the standard of living of the parties;
(9) the tax consequences of the support decree;
(10) fault or misconduct;
(11) wasteful dissipation of assets by either party; and,
(12) any other factor deemed to be fair and equitable.
Here is a case from the Mississippi Supreme Court that you should read on alimony:
Ocean Springs Divorce Attorney Alimony Mississippi
Q. How is property divided in a divorce?
After classification and valuation, chancellors must equitably divide the marital property in accordance with the factors dictated in Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994). The factors are:
(1) Substantial contribution to the accumulation of the property.
Factors to be considered in determining contribution are as follows:
(a) direct or indirect economic contribution to the acquisition of the property;
(b) 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,
(c) contribution to the education, training, or other accomplishment bearing on the earning power of the spouse accumulating the assets;
(2) The degree to which each spouse has expended, withdrawn, or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree, or otherwise;
(3) The market value and the emotional value of the assets subject to distribution;
(4) The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, 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;
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
(6) 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;
(7) The needs of the parties for financial security with due regard to the combination of assets, income, and earning capacity; and,
(8) Any other factor which in equity should be considered.
The case you should read about property division in a divorce in Mississippi is:
Ocean Springs Mississippi Divorce Attorney Property Divided
Q. What is separate maintenance?
Separate maintenance is relief created by the Court. It is a judicial command to the spouse to resume cohabitation. If the spouse fails to resume cohabitation, the Court may require the spouse who left the marital home to pay money, i.e., pay money by keeping the spouse who remained in the marital home in the same lifestyle. In other words, the law says you cannot just abandon your spouse and leave them destitute for no good reason.
Q. What are the requirements for separate maintenance?
- A separation without fault on the part of the wife or husband; and,
- The wife or husband’s willful abandonment of the wife or husband with a refusal to provide support. Jackson v. Jackson, 114 So. 3d 768 (Miss. Ct. App. 2013). You can read a decision from the Mississippi Court of Appeals on this by clicking Ocean Springs Divorce Lawyer Separate Maintenance
Q. What will I have to pay if the Judge awards separate maintenance?
The Judge can put your spouse in the same standard of living just as if you still lived in the marital home.
Q. How can I prove that my spouse should not get separate maintenance?
You can prove it by showing that your spouse contributed to the separation by cursing you, failing to have sexual relations with you, showing that the spouse in the martial home does not want to reconcile with you, etc.
Q. What are the things the Court considers in awarding money to my spouse for separate maintenance?
1) the health of husband and the wife; 2) their combined earning capacity; 3) the reasonable needs of the wife and children; 4) the necessary living expenses of the husband; 5) the fact that the wife has free use of the home and furnishings; and 6) other such facts and circumstances bearing on the subject that might be shown by the evidence. Honts v. Honts, 690 So. 2d 1151, 1153 (Miss. 1997). You can read Honts by clicking on Ocean Springs Divorce Lawyer 6 Factors For The Amount of Separate Maintenance
Q. What is the way divorce lawyers GOUGE their clients?
When a divorce lawyer charges you by the hour, you WILL get gouged. You are going to get a GIGANTIC surprise bill at the end. The bill will have every phone call, letter, text message, email, etc. on it and you will get sticker shock at the bill. Don’t get sticker shock. I use a “flat fee” so I do NOT bill you by the hour. There is no surprise bill at my office. There is no nonsense.
Q. What is the number one complaint divorce clients have about lawyers?
The number one complaint is that you can never talk or meet with your lawyer. Lawyers love to play “phone tag” with their clients. The truth is lawyers don’t like talking to their clients so you end up talking to their secretary. I do not run my office this way. You can set your own phone appointment or office meeting 24 hours a day online. The link to set your own phone appointment is at the bottom of every email I send you. I am the only lawyer that I know of that allows clients to do this. So why do I do it that way? Because I dislike phone and email tag. It drives me just as crazy as it drives you. Also, I actually like talking with my clients. I don’t want you talking with one of my secretaries or paralegals and then they have to talk with me. It’s just easier to talk with you directly myself.
Q. What are all the reasons I can get a divorce in Mississippi?
Divorces from the bonds of matrimony may be decreed to the injured party for any one or more of the following twelve (12) causes:
First. Natural impotency.
Second. Adultery, unless it should appear that it was committed by collusion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after a knowledge by complainant of the adultery.
Third. Being sentenced to any penitentiary, and not pardoned before being sent there.
Fourth. Willful, continued and obstinate desertion for the space of one (1) year.
Fifth. Habitual drunkenness.
Sixth. Habitual and excessive use of opium, morphine or other like drug.
Seventh. Habitual cruel and inhuman treatment, including spousal domestic abuse.
Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to: (A) That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or, (B) That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.
Eighth. Having mental illness or an intellectual disability at the time of marriage, if the party complaining did not know of that infirmity.
Ninth. Marriage to some other person at the time of the pretended marriage between the parties.
Tenth. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy.
Eleventh. Either party may have a divorce if they are related to each other within the degrees of kindred between whom marriage is prohibited by law.
Twelfth. Incurable mental illness. However, no divorce shall be granted upon this ground unless the party with mental illness has been under regular treatment for mental illness and causes thereof, confined in an institution for persons with mental illness for a period of at least three (3) years immediately preceding the commencement of the action. However, transfer of a party with mental illness to his or her home for treatment or a trial visit on prescription or recommendation of a licensed physician, which treatment or trial visit proves unsuccessful after a bona fide effort by the complaining party to effect a cure, upon the reconfinement of the party with mental illness in an institution for persons with mental illness, shall be regular treatment for mental illness and causes thereof, and the period of time so consumed in seeking to effect a cure or while on a trial visit home shall be added to the period of actual confinement in an institution for persons with mental illness in computing the required period of three (3) years confinement immediately preceding the beginning of the action. No divorce shall be granted because of mental illness until after a thorough examination of the person with mental illness by two (2) physicians who are recognized authorities on mental diseases. One (1) of those physicians shall be either the superintendent of a state psychiatric hospital or institution or a veterans hospital for persons with mental illness in which the patient is confined, or a member of the medical staff of that hospital or institution who has had the patient in charge. Before incurable mental illness can be successfully proven as a ground for divorce, it shall be necessary that both of those physicians make affidavit that the patient is a person with mental illness at the time of the examination, and both affidavits shall be made a part of the permanent record of the divorce proceedings and shall create the prima facie presumption of incurable mental illness, such as would justify a divorce based on that ground. Service of process shall be made on the superintendent of the hospital or institution in which the defendant is a patient. If the patient is in a hospital or institution outside the state, process shall be served by publication, as in other cases of service by publication, together with the sending of a copy by registered mail to the superintendent of the hospital or institution. In addition, process shall be served upon the next blood relative and guardian, if any. If there is no legal guardian, the court shall appoint a guardian ad litem to represent the interest of the person with mental illness. The relative or guardian and superintendent of the hospital or institution shall be entitled to appear and be heard upon any and all issues. The status of the parties as to the support and maintenance of the person with mental illness shall not be altered in any way by the granting of the divorce.
However, in the discretion of the chancery court, and in those cases as the court may deem it necessary and proper, before any such decree is granted on the ground of incurable mental illness, the complainant, when ordered by the court, shall enter into bond, to be approved by the court, in such an amount as the court may think just and proper, conditioned for the care and keeping of the person with mental illness during the remainder of his or her natural life, unless the person with mental illness has a sufficient estate in his or her own right for that purpose.
Q. What If A Court Has Already Entered A Custody Order And I Want To Change Custody?
Let me give you the legal “mumbo jumbo” first from the Mississippi Court of Appeals and then I will give it to you in English. The Court said, “In determining whether a material change in circumstances has occurred, the totality of the circumstances must be considered by the chancellor. Cantin v. Cantin, 78 So.3d 943, 948 (Miss.Ct.App.2012) (citation omitted). “[O]nly parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change.” Sullivan, 102 So.3d at 1197 (citation omitted).
What this means is, it does not matter if you have changed your life and become a better person. If your “ex” has not done something that poses a “clear danger” to the child, then the Court will not grant you primary physical custody. You can get visitation if you have changed your life but you cannot get primary physical custody.
Here is the case you can download by clicking on Material Change.
Q. Do you handle Youth Court Cases?
No.