Mississippi Family Law Blog

Living with your boyfriend may cut off alimony payments from the ex in Mississippi

Here is a common scenario. Husband and wife divorce in Mississippi. The court orders the husband to pay periodic alimony of $500 per month until the death of either party, the remarriage of the wife, or further order by the court. A year after the divorce, wife is in a serious relationship with another man and they decide to move in together. Should the husband have to continue making alimony payments to the ex-wife given she is now living with another man? The Mississippi Supreme Court answered that issue.

In 1994, Mississippi adopted a more modern approach to terminating alimony when the recipient spouse is cohabitating with a person of the opposite sex. Hammonds v. Hammonds, 641 So.2d 1211 (Miss. 1994). As opposed to automatically terminating the alimony if cohabitation was proven (the old view based mainly on moral principles), the Court reasoned that one must also show there is mutual financial support in the relationship which changes the recipient spouse’s financial needs. Put more succinctly,

Modification of alimony may occur upon the existence of a situation of mutual support between the recipient spouse and another individual which alters the recipient spouses’ financial needs.

Continue reading "Cohabitation after divorce in Mississippi may equal termination of alimony" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In:

Bookmark:

Mississippi Family Law Blog ranked as a Top Family Law Blog

My blog was recently recognized as one of the Top 30 Family Law Blogs by prenuptialagreements.org, a website dedicated to discussing the benefits of prenuptial agreements. Thanks for the recognition.

If you are planning to get married, take a few moments to look around their website for articles discussing prenuptial agreements. Remember, no one plans to divorce, but it is a reality and everyone should take steps to plan in case of divorce. A prenuptial agreement is a necessary tool in that planning.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Family Law News , Marriage

Bookmark:

Moms also on the run for failing to pay child support

The news is filled with stories of deadbeat dads who fail to pay their child support and are on the run from the law. In a story this week out of Indiana, the focus is on mothers who fail to pay child support and are now running from the law. While Mississippi does not have any mothers in the top ten list of parents who owe child support, you can be assured some are on the payments owed list.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Support , Family Law News

Bookmark:

Can an alimony award be modified in a Mississippi divorce?

In order to determine whether alimony can be modified following a divorce, you must first determine what type of alimony was awarded. Generally speaking, periodic alimony, just like rehabilitative, can be modified. Lump sum alimony, along with reimbursement, can not be modified. The reasoning for the latter is that lump sum and reimbursement alimony are akin to a property settlement. But what if you were awarded periodic alimony in your divorce. Can it be modified years following the divorce and if so, how long after the award? These issues were addressed in a case this week out of Wayne County, Mississippi.

In Austin v. Austin, the parties agreed to an irreconcilable divorce in 2001 after 18 years of marriage. Under the terms of the child custody and property settlement agreement, the wife was given custody of the three children and the husband agreed to pay $1,000 a month in child support, $30,400 on March 15th each year, and $15,200 on August 15 each year (essentially $4,800 a month in child support). He also agreed to pay alimony of $1,000 a month and 35% gross of all bonuses and other compensation with the exception of his monthly draw.

Continue reading "Mississippi Court of Appeals affirms reduction in alimony and child support" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Alimony , Mississippi Family Law Update

Bookmark:

In a Mississippi divorce, can a spouse be compensated for putting the other spouse through college?

We have all heard the story of the wife who puts her husband through medical school only to have him divorce her just as he graduates. I had a similar experience in law school with a law school classmate. The question is can the spouse who supported the student spouse be adequately compensated? The problem is the benefits of that professional education have not paid off. So how can the chancellor equitably divided the marital assets?

Some states have held that a professional degree is a marital asset which can be valued and divided. However, like the majority of states, Mississippi rejected that approach in Guy v. Guy (Miss. 1999). The Court's rationale was:

Continue reading "When a college diploma leads to a divorce complaint" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Alimony

Bookmark:

In Mississippi, moral fitness plays role in child custody

Last week, in a case out of Rankin County, the Mississippi Court of Appeals affirmed the chancery court awarding custody of the couple’s minor child to the father. At trial, there were allegations of adultery, alcohol use, and downloading pornography onto the family computer. In fact, both parties called computer experts to testify at trial in an attempt to establish who downloaded the pornography.

In awarding custody to the father, the chancellor called into question the moral fitness of the mother, one of the Albright factors, given her admitted adultery, alcohol use and traffic violations in addition to an unstable work history—five to six jobs in a three-year-period.

Continue reading "Mississippi Court upholds child custody to father" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Mississippi Family Law Update

Bookmark:

$725,000 a month in alimony

$725,000 a month, or $24,000 a day, in temporary alimony is what you pay when you're a 72-year-old billionaire getting a divorce from your 60-year-old second wife and failed to get a premarital agreement before your marriage. In divorce proceedings which read more like the latest best seller from Jackie Collins, Billionaire Richard Scaife is involved in nasty divorce proceedings with allegations of dog-snatching, assault, and adultery involving a prostitute. Scaife, who is the great nephew of Andrew Mellon (for you history buffs, he is the Mellon who created a financial empire during the Gilded Age), is the beneficiary of various trusts which earn him approximately $45 million a year.

If there ever was a case needing a premarital agreement, this was one. For more details on the divorce proceedings, you can read the article from the Washington Post.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Alimony , Family Law News

Bookmark:

Returning stay at home parents to work following divorce

Rehabilitative alimony is the third type of alimony which can be awarded in a Mississippi divorce. The Mississippi Supreme Court described it a financial award "to parties who have put their career on hold while taking care of the marital home.” It is intended to allow “the lesser party to start anew without being destitute in the interim.” Lauro v. Lauro. Like periodic alimony, it is modifiable.

The classic example for rehabilitative alimony is a couple that marries and decide the wife should stay at home to care for the children while the husband works. This works great until the couple divorces. The husband has a career and is earning money, but the wife would be destitute without financial support from the husband. The wife, although she may have the ability to earn a living, needs time to return to the workforce or return to school in order to enter the workforce. During this interim period, the wife needs financial support. This is where rehabilitative alimony fits. It will provide the wife an income until such time as she is able to get back on her feet.

Continue reading "Rehabilitative alimony in Mississippi" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Alimony

Bookmark:

In a divorce, your electronic musings can end up in front of the judge

For some reason, many people believe there is some anonymity when they send an e-mail or post something online. It is amazing what people will put in an e-mail or post on a MySpace or Facebook page. Some of the most damaging evidence I have used in trial were e-mails. For some odd reason people will say things in e-mails they would never say in public. What is bad about e-mails and online postings is that those words are there for others to read. This is especially true in divorce and child custody cases. You can expect that someone will look at your e-mails and your postings to see what you are telling others.

This was confirmed by a recent article in the National Law Journal which stated, "Armed with printouts from site such as Facebook and MySpace, attorneys have used pictures, comments, and connections from these sites as powerful evidence in the courtroom." Listen up--your online postings are not private. They can become evidence either to prove you are doing something you should not be doing or used to attack your credibility when you have denied something. Look at my previous posts on these issues here and here.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Divorce , Family Law News

Bookmark:

Money can’t buy me love

The Beatles were right, at least according to a survey reported in Forbes. According to the article, a survey of those with a net worth of $1,000,000 or more found almost half of the respondents unhappy in their marriage. More surprising was the fact that 61% of the women surveyed and 43% of the men admitted to being unfaithful within the last 3 years. However, even though almost half were unhappy in their marriage, only 30% said they were contemplating divorce. The reason? According to three-quarters of the men, the fear as to how much money they would lose in a divorce. 51% of the women cited the number one reason for not divorcing was “interference with business dealings.”

The most telling aspect of the study was only about 6% of the respondents had a prenuptial agreement. A properly drafted prenuptial agreement may be able to protect your hard-earned assets in a divorce in Mississippi. If you are considering marriage in Mississippi, you should discuss the issue with your future spouse. While some are reluctant to bring up the issue feeling that it indicates they will divorce in the future, the fact is in today’s society, it is more than a possibility. A prenuptial agreement is an insurance policy. None of us plan on tragedy striking our lives, but we all plan for it everyday when we buy insurance. A prenuptial agreement is similar. Discuss the issue with your fiancé and discuss the matter with an experienced attorney.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Divorce , Marriage , Property Division

Bookmark:

Is it alimony or a property settlement?

The second type of alimony in Mississippi is lump sum alimony. However, it is really not alimony in the traditional sense. Rather, it is better to describe lump sum alimony as a cash equalizer. According to the Mississippi Supreme Court, it is a tool to be used in dividing property.

To differentiate it from periodic alimony, lump sum alimony is more akin to a property settlement. It may not be modified absent fraud. If the payor dies before the amount is paid, it becomes the obligation of the payor’s estate. It is not taxable to the recipient. Finally, it can be paid all at once or the court can order it be paid over time in installments. So how is it used?

Continue reading "Lump Sum Alimony in Mississippi" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Alimony

Bookmark:

Buyer Beware—Know what you are signing in a divorce property settlement agreement

In many divorces in Mississippi, five years following the divorce, the same amount of money is being paid in alimony despite the cost of living having increased during the same period. That same money will not buy what it once did. The solution is an alimony escalation clause. The problem is anticipating the impact of that escalation clause.

In 2000, the Mississippi Supreme Court first approved the use of alimony escalation clauses in property settlement agreements. Up until then, Mississippi courts had only addressed the use of escalation clauses in child support cases where they were, and still are, disapproved more than approved. In Speed v. Speed, the Hinds County couple entered into a property settlement agreement. Under the agreement, the husband agreed to pay $1,500 per month in alimony. The parties further agreed that the payments would “increase or decrease directly in relation to the increases and the cost of living as determined by the U.S. Department of Commerce Consumers Cost of Living Index, to be adjusted annually….” Speed at 222. For ten years, the husband paid in accordance with the agreement, but then quit paying the escalated amounts. At a contempt hearing for his failure to pay, the husband complained the escalation clause was unfair and unenforceable. The chancery court agreed. In reversing the chancery court, the Mississippi Supreme Court stated:

“Absent fraud, overreaching or mistake, escalation clauses in property agreements are enforceable even though the agreement may prove to be improvident for one party in the future.” Speed at 226.

The Court said alimony escalation clauses in property settlement agreements protect both spouses from increases or decreases in income and encouraged their use in future cases.

Continue reading "Alimony Escalation Clauses Enforceable in Mississippi?" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Alimony

Bookmark:

Cover your financial bases

Here is an interesting article in the USA Today entitled "Breaking up is hard to do financially." It offers advice for the top 5 financial mistakes couples make when divorcing. For those divorcing in Mississippi, you should discuss this advice with your attorney to ensure you are protected financially.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Alimony , Child Support , Divorce , Family Law News , Property Division

Bookmark:

What do you mean I have to support my ex-spouse!

In a previous post, I said I would talk about alimony in Mississippi more in-depth. Here is the first in a series of articles on alimony. In this post, we will focus on periodic alimony in Mississippi divorces.

First, what is periodic alimony? It is a fixed sum of money paid monthly until such time as the spouse receiving the alimony dies or remarries or the spouse paying the alimony dies. It can be modified with a showing of material change in circumstances. Its purpose is to support one spouse in cases of financial disparity. While some courts have said periodic alimony is intended to allow the spouse to maintain the lifestyle they became accustomed to while married, it is not intended to leave the paying spouse destitute. As one court stated, “the chancellor should consider the wife’s reasonable needs and the husband’s right to lead as normal a life as possible with a decent standard of living.” LaRue v. LaRue The fact is that most divorced couples can not maintain the same lifestyle they had while married given many expenses are duplicated after divorce.

Continue reading "Periodic alimony in Mississippi" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Alimony

Bookmark:

Mothers favored over fathers in child custody disputes in Mississippi?

Here is an interesting article today from the Clarion Ledger on whether mothers are more likely to get custody of children in a Mississippi divorce. According to the article, biological fathers are the custodial parents in only 3% of the child custody cases in Mississippi. However, the article points out that the overriding standard in Mississippi is what is in the best interest of the child. You can see my previous posts on these issues here, here or here.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Family Law News

Bookmark:

Failing to pay child support in Mississippi can be a felony

In a previous post, I spoke about different forms of punishment the federal and state government can use to those who fail to pay child support. The one thing I did not speak about is putting you in jail. Yes, a person who intentionally fails to pay child support in the State of Mississippi could be guilty of a felony and subject to fines and/or prison time.

Under Mississippi law, it is a felony to “desert or willfully neglect or refuse to provide for the support and maintenance of his or her child or children, including the natural parent of an illegitimate child or children wherein paternity has been established by law or when the natural parent has acknowledged paternity in writing, while said child or children are under the age of eighteen (18) years.”

Continue reading "Non-payment of child support in Mississippi can land you in jail" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Support

Bookmark:

Mississippi testing electronic filing system for state courts

The Madison County Journal recently reported that the Madison County, Mississippi Chancery Clerk and Circuit Clerk were authorized by the Mississippi Supreme Court to test an electronic filing system similar to one currently used in Mississippi Federal Courts. The testing of the program will be over a four month period.

Chancery Clerk Arthur Johnston was quoted as saying the system might not be practical for state courts. However, having used the system myself in Federal Courts and in other state courts, I can tell you there is no reason we should not be implementing it here in Mississippi. It benefits clients, attorneys, and court personnel. I’m holding out hope Mississippi will implement the system statewide and join a majority of jurisdictions where electronic filing systems are the norm and working quite well.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Legal News

Bookmark:

Child Support fee waived by Texas and Arkansas

In an update to a previous post regarding custodial parents being hit with a federally mandated $25.00 fee to help defray the cost of collecting child support, two more states have jumped on the bandwagon to waive the fee for those custodial parents. According to a recent article, Texas and Arkansas are the most recent states to say they will not charge the fee or they will collect it from the non-custodial parents who owe the child support. Maybe Mississippi will be the next state to see the inequity of charging this fee to those who are owed the child support.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Support

Bookmark:

Domestic violence victims beware

Reading The Clarion-Ledger this morning, I came across an article which should give everyone pause. According to a recent study, Mississippi ranks 5th in the U.S. in domestic violence homicides. Read that again, not just violence, but homicides. Only Nevada, Alaska, Louisiana, and New Mexico ranked higher.