Mississippi Family Law Blog

Free Mississippi Divorce Guide

For those contemplating a divorce or just considering their options, you might find the answers to your questions in my recently completed C.D.--the Mississippi Divorce Guide. In the C.D., I discuss:

• Different ways to resolve a divorce;


• An overview of a divorce case in Mississippi;


• How is the property divided in a divorce;


• How child custody is determined;


• What are the child support guidelines in Mississippi; and


• 5 steps to take when divorce is at your doorstep.

If interested in obtaining this free C.D., click on this page.

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Downturn in housing market impacts divorce

The downturn in the housing market is impacting the ability of some to divorce. Quite frankly, they can not afford to divorce given they owe more on their home than it is worth. In an article out of California, the impact of the housing downturn is amplified. While housing prices were up, it was easier to split the couple's assets with the home usually being the largest asset. As one person quoted in the article said, "the hardest thing was picking a Realtor." But with the downturn in housing prices, it is more difficult. Even if one spouse wants to stay in the home, they must be able to afford the house payment as well as pay off the other spouse for their share of the equity (although that is diminishing as prices slide).

More troubling is when one spouse wants to sell and the other does not. This puts the courts in the position of deciding whether to order a sale or wait in hopes the real estate market will rebound. As the article points out, these economic times raise many issues when homeowners divorce.

Continue reading "Breaking up is harder to do" »

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Posted In: Divorce , Property Division

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Common tax issues in a divorce

As a Mississippi divorce lawyer, I've seen my share of tax issues arise during a divorce. Three common tax issues are: whether alimony payments are taxable, whether child support payments are taxable, and which spouse gets to takes the tax exemption for the children.

With regard to alimony, the Internal Revenue Service states that alimony "is a payment to or for a spouse or former spouse under a divorce or separation instrument." To be alimony, certain requirements must be met and the rules are different for documents executed after 1984 and those executed before. However, generally alimony payments are deductible from your gross income for those making alimony payments and generally are included in the gross income of a person receiving alimony payments. Again, a word of caution. You must determine whether you are paying or receiving alimony as defined by the Internal Revenue Service. Additionally, if you are receiving alimony, you may need to make estimated tax payments as no tax is withheld from alimony payments. Again, a qualified tax professional can answer these questions.

Continue reading "Common tax pitfalls in a divorce" »

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Some tips for the tax season

As CPAs, accountants, and others are burning the midnight oil preparing tax returns, a recent article provides some helpful tips for those undergoing a divorce or recently divorced.

In my next post, I will discuss some common tax problems in a divorce.

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Posted In: Alimony , Child Support , Divorce

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Dividing Retirement Benefits in a Mississippi divorce

Continuing on with my previous post on this subject, the second step for the chancellor in dividing retirement benefits in a Mississippi divorce is valuing the assets. How much are the retirement benefits worth? With a defined contribution plan, this is relatively easy as you know how much money is in the account at the valuation date or you should be able to get that information from the plan administrator. However, what if some of the benefits benefits (the employer's contribution) are not vested (that is, the employee is entitled to at the time) and are those benefits valued the same? A more difficult proposition is if the employee's retirement benefits are a defined benefit plan. In this case, it will require a formula to calculate the value of the benefits earned during the marriage. This calculation can be complex and can require the assistance of a professional.

The final step for the chancellor is how to divide the retirement benefits. This falls back to the analysis discussed in earlier post regarding the division of marital property in a Mississippi divorce.

A review of these posts regarding dividing retirement benefits in a Mississippi divorce should make it apparent that this is not a job people should attempt on their own. While you may be able to work out the basic framework for dividing the retirement benefits, you should seek the advice of a divorce attorney to protect yourself against a potential minefield.

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Posted In: Divorce , Property Division

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If spouses are unable to agree on how to divide retirement benefits in a Mississippi divorce, then the job falls to the chancellor. Retirement benefits are no different than other property in a divorce. Essentially, there are three steps.

• Determine the character of the property;


• Determine the value of the property; and


• Determine how to divide the property.

Let's take each of these steps separately.

Continue reading "How the Mississippi judge divides the retirement nest egg" »

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Posted In: Divorce , Property Division

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Guess Who’s Not Coming to Dinner

Continuing on in the discussion of the pitfalls of ERISA when dividing retirement benefits during a divorce in Mississippi, this next case illustrates the importance of complying with ERISA as well as changing the beneficiary forms following a divorce.

In Kennedy v. DuPont, Mr. Kennedy was an employee of DuPont and participated in their savings and investment plan (SIP) that was an ERISA benefit plan. In 1971, Mr. Kennedy married and three years later signed a beneficiary designation identifying his new wife, Liv Kennedy, as the sole beneficiary of the SIP plan. Twenty years later, the couple divorced. As part of the divorce, the ex-wife agreed to relinquish all rights to husband’s pension benefits with DuPont. Although a QDRO was submitted and approved, the QDRO did not address the benefits in the husband’s SIP account nor did the husband ever change the beneficiary designation for the SIP account. It only addressed the other pension benefits Mr. Kennedy had at DuPont.

Continue reading "Divorce and Death—dividing the Nest Egg" »

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Too many pieces of the financial pie

In a recent 2008 decision from the Fifth Circuit Court of Appeals (which handles federal appeals out of Mississippi as well as Texas and Louisiana), the need for a properly drafted QDRO in a divorce was stressed. This case illustrates the problem of not complying with ERISA in drafting a QDRO. Seemingly, one attorney thought a court order was sufficient, while the Fifth Circuit reminded the attorney that ignoring the dictates of ERISA is at your own peril.

Taliaferro v. Goodyear Tire & Rubber Co.involved a man married and divorced twice. The husband, who worked for Goodyear Tire & Rubber, divorced his first wife. The divorce decree required the husband to pay child support but he fell behind. In 2001, his first ex-wife took him to court to collect the child support arrearages. The state district court granted the ex-wife a right to collect the child support from his retirement account at Goodyear. The attorney sent a notice to Goodyear claiming an interest in the retirement account. In response, Goodyear told the attorney he needed to provide a Qualified Domestic Relations Order (QDRO) and supplied the attorney with the guidelines. (NOTE: QDROs can be used to collect child support.) However, the attorney never provided Goodyear with a QDRO. Rather, Goodyear received two additional state court orders directing it to withhold child support payments from the husband’s retirement account. Each time, Goodyear told the parties a properly drafted QDRO was required and each time this request was ignored.

Continue reading "Competing claims for retirement benefits" »

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Posted In: Divorce , Property Division

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Dividing Pension Plans in a Mississippi Divorce

Two major concerns arise when dividing pension plans benefits governed by ERISA. First is whether the pension plan administrator will follow the directives of the divorcing spouses. The second is how can the transfers take place without the recipient spouse being taxed by the IRS for an early withdrawal.

Assuming the husband's retirement account (using our previous example) is controlled by ERISA (which controls most private employer accounts), the retirement plan administrator will require a Qualified Domestic Relations Order (QDRO) before he will divide the benefits. ERISA prohibits state laws from interfering with ERISA plans. An exception created by Congress is the QDRO. A QDRO is a judgment, decree, or order issued by a state court which:

Continue reading "Dividing the Nest Egg in Divorce" »

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The Nest Egg and Divorce in Mississippi

Here is a common situation I see as a Mississippi divorce lawyer. A wife wants to divorce her husband. The husband works for a large employer in Madison, Mississippi and has accumulated a nice retirement account from the employer while married to his spouse. In fact, other than the house, the husband’s retirement account is the largest asset this couple owns. The wife wants to know if she is entitled to any of the retirement account. If so, can it be divided.

The answer to the first question depends on how the retirement account was earned. Generally, a retirement account that was accumulated during the marriage is marital property. The reasoning is that wages and benefits of employment earned during the marriage are marital property. That brings up the second question—how can the retirement account be divided?

Continue reading "Pension Plans and Divorce" »

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Posted In: Divorce , Property Division

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How to divide the Retirement Nest Egg in a Mississippi Divorce

As a Mississippi divorce lawyer, it surprises me the number of people who overlook the implications of retirement benefits during a divorce. For most individuals, retirement benefits are usually their biggest asset outside of their home. In the next couple of posts, I will discuss some common issues seen with retirement benefits and divorce.

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Buying her a drink may lead to divorce in Mississippi

A word of caution for those married folks with wandering eyes. Next time you are away on business and the person next to you at the bar becomes friendly, you might think twice about responding. According to a recent article, some spouses are hiring an attractive private investigator in an attempt to seduce an unsuspecting, but disloyal, spouse. In those cases where the P.I. is successful in luring their victim, the matter ends up in divorce court.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Divorce , Family Law News

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Here's another article about how the holidays increases the prospect of divorce. Between a focus on relationships or mixing relatives and alcohol, a number of folks come out of the holidays headed for the marriage counselor or divorce court.

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But the decree said he was responsible for that bill!

A common misconception among people going through divorce in Mississippi is the responsibility of paying debts following divorce. Here is a classic example: Husband and wife have two cars, both financed through their bank and both of their names are on the loans. During the divorce negotiations, the wife and husband agree to each keep the vehicle they drive and each agrees to pay for their own car. Following the divorce, the wife is very diligent in making timely car payments. Six months after the divorce, she goes to the bank for a loan and is denied because her credit score is too low. Upon checking, she finds that her credit score was lowered because her ex-husband was not making the payments on his car. How can this happen? Didn’t the divorce split the debts? Didn’t her husband agree to pay the debt? Not so fast. She is still financially responsible for the debt because her name is on the loan.

Continue reading "Your credit score following divorce" »

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Posted In: Divorce , Property Division

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Mississippi Lt. Governor Phil Bryant and some lawmakers are looking to propose legislation to discourage divorce. According to the Clarion-Ledger, Bryant and other lawmakers debated the issue at a recent meeting prior to the legislative session. While some lawmakers saw the benefit of such legislation, others felt that the government should not be involved in discouraging divorce. Stay tuned for more news as the legislative session begins Tuesday.

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Posted In: Divorce , Family Law News

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New Year brings with it increase in divorce filings

Here is an interesting article which says that the New Year is a time when many couples will make the decision about whether to divorce. The decision to divorce is usually put off during the holidays but resurfaces with the passage of a New Year. If you are contemplating a divorce, make sure you have done your homework. Talk with an attorney to understand your options, read the many articles on preparing for a divorce, including the ones I've posted on this site, and if you are still undecided, seek professional help from a marriage counselor.

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Posted In: Divorce , Legal News

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Over the past month, I have talked about the steps in preparing for a divorce in Mississippi. To recap, they are:

Step 1: Hire a Wise Advisor

Step 2: Get a Safe Deposit Box

Step 3: Get a Complete Picture of your Family Finances

Step 3A: Determine what you family owns

Step 3B: Determine what you family owes

Step 3C: Determine what your family makes

Step 3D: Determine what your family spends

Step 4: Make copies of all financial documents

Step 5: Inventory, Photograph, and Safeguard Personal Property

Step 6: Establish your own credit

Step 7: Make an assessment of your financial accounts

Step 8: Get a handle on credit accounts

Step 9: Consider hiring a private investigator

Step 10: Get your career in order

Step 11: Get yourself prepared mentally for divorce

Step 12: Behave

Now that we have completed this series, I want to reiterate that the series was not intended to advocate divorce. In fact, if you are unsure about divorcing your spouse, seek professional help from a counselor or therapist. You may be able to save your marriage and that should be your first priority, if possible.

The series was intended for those who have already made the decision to seek a divorce and intended to assist them in preparing for the process. The process can be emotionally taxing and all-consuming, but if you follow the steps in the posts, you will be better prepared for the process, will probably save yourself legal fees given you are organized and prepared, and will ease some pain associated with divorce.

As always, remember the first step—seek a wise advisor. Although we live in a DIY (Do It Yourself) society, save the DIY for remodeling the kitchen, not remodeling your life. You need an experienced professional on your side. If you are contemplating a divorce in Mississippi, you can contact me to make an appointment so we can discuss your options.

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Posted In: Divorce , Preparing for Divorce

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Step 12 - Behave

In the last step in preparing for divorce in Mississippi comes the most basic and most ignored step in the process. Behave. What I mean is in a divorce, your conduct is judged by many. During a divorce, you live in a fish bowl, so behave.

Your spouse, their family and friends, their attorney, and others (including private investigators) will look for any bad behavior on your part. Most importantly, if you go to court, the chancellor will judge your conduct. Emotions run high in a divorce, but keep them in check. You don't want to hear a tape recording of you yelling at your spouse played back in court. It might have been an isolated incident, but it can set the tone for the remainder of the court proceedings.

Also, behave when it comes to your social life. You are still married. Now is not the time to hit the single bars and live it up. If that is your goal, wait until you are divorced. Also, don't date. You're still married. Remember, during a divorce many attorneys will request a copy of your cell phone records and e-mails, so watch who you call and watch what you say in e-mails. They are not private.

FInally, a word of caution for those with children. You and your spouse are getting divorced, not your children. Your children are part of you and your spouse. If you criticize your spouse in front of your children or to your children, you are only tearing down your children. Save your gripes about your spouse for your close friend, family member, or therapist. Do not put the children in the middle. They will have a hard enough time with the divorce. This rule applies even if your spouse does not follow it. Be the better person and take the high road. It pays in the long run.

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Posted In: Divorce , Preparing for Divorce

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Step 11 – Get yourself prepared mentally for a divorce

Working off the last step, you also need to protect your emotional health. If you have not already done so, you should look at forming a relationship with a therapist or counselor. Divorce is one of the most stressful events in your life. Don't go through this alone.

If you are not comfortable talking about your problems with a professional, then make sure you have some solid family members or friends you can lean on. Shore-up those relationships if needed. Don’t look to your attorney for this help. While your attorney should be able to recommend a counselor for you to see, your attorney is not a mental health specialist. Rely on mental health professionals for your emotional needs and let your attorney handle your legal needs.

Continue reading "Preparing for Divorce in Mississippi: Step 11 - Get yourself mentally prepared" »

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Posted In: Divorce , Preparing for Divorce

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