Mississippi Family Law Blog

Child Support in Mississippi

Mississippi is in the minority of states that requires child support paid until the age of 21 or the child is otherwise emancipated. The question is what is emancipation? Mississippi Code, Section 93-11-65 defines emancipation. As of July 1, 2008, it underwent some significant changes.

There are two specific sections. The first says that emancipation shall occur when the child:

• Attains the age of twenty-one (21) years, or

• Marries, or

• Joins the military and serves on a full-time basis, or

• Is convicted of a felony and is sentenced to incarceration of two (2) or more years for committing such felony.

Continue reading "How long do you have to pay child support in Mississippi?" »

Mississippi divorce set aside for couple representing themselves

A Hinds County, Mississippi couple, each representing themselves, had their divorce set aside by the Mississippi Court of Appeals last week. When the wife originally filed for divorce, she sought a fault-based divorce on grounds of adultery and habitual cruel and inhuman treatment. At trial, the Court denied the wife's fault-based grounds, but gave the parties an opportunity to agree to the divorce. The parties agreed to an irreconcilable divorce by filing a consent for divorce. The Chancellor then divided the marital property. The husband, upset with the division of property, appealed the case.

On appeal, the Mississippi Court of Appeals said the Chancellor erred when she granted the divorce based on irreconcilable differences. The reason was the parties failed to seek to properly withdraw the fault-based grounds for divorce. Under Mississippi law, if the divorce is originally filed as a contested divorce, the parties are required to seek leave of court, and the court must approve, the withdraw of their contest or denial of the fault-based grounds before a divorce can be granted on irreconcilable differences. The parties failed to do so. So the case was reversed and the parties have to start all over.

This case highlights the problem of representing yourself in divorce proceedings. While the parties thought they could probably "save some money" by representing themselves, they are now back to square one AND still married.

If you or a loved one is contemplating a divorce, you need to consult an experienced Mississippi divorce attorney. Contact us online or call the Kisselburgh Law Firm at 601-936-4040 to set up a consultation.

The substance abuser

Two other fault based grounds for divorce in Mississippi are habitual drunkenness and drug use. Under the statute, “habitual drunkenness” and “habitual and excessive use of opium, morphine, or other like drug” are each grounds for a divorce. Attempting to define what is meant by the statute is more difficult.

The cases in Mississippi answering the question of what is habitual drunkenness are few. In those cases where it is addressed, the courts have usually required that threats or some other adverse effect be shown on the marriage in addition to the spouse being habitually drunk. It is a very fact based ground and depends on the circumstances of each case.

Continue reading "Divorce (Part V)—Habitual drunkenness or drug user" »

If my ex's income doubles next year, can I seek a change in child support?

Yes. In Mississippi, there is a test, just like in my previous post about child custody modification, which must be followed to determine this issue. The test requires the moving party to prove:

“that a material change in circumstances has occurred since the entry of the decree, that such change was unforeseeable at the time of the decree, and that the change was not caused by willful or bad faith actions of the moving party’s part.”

Continue reading "Child Support (Part III)—Can a child support order be modified?" »

Yes. Although the Mississippi Code states that the child support guidelines are presumed to be reasonable, this presumption can be rebutted if the chancellor makes a specific finding that the application of the guidelines would be unjust or inappropriate. The factors which could justify a deviation from the statutory guidelines are:

• Extraordinary medical, psychological, educational or dental expenses;


• Independent income of the child;


• The payment of both child support and spousal support to custodial parent;


• Seasonal variations in one or both parents' incomes or expenses;


• The age of the child, taking into account the greater needs of older children;


• Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines;


• The particular shared parental arrangement, such as where the non-custodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the non-custodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent's homemaking services;


• Total available assets of the obligee, obligor and the child; and


• Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

Continue reading "Child Support (Part II)--Can the Chancellor vary from the statutory child support guidelines?" »

Does Mississippi have child support guidelines?

Mississippi, like most other states, has established specific guidelines for child support. According to Mississippi Code Section 43-19-101, if your adjusted gross income is between $5,000 and $50,000 a year, then the non-custodial parent shall pay the following percentage of their adjusted gross income in child support.

Children / Adjusted Gross Income
1 / 14%
2 / 20%
3 / 22%
4 / 24%
5 or more/ 26%

Continue reading "Child Support (Part I)--How much will I have to pay in child support?" »

Can the judge change custody after the divorce?

The short answer is it depends. According to Mississippi courts, the test for modifying child custody is that the non-custodial parent must prove by a preponderance of the evidence (more likely than not):

• That a substantial change in circumstances has transpired since issuance of the custody decree;
• That this change adversely affects the child’s welfare; and
• That the child’s best interest mandates a change in custody.

Continue reading "Child Custody (Part III)—What if something changes after the divorce. Can child custody be modified?" »

Where to file for divorce?

In Mississippi, the state constitution provides that chancery courts have exclusive jurisdiction to hear matters in divorce and alimony. In order to file for divorce in Mississippi, one of the parties to the divorce must have been a resident of Mississippi for at least six (6) months preceding the filing of the divorce. Miss. Code § 93-5-5. See my previous post for exceptions concerning members of the military. Generally speaking, a person “resides” where they permanently live. Residency usually becomes an issue when a person has recently moved from one place to another and the question is whether they intended to permanently change their residency. But the Mississippi Code prohibits a person from filing for divorce if they moved to Mississippi for the “purpose of securing a divorce.” Miss. Code § 93-5-5

The next question is in which chancery court is the divorce filed? In order to answer this question, you must determine where venue lies. Venue, that is where you file your case, is governed in divorce cases by Mississippi Code § 93-5-11.

Continue reading "Where will my divorce be filed?" »

Changing your name in a Mississippi divorce

In Mississippi, you have the right to a name change in a divorce action. If you want to change your name back to your maiden name, let your attorney know so it can be included in the Complaint for Divorce.

When the divorce is granted, the chancellor will sign a final judgment, commonly known as a decree. Although your name is legally changed by the final judgment, you still need to inform certain federal and Mississippi agencies about your change of name. Get some certified copies of the divorce decree and then get ready for some paperwork in order to change your passport, driver’s license, voter registration, and name with the Internal Revenue Service. Don’t forget to change your name with your financial institutions and credit card companies. Here are some helpful links to assist in the process.

Continue reading "Mississippi Name Change--Married or Maiden?" »

How does the judge decide who gets the children?

Jackson's Clarion-Ledger recently reported that Mississippi Judge Leslie Southwick’s nomination to the 5th Circuit Court of Appeals is stalled in the U.S. Senate. Opponents of his nomination point to two cases he ruled upon while a member of the Mississippi Court of Appeals. In one of the cases, he upheld a decision to give custody of a child to the father where the mother was bisexual. While such headlines grab attention, it does little to explain the law in Mississippi.

Continue reading "Child Custody (Part II)--What factors are used in determining child custody in Mississippi?" »

What happens to the children?

Divorce is bad enough on both parties when there are no children. However, if you have children and are contemplating a divorce, many more issues arise. How will we tell the kids? Who will tell the kids? Where will the children live? Do we split them up? What are we going to do if one of the parents moves out of town? How often will they visit the other parent who does not have custody? Who is going to make the decisions regarding the child? These are just a few of the multitude of issues which arise in the context of child custody. There are no easy answers, but if you and your spouse can not come to an agreement in the best interest of the child, then a Mississippi judge will provide those answers.

Continue reading "Child Custody (Part I)—What will happen to the children in a Mississippi divorce? " »

Divided Loyalties?

Here is a recently asked question: My spouse and I want to get divorced. Can we use the same attorney since we agree on the divorce? No.

This question usually arises when two spouses want to file an agreed divorce based upon irreconcilable differences. Given they agree to the divorce, they hope to save money by using one attorney. The problem is that Mississippi ethical rules prohibit an attorney from representing both spouses during a divorce. Given divorce is an adversarial proceeding, one attorney can not adequately represent the interest of both parties. Even in an agreed divorce, each client needs their own attorney to look out for their interest. It does not take much imagination to realize that you can not negotiate when the negotiator is the same for both parties.

The Cheating Spouse

The third most common fault-based grounds for divorce in Mississippi is adultery. Although many folks think their spouse might have cheated on them and list it in a Complaint for Divorce, Mississippi courts only granted divorces based on adultery in 2.7% of the cases in 2005.

While direct evidence of an adulterous relationship is not required (and usually difficult to obtain), it must be proven that there was both “an adulterous inclination and a reasonable opportunity to satisfy that inclination.” But, the burden of proof is higher than in most civil cases. Adultery must be proven by “clear and convincing evidence.”

Continue reading "Divorce (Part IV)—Adultery" »

Deserting your spouse in Mississippi could be grounds for divorce

Desertion comes in as the second most common fault-based grounds for divorce in Mississippi. The code defines it as a spouse’s “willful, continued and obstinate desertion of the space of one year.” What does this mean? One spouse has left the marital household for at least one year; that spouse intended to abandon the marriage (“willful and obstinate”); and the other spouse did not agree to the separation. If shown, the chancellor could grant a divorce based upon desertion of the marriage.

Continue reading "Divorce (Part III)—Desertion for One Year" »

Habitual, Cruel and Inhuman Treatment in Mississippi

In my last posting in this series, I spoke about the different grounds for divorce. In the coming posts, I want to talk in a little more detail about some of the specific fault-based grounds for divorce in Mississippi.

Following irreconcilable differences, the most common grounds for divorce in Mississippi is habitual, cruel and inhuman treatment. Just what does that mean? Does your spouse nagging you about watching too much sports count? Or your spouse yelling at you for spending too much shopping qualify? Probably not. The Mississippi Supreme Court defined habitual, cruel and inhuman treatment as conduct which “endangers life, limb, or health, or creates a reasonable apprehension of danger thereto, thereby rendering the continuance of the marital relation unsafe for the unoffending spouse, or such unnatural and infamous conduct as would make the marital relation revolting to the unoffending spouse and render it impossible for him or her … to discharge the duties thereof.” This essentially involves two different types of conduct.

Continue reading "Divorce (Part II)—Habitual, Cruel and Inhuman Treatment in Mississippi" »

What is required to get divorced in Mississippi?

First, one of the spouses must be a resident of Mississippi for 6 months or more. However, a member of the U.S. Armed Forces stationed in Mississippi and residing within the state with their spouse at the time of the separation will be considered a resident for these purposes. Second, the Complaint for Divorce must be on file for at least 60 days before the divorce can be granted. Finally, you must meet one of the statutorily created methods for divorce in Mississippi. There are essentially three methods.

The first method, and most commonly used, is known as an agreed divorce based upon irreconcilable differences. It is Mississippi’s version of no-fault divorce with a twist. In many states, one spouse may get a divorce based upon irreconcilable differences over the objection of the other spouse. Not in Mississippi. In order to use this method, both spouses must agree to divorce and agree to child custody, child support, and property division. If you and your spouse can agree on these issues, then a Joint Complaint for Divorce can be filed. After the expiration of 60 days and after the parties sign the appropriate documents, the matter may be set before the Chancellor to approve and grant the divorce.

Continue reading "Divorce (Part I)—What does it take to get divorced in Mississippi?" »