If you are considering a divorce in Mississippi, it is important to understand the divorce laws and how they apply to your situation.
Here is an overview of the critical legal issues that are common to most divorces in Mississippi.
- Equitable Distribution: Who Gets What
- Alimony and Child Support
- Custody and Visitation
- Divorce Process
- Other Divorce Issues
Equitable Distribution: Who Gets What
Marital Property and Division of Assets
Since 1994, Mississippi has been an equitable distribution state. This means that marital property is divided fairly and equitably, but not always in a 50/50 split.
Chancery courts must first decide which assets are marital and which are separate. Then they will look at several factors to reach a fair arrangement.
These factors can include the length of the marriage, the contributions of each spouse to the marriage, prospects for future earnings and employment, the emotional and sentimental value of the assets, tax consequences, sources of retirement income, childcare, custody and alimony and other related issues.
Marital fault may also be a small contributing factor related to the division of assets. The court may take into account if the divorce is taking place based on one of the 12 grounds acceptable by law in Mississippi.
Just as a court can divide assets in a Mississippi divorce, it can also divide debts the same way. Debts will be divided fairly and equitably, but not always equally.
It’s best to try and remove yourself from all joint credit and debt obligations as soon as possible. This will avoid any problems that may come up if your spouse is tardy in paying bills. Your credit score could take a hit due to their poor actions.
Gifts and Inherited Property
Gifts or inherited assets are considered separate property in Mississippi and not subject to equitable distribution.
The key here is to not only document that the gifts or inheritance was directed at only one spouse, but that the assets were kept separately after they were received.
If they are commingled, such as putting cash into a joint bank account, then they might be considered marital assets and subject to equitable distribution.
Aside from keeping these types of assets separate, it may be possible to have a spouse sign a pre-nuptial or postnuptial agreement. It will state that the assets in question are to be kept separate under all circumstances.
Pensions, IRAs, 401Ks and Retirement Plans
Pensions and retirement accounts are often the most valuable assets in a Mississippi divorce.
Benefits earned before marriage are the pension earner’s separate property. But any pensions benefits earned during a marriage are marital property and subject to equitable division.
It may be possible to negotiate with a spouse and keep a larger share of a pension in exchange for giving up other assets. The tricky part can be determining the exact value of a pension so that a fair division can take place. It is not uncommon to retain a financial expert such as a CPA, business appraiser, pension valuator, actuary, or a Certified Divorce Financial Analyst to make an accurate assessment.
Once an agreement has been reached, to legal split, these types of accounts require the execution of a qualified domestic relations order, commonly referred to as a QDRO.
An attorney or a QDRO expert generally prepares the QDRO. The courts must approve it before it submission to the plan administrator who must also approve it. A QDRO establishes a spouse as an alternate payee. The account is divided according to the specific instructions detailed in the QDRO.
Our favorite resource to get a QDRO drafted online is QDRO Counsel! Their comprehensible platform makes drafting QDROs simple, and you can rest assured that all of your retirement information will be accounted for.
Alimony and Child Support
Alimony in Mississippi
Alimony can be granted in Mississippi temporarily during a divorce, or after a divorce is final to help one spouse move forward with their lives.
Alimony is not always automatic. The court will consider whether or not to grant alimony after a division of assets. If the property division is adequate for each party, then no maintenance will be awarded. If the court feels there is still a deficit, then a spouse may receive periodic or lump sum alimony.
As part of the determination process, courts will look at several factors:
- The length of the marriage
- The age, health and earning capacities of the spouses
- The standard of living of the spouses, both during the marriage and at the time support is determined
- All sources of income of both spouses
- The reasonable needs of the requesting spouse
- The necessary living expenses of the paying spouse
- The obligations and assets of each spouse
- Whether there are minor children in the home which may require the need for childcare
- The tax consequences of an alimony award
- Wasteful depletion of assets by either spouse
- Other related issues and circumstances presented in evidence
Child Support in Mississippi
Both parents are expected to provide for the care and costs of raising children in a Mississippi divorce. The amount of time spent with each parent generally does not factor into the amount of child support that must be paid. Child support is determined by a formula that is based on large part of what each parent’s income is.
The formula uses the non-residential parent’s gross income, and then allowable deductions are made such as for health insurance for the children, daycare expenses, or other similar expenditures. The net income is then used in the child support formula.
The child support formula uses the non-residential parent’s net income combined with the number of children under age 21 who are not married or emancipated that need to be supported:
- 1 child = 14% of net income
- 2 children = 20% of net income
- 3 children = 22% of net income
- 4 children = 24% of net income
- 5 children = 26% of net income
It is essential to track parenting time percentages. Mississippi law allows for exceptions to be made in the child support amount if you can prove you qualify for special consideration.
Child support is also not available if a child joins the military on a full-time basis or is convicted of a felony and sentenced to incarceration for two or more years.
Custody and Visitation
Child Custody in Mississippi
Mississippi has a set of state custody laws in place, but it also follows the Uniform Child Custody Jurisdiction and Enforcement Act. The Uniform Enforcement Act is a federal law that mandates each state must honor and enforce child custody rulings made by courts in other states.
Officially, courts do not recognize the wishes of the child in custody matters. Judges often consider what the child wants as part of the overall guiding principle of determining the child’s best interests.
Typically, courts prefer that parents work out child custody and visitation schedules. Most of the time, those arrangements are honored and approved by the courts.
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When parents disagree, then the court will step in and decide an appropriate course of action based on several things. This can include the child’s current relationship with each parent, their current social, educational, and religious status, and what living conditions are going to be like with each parent.
Physical custody determines where the child will live, but consideration must also be given to legal custody as well. Legal custody determines which parent will have the right to make crucial decisions for a child regarding things like education, culture, religion, and health. In many cases, this is a shared responsibility.
Grandparents’ visitation rights are also legally recognized in Mississippi.
Substance abuse is one of the grounds that can be used to file for divorce in Mississippi. You will need to prove in a clear and convincing way that drugs or alcohol played a part in the deterioration of the marriage. The abuse must show a direct correlation to irresponsible, reckless, or unfit behavior.
Substance abuse can also have an impact on child custody and visitation as well. If drug or alcohol use is present, visitation or custody may be severely restricted or even denied. In some cases, judges may allow supervised visits only until it is demonstrated that the abuse issue is no longer present.
Bifurcation of marital status
Bifurcation of marital status is legal in Mississippi, although it rarely takes place.
Bifurcation essentially means to divide the divorce into two parts.
- The first part satisfies the grounds for the divorce and allows the couple to get divorced, by determining if grounds legally exist.
- The second part is addressed at a later date and works out all the other issues of the divorce such as child custody, visitation, child support, alimony. These are generally contentious issues that may have stalled or become significant sticking points keeping the divorce from being finalized.
Mississippi is the only state that awards property to the person whose name is on the title. If only one person’s name is on the title to a car or the house, it goes to that person.
However, the court does have the flexibility to divide assets fairly and equitably. This includes assets that were acquired before and during the marriage. An equitable division does not always mean an equal split.
For these reasons, it is essential that both spouses disclose all assets, both individually and shared, so that they can be divided fairly.
Failing to do so is not only dishonest; it is illegal. If you do this and you’re caught, you could face civil and criminal penalties. Chances are you may also lose the hidden asset as part of that process.
In most states, when a spouse refuses to respond to a divorce complaint, the other spouse can file for a default judgment. However, Mississippi laws do not allow this. If a spouse fails to respond by ignoring the process, then you must go to trial, even if the spouse still refuses to participate.
You will need to prove your grounds to the judge. If the judge is satisfied with your argument, you will be granted a divorce, generally giving you most or all of what you asked for in your original complaint.
Other Divorce Issues
Domestic violence is one of the grounds for divorce in Mississippi. But aside from the impact it can have on that process, the more critical issue is to seek immediate protection when a spouse threatens or commits domestic violence.
Domestic violence is not always physical. It can involve making threats, stalking, cyberstalking, or intentionally or negligently attempting to cause bodily harm, with or without a weapon.
Domestic violence can also have a profound impact on child custody and visitation issues. If domestic violence has taken place or threatened, the court may prevent a spouse or parent from having contact with a child. In some cases, the contact may be through supervised visits only.
If both spouses are abusive, then the court will place the child in with a protective third party. This may be a social services agency or a capable relative.
Health insurance is critical in a divorce, especially when children are involved.
All employers will not allow an ex-spouse to remain on a policy after a divorce. This means they must seek out other coverage, either through their employer or by purchasing a policy on a health insurance exchange.
An ex-spouse can apply for Consolidated Omnibus Budget Reconciliation Act (COBRA) benefits. This protects people from losing health coverage during major life transitions. It lets you continue with your spouse’s current coverage for up to 36 months as long as you pay the premiums.
Depending on the circumstances of the divorce, a judge may order that one spouse continue providing coverage as part of the settlement process, or at least while the divorce is in progress. This may be especially true when one spouse has been a homemaker during the marriage.
Infidelity and Adultery
Infidelity is one of the 12 grounds for divorce in Mississippi. If you file on this ground, you must be able to prove that it took place. It should also be noted that when you present evidence of infidelity, all details and names of the parties involved will become public.
Infidelity is rarely used as a ground in Mississippi because gathering evidence can be difficult. Legally speaking, you must be able to show that your spouse had an adulterous inclination and had the opportunity to satisfy that inclination.
If adultery is discovered, but the couple still continues to live together and be intimate with each other, this is considered condonation of adultery. The court may see this as a sign of forgiveness and won’t allow a divorce to proceed using adultery as a ground for divorce.
Military Divorces in Mississippi
Under federal law that applies in Mississippi and all states, service members and their spouses have the option to file for divorce in the state where the spouse that filed resides, in the state where the service member is stationed or in the state where the service member is a legal resident.
The grounds for a military divorce in Mississippi are the same as those for a civilian divorce. You can either cite irreconcilable differences or cite one of 12 grounds as the basis for your complaint.
Military service members have certain protections under the Servicemembers Civil Relief Act. They can postpone a divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments. A service member can waive delaying the divorce by signing paperwork allowing the divorce to proceed uncontested.
Mississippi state guidelines determine child support and spousal support, but these awards cannot exceed 60% of a servicemember’s pay and allowances.
Retirement benefits and how they are divided are governed by the Uniformed Services Former Spouses’ Protection Act. The former spouse must have been married to the servicemember for a minimum of 10 years while the military member served on active duty to be able to share in any retirement benefits.
Looking for more advice about divorce? Here are a few of our favorite resources: