DIVORCE AND CHILD CUSTODY:
The Chancery Court in your county of residence hears divorces and child custody cases among other things. Mississippi has thirteen grounds for divorce but most people are only familiar with one; “no fault,” which is a divorce on the grounds of irreconcilable differences. Few realize, when they first seek advice about a divorce, that they can only get a divorce on the ground of irreconcilable differences if the two spouses agree on everything (child custody, child visitation, child support, the division of property, and the payment of debts) or if they agree to the divorce and also agree to submit all (or at least some) of the other issues to the Judge for decision. So, it is a myth that anyone can get a divorce in Mississippi because of irreconcilable differences.
The other dozen grounds cannot be used by agreement of the parties and they must be proven. The ground must also be corroborated by other evidence such as independent witnesses, photos, video tapes and the like. That can be a very difficult burden to meet. For example, the other ground frequently mentioned by clients is “habitual cruel and inhuman treatment.” That requires proof of continuing, frequent, physical violence (hitting, kicking, shooting, etc.) that places a spouse in fear of death or serious bodily harm. Again, there must be witnesses. How many men beat their wives in public?
Another myth is that “women always get custody of children.” That may have been true twenty years ago but no longer. Our lawyers have gained custody of children for men, even where the child was female and under four years of age. The issue of custody should come down to what is in the best interest of the child or children.
It also is not true that property in the name of a person belongs to them. Title is not as important as it was just a few years ago. Property acquired during the marriage, especially if it is acquired with income earned during the marriage or the joint efforts of the parties, is generally subject to equitable division. Legally, that does not mean the property will be divided equally but, in practice, that is usually the result.
Every divorce is different and each is dependent on the facts of the case. They can also be expensive depending on the issues involved and the amount of property available. To learn more about divorce grounds, the factors bearing on child custody and other major issues such as alimony and child support, please read the booklet prepared by this firm a few years ago to answer many questions usually asked.
Also known as Anti-nuptial agreements, these are contracts for couples planning to marry where one or both want to set aside certain assets that will not go to the spouse in the event of death or divorce. These may be desirable for a variety of reasons but the two most likely are, 1) one party has a large estate and wants to protect it in the event the marriage does not work out, or, 2) one or both of the parties have a family by a prior marriage and they want to insure that their children or grandchildren share in their accumulated estate. When the estimated rate of divorce is fifty percent of all marriages, a prenuptial agreement may be a good bet.
Regardless of the motivation, such agreements are generally recognized in Mississippi (and many other states), but our courts have had few opportunities to decide just what the limits are. Suffice it to say, these are not garden variety contracts and there are some special considerations. If you are contemplating a prenuptial agreement, here are the things remember:
- One lawyer cannot represent both parties;
- Each party (for sure the one with the large estate who needs the agreement) must make FULL written disclosure of all assets and the values;
- Both parties should have adequate time BEFORE the marriage to consider the contract; and
- Although one party MAY be unrepresented, it is best if both have competent legal advice before signing.
Generally, a prenuptial provides for property to pass to persons other than your new spouse in the event of death or divorce, and treats the property accumulated after marriage differently. However, there are many other options as well. Some of the most publicized prenuptials provide for specific settlement in the event of divorce regardless of how much property is accumulated after the marriage. Think Donald Trump and Tiger Woods.
These agreements come with some uncertainty, especially in Mississippi, but it is better to have one than not.
One question most ask or want to ask is, “How do I bring this up to my beloved?” Well, if there are things you cannot discuss with him or her, why are you going to marry? If you have a good reason for the request, why hesitate? If someone is marring you for your money or property, when is the best time to find out? OK, it’s hard. But if it is important to you, get it out of the way as early as possible and remember that avoiding a problem doesn’t lead to a solution.
For more information, please click here.