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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

As of January 1, 2008 at least one of the spouses must be a resident of the state for at least six months before a divorce may begin, and the chancery court shall have jurisdiction on suits for divorce. A divorce based on irreconcilable differences may begin in the county where either party resides. A divorce based on fault grounds must be filed in the county where the plaintiff resides if the defendant resides outside of the state or cannot be located, or it can be filed in the county where the defendant resides if said party is a resident of this state. [Based on Mississippi Code, Title 93, Section 93-5-5 and 93-5-11]

LEGAL GROUNDS FOR DIVORCE: A divorce may be granted on the grounds of irreconcilable differences if both parties agree. Complaints for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard. A divorce may also be granted on the following fault grounds:

1. Natural impotency.

2. Adultery, unless it should appear that it was committed by collusion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after a knowledge by complainant of the adultery.

3. Being sentenced to any penitentiary, and not pardoned before being sent there.

4. Willful, continued desertion for a period of one year.

5. Drug or alcohol addiction..

6. Habitual cruel and inhuman treatment.

7. Insanity at the time of marriage, if the party complaining did not know of such infirmity.

8. Bigamy.

9. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of such pregnancy.

10. Kinship to each other within the degrees of kindred between whom marriage is prohibited by law.

11. Incurable insanity. [Based on MS Code, Title 93, Section 93-5-1 and 93-5-2]

PROPERTY DISTRIBUTION: Mississippi is an equitable distribution state, with the added twist that each spouse retains his or her property for which he or she has title, but jointly titled property will be divided equitably by the court. If the property settlement is disputed, the division of property is up to the judge.

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: The court may order the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed. [Based on MS Code, Title 93, Section 93-5-1 and 93-5-23]

SPOUSE'S NAME: There is no laws directly addressing changing a spouse's name upon divorce, but each spouse has the right to petition the court for a name change.

CHILD CUSTODY: If the parents can't come to a mutual agreement concerning custody, the court shall base it's decision on the best interests of the child. There is no presumption that either parent is better suited for custody based on gender. In making an order for custody to either parent or to both parents jointly, the court may require the parents to submit a plan for the implementation of the custody order. If custody is disputed, there shall be a rebuttable presumption that it is detrimental to the child, and not in the best interest of the child, to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. [Based on MS Code, Title 93, Section 93-5-24]

MS CHILD SUPPORT: The "Income Shares" model is used as a base for determining child support. When proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each. The duty of support of a child terminates upon the emancipation of the child.

HOW TO ENFORCE CHILD SUPPORT IN MISSISSIPPI – THE 2008 FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have decided to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful and methodical considerations you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have.

These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF MISSISSIPPI: