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Frequently Asked Questions - Divorce

How long will it take for my divorce to be final?

You must wait at least sixty (60) days after filing an irreconcilable differences divorce for your divorce to be final.

A divorce based on grounds or a divorce in which issues are contested will take from several months to a year or more to become final.  The time frame depends upon the Judge's docket, what issues are contested and how much of a fight your spouse puts up.

What is the difference between physical custody and legal custody?

Physical custody is the where the child lives.  When you think of custody, physical custody is typically the type of custody you are thinking of.  Legal custody refers to decision making regarding the child and the upbringing of the child and allows you to obtain school, medical and other such documents.

How do I obtain custody of my child?

You and your spouse can agree on a custody arrangement.  If you are unable to reach an agreement, either spouse may petition the Court for custody.   A hearing will be held in which each parent puts on proof in accordance with the Albright Factors, the factors a Judge looks to in determining custody.  After the hearing, the Judge will determine which parent should receive custody based upon what is in the best interest of the child.

What are the Albright Factors?

The Albright Factors are factors that the Judge considers in determining which parent will receive custody of the child.  The Albright Factors are:

  • Age of the child,
  • Health and sex of the child,
  • Parent who has had the continuity of care prior to the separation,
  • Parent who has the best parenting skills and each parent's willingness and capacity to provide primary child care,
  • The employment of the parent and the demands, responsibilities and stability of that employment,
  • The physical and mental health and age of the parents,
  • The emotional ties of parent and child,
  • The moral fitness of each parent,
  • The home, school and community record of the child,
  • The preference of the child at the age sufficient to express a preference by law,
  • The stability of home environment of each parent, and
  • Other factors relevant to the parent-child relationship.

Can fathers obtain custody?

Yes, Mississippi has abolished the maternal preference and Mississippi law no longer favors the mother over the father in custody actions.  Both parents are on equal footing and whichever parent would be in the best interest of the child to have custody is the parent who is awarded physical custody.

Can a child determine which parent he or she wants to live with?

Mississippi law allows a child who is at least twelve (12) years old to tell the Judge which parent he or she wants to live with.  However, just because your child wants to live with you does not mean that you will automatically receive physical custody.  The child's preference is just one (1) factor that the Judge considers in determining custody.  Ultimately, whichever parent is in the child's best interest to have custody is the parent who will receive custody.

What is the typical visitation schedule?

Standard visitation is visitation every other weekend, four to six weeks in the summer and alternating holidays.

What is supervised visitation?

Supervised visitation means that the non-custodial parent's visitation with the child must be supervised by some other individual.  The non-custodial parent may not spend time alone with the child.  Supervised visitation may also require that the non-custodial parent only visit with the child at a particular place.

If the non-custodial parent does not pay child support, do I still have to allow visitation?

Yes, once there is a court order outlining child support and visitation, visitation rights may not be denied to the non-custodial parent, even though the non-custodial parent is not paying child support.

How is child support determined?

The non-custodial parent will be required to pay a percentage of his or her adjusted gross income each month in child support.  The percentage that the non-custodial is determined by the number of children:

Number of Children Percentage of Gross Income
1 14%
2 20%
3 22%
4 24%
5+ 26%

How are property and debt divided in a divorce proceeding?

Mississippi is not a 50-50 state.  Rather, marital property and debt are divided according to “equitable division.” The following are factors a Judge looks to in determining the division:

  • Each spouse's substantial contribution to the accumulation of the property;
  • The degree to which each spouse has previously expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets;
  • The market value and the emotional value of the property;
  • The value of each spouse's separate estate;
  • Tax and other economic consequences of the division of property;
  • The extent to which property division may eliminate alimony and other future friction between the parties;
  • The financial needs of each party considering assets, income and earning capacity; and
  • Any other equitable factors.

What factors does a Judge consider in determining whether to award alimony?

  • The income and expenses of each party;
  • The health and earning capacities of each party;
  • The needs of each party;
  • The obligations and assets of each party;
  • The length of the marriage;
  • The presence or absence of minor children in the home;
  • The age of the parties;
  • The standard of living of the parties, both during the marriage and at the time of the support determination;
  • The tax consequences of the spousal support order;
  • Fault or misconduct;
  • Wasteful dissipation of assets by either party; and
  • Any other factor deemed by the court to be just and equitable in connection with the setting of spousal support.

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For most legal matters, the most important element is time. Contact us today at our Batesville, Mississippi office at (662) 563-4613, or our Hernando, Mississippi office at (662) 429-5041.