Divorce, Wills & Estates, and Real Estate FAQs
How do I get a divorce in Mississippi?
One of the parties must have lived in Mississippi for six (6) months. If not, then Mississippi courts do not have the authority to grant a divorce between the parties.
There are two (2) methods of divorce in Mississippi. The first is based on Irreconcilable Differences between the parties. This is commonly known as a "No-Fault Divorce". In order to enter into a no-fault divorce, both parties must voluntarily join in a petition requesting a divorce.
The second method is a contested divorce based on the fault of one of the parties. The party requesting the divorce must prove that the spouse is guilty of at least one of the twelve possible grounds for divorce. These specific grounds are set out by statute and include adultery, habitual drunkenness, habitual use of drugs, and habitual cruel and inhuman treatment.
Do I have to have a lawyer to get a divorce?
No, an attorney is not required to file a joint complaint for divorce in Mississippi. However, there are numerous risks in preparing any legal document without an understanding of Mississippi law. This is especially true of a divorce. If the divorce is not prepared according to statutory requirements it will not be valid. In the best case scenario an improper divorce will be denied entry by the judge. In a worst case scenario it could be declared void years later after the parties have moved on to other marriages or relationships.
Additionally, a divorce is not easily modified once it has been entered by the Court. If the parties fail to properly address issues within the divorce they may not be able to do so later. A divorce is a major undertaking that will likely affect both parties and the children for a long time. It should not be something entered into without proper legal counsel.
How long does it take to get a No-Fault divorce?
The Complaint must be on file with the Chancery Clerk for at least sixty (60) days before the Judge can grant a divorce. During this 60 day period, the parties are still married for all legal purposes. At any time during this waiting period, either party can withdraw his or her consent to the divorce and stop the process. After the expiration of the 60 day waiting period, the divorce can be presented to the Judge for approval. The divorce is not finalized until the Judge signs the Judgment of Divorce. This means that the parties are not automatically divorced on the 61st day but remain married until the Judgment is signed and filed with the chancery clerk.
What are the grounds for divorce in Mississippi?
As set forth in Mississippi Code Section 93-5-1 and 93-5-2, they are: natural impotency, adultery, sentenced to penitentiary without being pardoned, continued willful desertion for 1 year, habitual drunkenness, habitual and excessive use of drugs, habitual cruel and inhuman treatment, insanity or idiocy at the time of the marriage if the party complaining of same did not know of the mental infirmity, marriage to another person at the time of the pretended marriage, pregnancy of the wife by another at the time of the marriage if the husband did not know of the pregnancy, incest, incurable insanity, and irreconcilable differences.
How can I get a legal separation from my spouse?
There is no such thing as a "legal separation" in Mississippi. Regardless of what you've heard, it simply does not exist.
How does the Court divide assets in a divorce in Mississippi?
The Court uses a process called "Equitable Distribution". This system is premised on the idea that the division of marital assets should be fair but not necessarily equal. In equitably dividing the assets, the court considers the following (known as the Ferguson factors):
(1) Substantial contribution to the accumulation of the property. Factors to be considered in determining contributions are as follows:
a. Direct or indirect economic contribution to the acquisition of property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
(2) The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
(3) The market value and the emotional value of the assets subject to the distribution.
(4) The value of assets not ordinarily, absent equitable facts to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
(6) The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
(7) The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and
(8) Any other factor which in equity should be considered.
What are the types of child custody in Mississippi?
Mississippi law divides child custody into two categories: legal and physical custody.
"Legal custody" determines who has the right to make legal decisions on behalf of the child. This would include deciding where to enroll the child in school and making determinations relating to medical treatment. This authority can be awarded jointly to both parents or solely to one parent.
"Physical custody" relates to who the child physically lives with. Physical custody can also be awarded solely to one parent or to both parents jointly. Joint physical custody usually means that the child is with both parents an equal amount of time. While this may seem "fair" to the parents, it can be upsetting to the child's sense of stability and is frowned upon by many Judges.
How does the Court decide who gets custody of the children?
The Court's paramount concern in determining custody is the 'best interest of the children'. To guide them in making this determination the Court considers the following (known as the Albright factors):
(a) age of the child;
(b) health of the child;
(c) sex of the child;
(d) a determination of the parent that has had the continuity of care prior to the separation;
(e) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care;
(f) the employment of the parent and responsibilities of that employment;
(g) physical and mental health and age of the parents;
(h) emotional ties of parent and child;
(i) moral fitness of the parents;
(j) the home, school and community record of the child;
(k) the preference of the child at the age sufficient to express a preference by law;
(l) stability of the home environment and employment of each parent;
(m) other facts relevant to the parent-child relationship.
What visitation is normally granted to a non-custodial parent?
Visitation can be awarded in any manner which suits the needs of the parties and the children. However, many courts have their own "standard" visitation schedules. It is important to have an attorney who is familiar with what visitation each court normally awards.
How does the Court decide how much child support to award?
The amount of child support is generally based on the income of the payor and the number of children.
If the payor has an annual income of more than $10,000.00 and less than $100,000.00, he/she will pay a percentage of his/ her adjusted gross income. To determine adjusted gross income, you subtract taxes, social security, mandatory retirement and disability payments from the gross income. The percentages of support are as follows:
1 child - 14%
2 children - 20%
3 children - 22%
4 children - 24%
5 or more - 26%
This is just a guideline and the Court will consider special needs of the child, prior child support obligations of the payor, and any other relevant factors.
How can child support be changed?
The party requesting the change must show a "material change in circumstances" since the entry of the most recent order awarding child support. This means that the situation must have changed since the last order. The most common circumstances that constitute a change recognized by the Court is the increased needs of the children or an involuntary reduction of income by payor.
Can a Court order a parent to pay for a child's college education expenses?
Yes. However, the duty to pay for a child's college education is not absolute. The child must earn the privilege of getting their college expenses paid for. The child's behavior and attitude toward a parent may affect the parent's obligation to pay for college education expenses. The Mississippi Supreme Court stated: "The parental duty is not absolute, however, but is dependent upon the proof and circumstances of each case. It is dependent, not only on the child's aptitude and qualifications for college, but on whether the child's behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him. Sending children to college is expensive and can cause much sacrifice on the part of parents. It cannot ordinarily be demanded, but must be earned by children through respect for their parents, love, affection and appreciation of parental efforts. . ." Hambrick, 382 So.2d 474 (Miss. 1980).
Can the Court order that a parent pay for a child's college education beyond the age of 21?
No. Unless the parent otherwise agrees in writing to pay for the child's college beyond the age of 21, the obligation to pay for college stops at age 21. The Court does not have any authority to order post-majority support beyond what the parents have specifically contracted to do.
When does child support stop?
Unless otherwise agreed, child support stops when the child reaches the age of 21, or earlier if the child is emancipated. A child shall be deemed emancipated if the child: (1) reaches the age of 21; or (2) gets married; or (3) joins the military and serves on a full-time basis; or (4) is convicted of a felony and incarcerated for two or more years.
Also, the court may determine that a child is emancipated if the child: (1) discontinues full-time enrollment in school if the child is 18 (unless the child is disabled); or (2) voluntarily moves out of the custodial parent's home, establishes independent living arrangements, obtains full-time employment and discontinues the pursuit of an education prior to reaching 21; or (3) cohabits with another person without the consent and approval of the non-custodial parent.
How does the Court decide whether to award alimony?
The most relevant factor in determining whether one party is entitled to an award of alimony is the length of the marriage. Generally speaking, the shorter the marriage the less likely the Court is to award alimony.
The other factors which are considered are:
(1) the income and expenses of the parties;
(2) the earning capacities of the parties;
(3) the needs of each party;
(4) the obligations and assets of each party;
(5) the length of the marriage;
(6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
(7) the age of the parties;
(8) the standard of living of the parties, both during the marriage and at the time of the support determination;
(9) the tax consequences of the spousal support order;
(10) fault or misconduct;
(11) wasteful dissipation of assets by either party; or
(12) any other factor deemed by the court to be "just and equitable" in connection with the setting of spousal support.
What are the different types of alimony in Mississippi?
(1) Lump sum alimony, which is a fixed amount, is final, is considered a property transfer, and cannot be modified, nor is it affected by death (ie. binding on estate) or re-marriage.
(2) Periodic alimony, which is vested when due, is subject to modification, may be forfeited by the receiving spouse by misconduct, is terminated upon the death of either party or by remarriage or cohabitation of the receiving spouse, is deductible by the payor and taxable as income to the payee.
(3) Rehabilitative alimony, which is for a fixed period of time, but the amount of the alimony paid is modifiable (ie. the time period is not modifiable, but the amount is modifiable).
Do grandparents have an equal standing for custody of the children than the parents?
The short answer, with few exceptions, is no.
In a custody dispute between the parents of a child and that child's grandparents, there is a presumption that it is in the best interest of that child to remain with the natural parents. In order to overcome this presumption, there must be a clear showing by the grandparents that the parent has (1) abandoned the child, or (2) the conduct of the parent is so immoral as to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child. McKee v. Flynt, 630 So2d 44 (Miss. 1993).
Do grandparents have visitation rights?
Not without a court order granting these rights. In certain circumstances grandparents can petition the Court to establish visitation rights with their grandchildren.
Wills & Estates FAQs
My husband died without a Will. We have two children. Will I inherit everything?
No. You will inherit from your husband in an equal share as your children. In other words, you and your two children will each inherit one-third (1/3) of his estate. This can be a problem because (1) your children are minors (under 21) and a guardian will have to be appointed; and (2) your children and you will own both real and personal property in a one-third (1/3) share each.
My husband told me how he wanted his property to pass when he died. He wanted me to have everything. However, he never got around to writing it down in a Will. Do I have to share his estate with his kids?
Probably. An oral will is very difficult to prove.
My husband wrote a new Will last year. Just days before he died he told me he wanted to change his Will to leave everything to me. Do I have to probate the Will since he told me that he wanted me to have everything?
Yes. Without more, your husband's statement that he wanted to change his Will to leave everything to you is insufficient to revoke his previous Will. Therefore, the Will must be probated.
My wife and I have two young children. We want to write a Will leaving everything to each other. However, we are concerned that we could get killed in a car wreck or some other event. What should we do to cover the possibility that we could be killed at the same time and protect our children's inheritances?
This is the question most couples with young children face when preparing their Will. First, you can name in your Wills whom you want to be guardians of your children (i.e., who you want to raise your children). This requires that you give a lot of thought as to whom you feel comfortable with in raising your children. Second, you should consider writing a provision in your Wills which states that in the event both of you should die in a common incident or occurrence, that all of your assets go into a testamentary trust for the benefit of your children. You would need to name a Trustee who administers the trust (i.e., watches over, manages, and pays money out of the trust to the guardian to be used for the benefit of the children). In choosing a Trustee, you should consider who you consider to be very responsible with money and whom you trust to manage the children's money. While it may naturally seem that the same person(s) who you name as guardians of your children should also be the Trustee, that is not always the case. A Trustee can be a family member, trusted friend, or a Trust Department at a local bank.
Is there something that I can do with my land that will keep my family from having to open an estate just because I owned land?
Yes. Prior to your death, you can deed the land to someone you want to have it. However, you should be very careful in doing this and consult an attorney before you do this.
A better alternative is to title the property in a way that it passes outside of your estate. One way to do this is to have a deed prepared conveying it from yourself to you and others, as Joint Tenants with Full Rights of Survivorship and not as Tenants in Common. The "right of survivorship" language ensures that as soon as you die, title automatically passes to your surviving joint tenants. However, there may be other considerations you need to take into account before doing this. You need to consult an attorney for advice before doing anything.
If my father left a Will which leaves everything to me and excludes my brother and sister, do I have to probate his Will? I'm afraid that doing so will only hurt my brother's and sister's feelings.
Yes. You do have to probate the Will. Mississippi has a criminal statute which provides that if you secret away a Will and do not probate it, you are guilty of a felony and can serve up to two years in jail. However, to be certain you don't create a problem for yourself even though your heart is in the right place, you need to probate the Will. You can always attempt to renounce your inheritance, and ask the Court to divide the Estate evenly between you and your siblings. You should consult an attorney if you are faced with this situation.
My father left a Will leaving everything to his "lady friend". At the time my father wrote his Will, he was very ill, on pain medication, and had to be driven by his "lady friend" to the lawyer's office who drafted the Will. Is the Will valid?
Maybe or maybe not. To be a valid Will, it must meet certain requirements and must be his true last wishes. If your father lacked the ability to understand and appreciate the value and extent of his estate, or if he was unduly influenced by someone with whom he had a close relationship, you may be able to overturn the Will by contesting it Will in Court. You should seek the advice of an attorney immediately.
My mother died in 2009. She didn't have a Will. She was survived by my father and three children. Before mom died, our brother died. At the time of our brother's death, he was married with two children. Our brother died without a Will. How is our mother's estate divided?
Your mother's estate will divided as follows: Your dad will inherit 1/5, each of the surviving children will inherit 1/5, and the deceased brother's wife and two children will each split the deceased brother's 1/5 interest (each receiving a 1/15th interest).
This is the perfect example of why a Will is needed.
Can I make provision in my Will for my pets?
Yes. Pets are personal property. You may make provision as to who inherits them. However, you should not write a provision in your Will leaving any portion of your estate for the care and maintenance of your pets. If you are thinking along those lines, I would suggest leaving a cash bequest to a local animal shelter with a stipulation that they must house, feed, and provide necessary veterinary care for your pet as a condition of the bequest.
If I die owing debts, who pays my debts?
A part of estate proceedings is to provide notice to all known creditors and to publish in the newspaper a notice to all unknown creditors that they should file a claim against the estate if they are owed money. If they do file a claim against the estate, and there is sufficient assets to pay the debts, then the creditors will get paid from the estate. If there are insufficient assets to pay the debts, then the creditors may or may not get paid, depending on whether the debt is a secured or unsecured debt. Any creditor who does not file a claim against the estate does not get paid (unless the creditor is a secured creditor).
Real Estate FAQs
What are the three deeds used in Mississippi to convey real estate?
a) Warranty Deed - The Seller (Grantor) warrants to the Purchaser (Grantee) that the Seller has good marketable title to the real estate conveyed and will defend such title if someone disputes or claims title to the real estate.
b) Special Warranty Deed - The Seller (Grantor) warrants only that Seller (Grantor) has done nothing to affect the marketable title to the real estate conveyed. The Seller (Grantor) makes no warranty for the preceding owner's title.
c) Quitclaim Deed - The Seller (Grantor) conveys whatever interest he/she owns in the real estate to the Purchaser (Grantee). Seller is making no warranty to the Purchaser (Grantee).
What is a Deed of Trust?
A Deed of Trust is used to grant to the Bank or Mortgage Company (Lender) a lien on the real estate to secure Purchaser's indebtedness to Lender. A Deed of Trust is often called a Mortgage.
What is the difference between Owner's title insurance and Lender's title insurance?
An Owner's Title Insurance policy is an indemnity contract of insurance which insures the Purchaser's title to the real estate to be merchantable and without any title defects except for those exceptions specifically listed in the policy.
A Lender's Title Insurance policy is an indemnity contract of insurance which insures the Lender's Deed of Trust to be a first lien on the real estate subject only to certain exceptions approved by the Lender. It provides you no protection.
Why do I need an Attorney to represent me in a real estate sale and purchase?
For most people, the purchase of their home is the largest single monetary investment they will make. An Attorney can:
(a) review the sale and purchase contract to make sure you understand what is the actual agreement between Seller and Purchaser regarding the sale and purchase;
(b) ensure that you as Seller or Purchaser perform your obligations under the contract and that you understand what your obligations are under the contract;
(c) review the title report to determine that you are getting good and marketable title, free and clear of all liens except those you knowingly agree to; and
(d) review all closing documents and determine whether such documents accurately reflect what you agreed to do.
What is a Closing Statement (HUD-1)?
A Closing Statement is called a HUD-1 and shows the purchase price, the earnest money and all expenses of closing, both of the Seller and Purchaser. The HUD-1 also shows which expenses are being paid by the Seller and which are being paid by the Purchaser. The HUD-1 reflects the economics of the sale and purchase.
What is a Seller's Disclosure Statement?
Mississippi law requires a seller of residential real estate to provide the Purchaser a disclosure statement. This document specifically requires Seller to tell a Purchaser everything the Seller knows about the house and any known defects or problems. This document has to be prepared by the Seller and signed by the Seller.
What is an easement?
An easement is the right of one person to be able to utilize the property of another for a specific reason. For example, an ingress/egress easement is the right of one person to utilize the property of another in order to get from the road to their own land.