Common Misconceptions in Family Law

error-102075_1920Many times we have clients call regarding a divorce and have common misconceptions because “that’s what they’ve heard.”

I’m filing for a no fault divorce. Mississippi is not a true “no fault” state. At this time, one party cannot file for a no fault divorce in Mississippi. Both parties may file for a divorce on Irreconcilable Differences, keyword “both” parties. This filing is usually a Joint Complaint for Divorce, which also requires that both parties have entered into an Agreement for the custody, support and maintenance of the minor child(ren) and the settlement of all property rights.

An affair means you can’t have custody. False. When determining custody, the Court relies on the Albright factors. Albright vs. Albright, 437 So. 2d 1003 (Miss 1983). One of the factos is the moral fitness of the parents, this is where the Court could consider any fault or misconduct on the parties. For a list of the factors, see Bowtielawyer.ms – Albright Factors.

The woman always get custody. False. Miss. Code Ann. §93-5-24(7) states: “There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.”

Once a child is twelve, he/she can decide where they want to live. This is simply not true. When making a custody determination the Court considers ALL of the Albright factors (see above). One of the factors includes the preference of the child over the age of 12, but this one factor alone does not carry the day. That being said, as a child reaches certain, more mature ages, the Court may be more inclined to adopt the child’s preference.

“Take you to the cleaners” Mississippi is an equitable distribution state. Equitable distribution does not mean 50/50, but it also does not mean 100/0. The court has laid out several factors known as the “Ferguson Factors” when it comes to equitable distribution. Ferguson vs. Ferguson, 639 So.2d 921, 928-9 (Miss. 1994). For a list of the factors, see Bowtielawyer.ms – Ferguson Factors.

Mississippi is not an alimony state. Mississippi is an alimony state. The court has laid out several factors known as the “Armstrong Factors” when determining whether or not alimony is appropriate. Armstrong vs. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993). For a list of factors, see Bowtielawyer.ms – Armstrong Factors.

It is important to note the Court has directed that alimony is to be used after an equitable distribution of the marital estate. If the court finds that the needs of both parties are met and there is no disparity with the distribution of the marital estate, the court does not consider alimony.

The man has to provide health insurance. False. At first I thought this was a joke, but I have heard it enough times to include it in this list. There is no authority that a male is required by law to provide health insurance. This usually comes up in child support issues. Miss. Code Ann. §43-19-101 (6) states:

(6) All orders involving support of minor children, as a matter of law, shall include reasonable medical support. Notice to the obligated parent’s employer that medical support has been ordered shall be on a form as prescribed by the Department of Human Services. In any case in which the support of any child is involved, the court shall make the following findings either on the record or in the judgment:

(a) The availability to all parties of health insurance coverage for the child(ren);

(b) The cost of health insurance coverage to all parties.

The court shall then make appropriate provisions in the judgment for the provision of health insurance coverage for the child(ren) in the manner that is in the best interests of the child(ren). If the court requires the custodial parent to obtain the coverage then its cost shall be taken into account in establishing the child support award. If the court determines that health insurance coverage is not available to any party or that it is not available to either party at a cost that is reasonable as compared to the income of the parties, then the court shall make specific findings as to such either on the record or in the judgment. In that event, the court shall make appropriate provisions in the judgment for the payment of medical expenses of the child(ren) in the absence of health insurance coverage.

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