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Stay Home Mom Divorce

What a Mississippi Stay at Home Mom Needs to Know About Divorce

You have been a stay at home mother for a while, maybe since before the birth of your first child—providing a nurturing home, caring for your children, and taking care of the family’s day to day needs. But now, going through a divorce or even considering one has thrown your already-busy mind into a frenzy of worry and doubt. Of the multitude of worries crossing your mind, three main ones stand out to you: First, what will happen to my children? Second, will I receive anything from the division of our property? Third, how will I get back on my feet? Don’t worry. We are here to calm your doubts and ease your mind by arming you with all the information you need moving forward. You came to the right place.

Custody and the “Continuity of Care” Factor

Your main priority is and always has been taking care of your beautiful children. You have had them day in and day out since the day they were born—and you can’t imagine not having them with you. You can breathe a little easier knowing this—your role a stay at home mom is a very valuable factor in your favor if there is a custody dispute. In Mississippi if couples cannot agree on custody, the chancellor makes the decision based on a set of factors commonly known as the Albright factors. One of those factors will weigh heavily in your favor as a stay at home mother—“Continuity of Care.” The continuity of care factor weighs in favor of the parent who provided primary care in the time period before and leading up to separation. Because you are a stay at home mom, it has been your job to be that primary caretaker. This means the Chancellor will most likely find the “Continuity of Care” Albright factor is in your favor. Although there is no explicit rule granting this specific factor any greater weight than the other Albright factors, it is often a determining factor in a Chancellor’s grant of custody. Let this be a huge relief to you knowing you have a very strong basis for being awarded primary custody if that is your goal. 

Property Division and the Presumption of Equal Contribution

Another huge concern weighing heavy on your mind is that you may receive little or nothing when the court divides the marital property. You may fear because you did not financially purchase much if any of the property, coupled with the fact it is mostly titled in your husband’s name, you will not receive anything. Take a sigh of relief, because this is a very common misconception. In the old days, Mississippi followed a title theory system when dividing marital property, meaning the spouse whose name the property was titled in was allowed to keep it. But those days are thankfully long gone. Today, Mississippi uses a method called equitable distribution—meaning the Chancellor will look to a set of factors to determine how the marital property should be fairly divided. Lawyers call these the Ferguson Factors. One of those factors is the spouse’s “contribution to the accumulation of marital property". The “contribution” of the spouse does not need to be financial contribution. By being a stay at home mom you have contributed to the accumulation of marital property by maintaining the homefront so your husband had the opportunity to work and earn for the family while still realizing the joys of children and your domestic contributions. Mississippi courts recognize your type of contribution as equal to your husband’s financial contribution. This means you are on equal footing with your husband when it comes to the Chancellor determining who contributed to the property.

Rehabilitative Alimony and Getting Back on Your Feet

For years you have stayed home to cook and clean and take care of your children, driving to soccer games and ballet recitals. While you have certainly had a demanding job indeed, you have been out of the actual work force and don’t even know if you remember how to operate in that environment. Maybe your professional certification has lapsed. This is terrifying to you because you are unsure how you will be able to jump back into that world and provide for your children as quickly as you may be forced to do. You have enough worries with the heartache and emotion of a divorce without adding the technical and financial concerns on top. We understand. And there is a tool the courts can and often do use to overcome this troublesome issue—it’s called Rehabilitative Alimony. Rehabilitative Alimony is support given from one spouse to the other, usually in cases just like yours, so the receiving spouse can get back on her feet and find a suitable job. Rehabilitative Alimony is an option for you and we are prepared to help you get the support you need financially to stabilize and rebuild your life so you can successfully provide for yourself and children.

We Can Help You

Here is the way this works. When you have some time to yourself, call our office at (601-898-8655) or confidentially submit a basic intake form so our staff can complete a standard conflict check. That’s when we make sure nothing on this end will stand in the way of our being helpful. Then, we will schedule a time for you to talk to one or more of our attorneys to go over your situation.

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FAQs related to Stay Home Mom Divorce

No, it is not necessary to catch your spouse in the act. Due to the secretive nature of affairs, Mississippi courts do not require direct proof to grant a divorce on the grounds of adultery. In order to prove a case for adultery, one must show that their spouse has had the inclination and opportunity to have an affair.

Yes.  You must have an agreement or a reason to divorce in Mississippi. This fact doesn’t just puzzle people faced with divorce; family law attorneys who practice in other states think it is bizarre as well. Mississippi is in a small minority of states viewing marriage through this lens. Notwithstanding an annual try by a few brave legislators, our state simply refuses to make it easier to get a divorce. Because proving a legal reason is often pretty difficult, it puts the more motivated spouse in a less leveraged position. Simply stated, whether or not grounds for divorce exist can create unjust outcomes.

No, a mother is not automatically entitled to physical custody of her children. This is a common misconception. Mothers and fathers have equal rights to their children under the law, and courts are not supposed to hold preconceived notions on the issue. Parents can either agree to a custody arrangement, or go to court and let the judge decide. A court’s determination of custody will rely on an analysis of the Albright factors, which are as follows:

  • Age, health and gender of the child.
  • Parent having continuity of care prior to the separation.
  • Parent with best parenting skills and willingness and capacity to provide primary child care.
  • Employment of the parent and responsibilities of that employment.
  • Physical and mental health and age of the parent.
  • Emotional ties of parent to child.
  • Moral fitness of the parent.
  • Home, school and coomunity record of the child.
  • Preference of the child at age sufficient to express a preference.
  • Stability of parent’s home environment and employment of each parent.
  • Relative financial situation of the parents.
  • Difference in religion of the parents.
  • Differences in personal values of the parents.
  • Differences in lifestyle of the parents.
  • Other factors relevant to the parent-child relationship.

In Mississippi, the value of a business or practice in a divorce is straightforward. According to the Mississippi Supreme Court, the value must be determined on a “fair market value” basis and the only approved valuation methodology is the Net Asset Approach, which calculates the value of the assets and liabilities with no entity or personal goodwill, but with appropriate discounts related to marketability and control. The valuation date is set by the Court. All of this appears simple. However, it can quickly become complex if a spouse owned a business or practice prior to the marriage, inherited a business, or acquired or sold a part or all of a business during the marriage. These events might lead to issues such as value appreciation, commingling of assets, or transmutation that must be carefully analyzed.  (Special thanks to Jim Koerber, CVA) 

In short, it depends. However, the absolute shortest amount of time that two individuals can get a divorce in Mississippi is sixty (60) days from the date that the Complaint for Divorce is filed. Realistically, irreconcilable differences cases take several months to complete, while a divorce on fault grounds can take up to and over a year. The length of time that the proceedings take are influenced by many outside factors that your lawyer will not be able to control, such as your spouse, your spouse’s lawyer, and the Judge’s schedule.

As with so many other questions regarding divorce, it depends. The cost of a divorce proceeding can vary from relatively inexpensive to extremely expensive, depending on the complexity of the issues involved in the case. In order to even estimate such an expense, it is necessary to have a consultation with a professional so that they can evaluate all of the circumstances involved in your situation.

Sometimes valuing property is very simple and can include merely looking to financial statements. Sometimes, however, it is more complicated and we must hire professionals to value the property. How property is valued is largely determined by the specific circumstances, but it is always valued at a fair market value—which means the price a willing buyer would pay the seller given the buyer knows all the details and circumstances surrounding the property.

No, in Mississippi it is not necessary to have a trial to obtain a divorce. In fact, the majority of Mississippi divorces are negotiated and settled outside of court. However, in order to obtain a divorce without a trial, the parties must agree to a divorce on the grounds of irreconcilable differences, which is our legal term for “no fault.”

Not necessarily. Fault is not specifically considered by the court, but each parties' contribution to the stability and harmony of the home is a Ferguson factor. In addition, if it is determined one spouse committed adultery, the cheating spouse should only receive ongoing support if they would be destitute without it. 

Maybe. One often used defense to adultery is “condonation.” Condonation is the forgiveness of a marital wrong. Condonation may be expressed or implied. Staying in the same home does not constitute condonation and does not act as a bar to a divorce being granted, but some older cases talk about how one act of sex may be considered “forgiveness.” However, even if a true condonation exists, it is conditioned on the offending spouse's continued good behavior and full knowledge of what is being forgiven. One cannot forgive what they do not know. If your spouse does not discontinue the affair, you still have grounds for divorce. In practical effect, condonation places your spouse on a form of temporary probation. So long as he observes the conditions on which the forgiveness rests, you do not have grounds for divorce. It is necessary also that the condonation be free and voluntary. If it is induced by fraud, fear or force, it is of no effect.

Until the entry of a court order, your rights following separation are the same as they were while you and your spouse were living together. This means you and your spouse enjoy the same equal rights to your home, personal property, and children as you did before. This is often the most chaotic period of the divorce process, so communication with your spouse, if possible, can be crucial. We like to call this the “storm before the calm.”

The Ferguson factors are the considerations derived from a leading Mississippi case that courts now use to determine how to fairly divide property. They are: (1) substantial contribution to property accumulation; (2) spousal use or disposition of assets and distribution by agreement; (3) market and emotional value of assets; (4) value of each spouse’s separate estate; (5) tax consequences and legal consequences to third parties; (6) the extent to which property division can eliminate the need for alimony; (7) the needs of each spouse; (8) other factors which should be considered in equity.

Glad you asked!  Our friend Branden Henry came up with a great list. We also have a larger list compiled from counselor friends you can download here.

There is actually no such thing as a “standard” visitation arrangement. Custody and visitation schedules are each unique, and can be structured around the families that will be living under them. Perhaps the most common situation is for the noncustodial parent to have visitation with their children every other weekend, with a night of visitation in the middle of the weeks in which they will not have weekend visitation. It is also common for parents to alternate holidays, and for each to have extended periods of time with the children in the summer.

An attorney the court appoints to represent the best interests of a child in a divorce or parental rights and responsibilities case.

Lump sum alimony is usually a one-time payment used to compensate one party who may not have benefitted as much as the other party during the process of equitable division of property.

Permanent alimony is what most people think of as the traditional type of alimony—monthly payments awarded to take the place of the support given during marriage. It terminates at the death of either party or when the recipient remarries. It can also be modified based on changed circumstances.

A parent who has physical custody of their children is the parent with which the children live most of the time. Typically, one parent will have physical custody of the children, while their former spouse will have rights to periods of visitation with the kids. It is possible for parents to share joint physical custody of the children. Under these circumstances, the children typically spend an equal amount of time with each parent.

 Rehabilitative alimony is a specific type of alimony used to keep one spouse “on their feet” after a divorce and while that spouse prepares to re-enter the workforce. It allows a spouse who may not have been working for a period of time during the marriage to have stability in order to adjust to working again.

Reimbursement alimony repays one spouse for the support he or she gave the other spouse during the marriage. Common examples of this include when one spouse worked and supported the other spouse through school.

Marital property is property obtained during the marriage, whereas non-marital property is property given to one spouse through gift or inheritance. It is important to remember that courts presume property is marital unless one party proves it is non-marital by showing the property was given to that spouse by specific gift or inheritance.

Your course of action should depend on your goal. If it is your desire to reconcile with your spouse and work on your marriage, then confronting him or her would be best. On the other hand, if reconciliation is not option, you may want to keep quiet and gather evidence. Cell phone and text messaging records typically speak volumes. Hiring a private investigator is also an option. While PI’s can be relatively costly, the results of their investigation can be quite valuable.

There is a misconception among Mississippians that a child may choose the parent with whom he or she wishes to live upon reaching the age of twelve. This is simply not the case. There must be a showing of material changes in circumstances since the last Order which have had an adverse affect on the child and that their best interest, coupled with the parental selection. While our law on this topic is well settled, many chancellors believe that if a child has made a choice, it should be honored. This is not the law.

The best way to think about how marital property is created is by determining whether any marital energy was used to earn income or grow the asset.  If you bring something into a marriage, or you receive it by gift or inheritance, you did not expend energy during your marriage to obtain it.  However, if you went to work everyday to earn income that resulted in the purchase of something, or you stayed at home and kept the children exerting energy while your spouse went to the office, those efforts result in the creation of marital property. 

Probably not. Most business interests in Mississippi are not easily sold.  To accomplish equitable distribution, all marital assets are considered, but not every asset is necessarily divided.  A business is the best example of this type of asset.  Courts routinely use lump sum alimony to balance each spouse's interest.   

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