Part of Real World Divorce: web edition | Kindle edition
Mark Chinn answered our questions about Mississippi law and customs. Practicing since 1978 this member of "Best Lawyers in America" currently represents a roughly equal mixture of male and female clients. Chinn goes to trial roughly three times per year. For us Chinn's most impressive achievements are that he got married in 1978, the same year that he started his career, and that is both an FAA-certificated pilot as well as a black belt in martial arts. See http://chinnlaw.com/us/mark-chinn/ for a detailed biography, including a substantial number of books and articles authored.
Mississippi is unusual among states in that it does not have a unilateral no-fault divorce process. It is possible to obtain a divorce for "irreconcilable differences" but you have to get your partner to agree. Whereas in most states it is possible to slap one's spouse with a divorce lawsuit complaint and be 100 percent sure of victory (i.e., getting a divorce even if the other person doesn't want it), in Mississippi you'd have to, at a minimum, convince a judge that you'd suffered "habitual cruel and inhuman treatment". Mississippi divorce judges can still inflict a lot of punishment on a spouse guilty of adultery or habitual drunkenness, for example, by awarding property, children, child support, and alimony to a plaintiff. But these faults must be proved by "clear and convincing evidence." In theory getting out of a marriage to a person whom you simply don't like will involve a negotiation in which you give up a lot of the rewards that would be due if that person were guilty of a fault.
Chinn is not a fan of the fault system and quotes a Supreme Court judge who said, regarding the need to negotiate with a spouse to obtain an irreconcilable differences divorce, "some people call it incentive, others call it blackmail." Chinn says "Mississippi should have a no-fault statute. Currently, 99 percent of the time if someone wants a divorce they get one anyway. People who don't have means are trapped more often."
One of the quirks of a system in which it is hard to get a divorce is that a married person can pursue a child support action without asking for a divorce. "In one of my first cases," says Chinn, "I successfully represented a woman who sued her husband for custody, child support, and to kick him out of the house."
Supposing that one's spouse does not agree to a divorce and/or one is hopes to obtain more from a judge than from voluntary negotiation, what does the process look like? "On average a case can be resolved within 9 months," says Chinn, "but it depends on the judge and the case and could be anywhere from 4 to 24 months."
As in many other states there is a temporary hearings process during which a divorce litigant can obtain the house, the kids, and a stream of cash flow. Are these evidentiary with witnesses testifying and being cross-examined? "It runs the gamut depending on the county," says Chinn. "It is a 'non-record hearing' and not appealable, which leaves judges open to handle them in however they choose. It is typical to limit the hearing to 30 or 60 minutes per side." Might the case essentially be over after one of these short hearings? "They are extremely significant," said Chinn, echoing the Massachusetts rule that "nothing is more permanent than a temporary order." Chinn notes that "It can have a huge impact on negotiation and the course of the case. In theory it should not be a harbinger of what is going to happen at the final hearing and the law does not provide for arguing at trial that the status quo from the temporary order should be maintained. However, it is hard to believe that judges don't look at that in practice."
Can one easily obtain sole use of the marital home in a temporary hearing? "It varies from judge to judge," says Chinn, "but typically the non-custodial parent gets kicked out." If a judge is not sufficiently sympathetic to a litigant's desire to enjoy sole use of the house can the domestic abuse system be invoked? "The protection from abuse process is there but not utilized a lot because normal chancery court or family court procedures allow for restraining orders." How common is the abuse angle? "The majority of cases have somebody complaining about how they were treated, but it is usually mental abuse. It isn't common to have physical abuse that is provable. People don't come into my office with pictures of injuries suffered after they've been beaten up."
Chinn says that consumers can reliably use the state-published child support guidelines to calculate child support. Confusingly, Mississippi uses the term "adjusted gross income" to mean "after-tax income" rather than the adjusted gross income field on the standard IRS 1040 form. Chinn notes that the guidelines go up only to an after-tax income of $100,000 per year. "When I represent someone who is making several million dollars per year," says Chinn, "I don't know what the child support will be." For lower incomes, the Mississippi formula is straightforward:
Note that these are dramatically smaller numbers than New York's 17 percent of pre-tax income, for example. The ADP paycheck calculator says that a single person would need to have a gross income of $150,000 per year to have an after-tax income of $100,000 per year. Thus the Mississippi child support obligation would be $14,000 per year compared to $25,500 in New York and $28,392 in Massachusetts. However, the Mississippi numbers are higher than Nevada (capped at roughly $13,000 per year) and not too different from California's ($14,808 if the child is with the paying parent one third of the time). A Mississippi child has a much higher cash value than a child in Denmark or Germany.
Child support in Mississippi terminates on a child's 21st birthday, even if the child is disabled. Since the 1970 Pace v. Pace case, according to Chinn, a court has the power to order a parent to pay for college costs, but not after age 21. Chinn says that most parents are able to come to an agreement voluntarily to share college costs past age 21. Can a victorious child support plaintiff, as in Massachusetts, collect child support even when the defendant has been ordered to pay for 100 percent of college tuition, room, and board? "The law allows a suspension or reduction in child support once a parent is paying room and board at college," says Chinn. "Child support payments to the other parent are typically cut in half."
According to Chinn, "it depends on the judge but a lot of times child care and health insurance will be added on top of the guideline child support amount."
Can parties enter into a "walk-away" prenuptial agreement? "Premarital agreements are valid and enforceable," says Chinn. "There is no real problem drafting and enforcing them. If you come into court with a well-done understandable agreement it will likely be forced. People can waive alimony and also keep property separate. Every agreement is examined under the following four factors: (1) financial disclosure, (2) representation, (3) fairness, (4) fraud or duress."
The average hourly wage in Mississippi is $16.98 per hour. A person who goes to college at the University of Mississippi will spend approximately $66,728 over four years to earn a bachelor's degree. Census 2014 data show that median income for a 22-36-year-old woman working full time is $25,000 ($19,759 after tax). The corresponding man earns $38,670 ($29,649 after taxes). The Tax Foundation in 2016 concluded that $100 has more spending power in Mississippi than in any state, being worth about what $115 would buy in the average American community (Citizens of California, New York, New Jersey, and D.C. fare the worst, with $100 being worth only $85-89). Mississippi collects 8.6 percent of residents' income in order to fund state and local government compared to the national average rate of 9.9 percent, once again according to the Tax Foundation.
The average annual cost of child care is $4,591 for an infant, $3,911 for a four-year-old, and $1,954 for a school-age child. Thus the total cost of child care from age 0 through 12 is $25,018 in commercial settings or $26,710 in a family care setting.
The male college graduate will have an after-tax spending power of $437,305 after 17 years of working (17 years of income minus taxes and the cost of college). Considering the USDA-estimated cost of a child, he would be financially better off collecting child support than working when that support is $2,485 per month or more. Running the 14 percent Mississippi guideline in reverse, this would require suing a mother with an after-tax income of $213,000 per year. If he can get custody of two children from two different mothers, each needs to pay him $1,510 per month before he is better off financially than if he had gone to college and worked. That happens when each mother earns at least $129,429 per year after taxes.
The female college graduate will have an after-tax spending power of $269,175 over the same time period. She would be better off collecting child support when it exceeds $1,818 per month, corresponding to suing a defendant with after-tax income of $155,829 per year. If she gets custody of two children from two different fathers, she comes out ahead financially, compared to college/work, if each father earns at least $110,057 per year after taxes.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
If the mother can show that the nanny did the hands-on work, Chinn expected this mother to win primary physical custody. "Joint custody is relatively uncommon [in Mississippi]," Chinn explained, "because a lot of judges say 'I feel like I need one person to look to for responsibility.' Joint legal custody, on the other hand, is the rule rather than the exception. You have to show that a parent is not participating in order to get sole legal custody." Unlike in some other states, the father's affair may matter for determining custody. "The Albright factors must be considered in every custody case. 'Moral fitness of the parent' is one of the factors," says Chinn.
How about child support? "He will pay the full amount of child support to her if it is just every other weekend," Chinn says. "If he takes care of the children 30 percent of the time, maybe he wouldn't pay anything. Courts are given wide discretion to do what is fair." What if the father could get 50/50 custody, could he begin collecting child support from the high-income mother? "More than likely she wouldn't owe him anything," Chinn says. How is that possible? In Massachusetts, a non-working parent could collect full child support as soon as at least 50 percent custody was obtained (for this surgeon it could be $45,000 per year or more, tax-free). What if the sexes were reversed here and the high earning doctor were a man? Would he have to pay the low-income woman in a 50/50 custody situation? "Probably," said Chinn.
If the parenting time schedule starts out unequal could the father work his way up to 50/50 custody eventually? "To change an order you have to show a substantial adverse change in circumstances that adversely affects the child," says Chinn. At what age could the child's preferences be taken into account? "The custody statute gives a child a right at age 12 to state a preference, but the judge would also have to find that substantial adverse change in circumstances to order a new plan."
Chinn has an unusual value-based pricing method, similar to what we found with Richard Victor in Michigan, and does not charge by the hour. He says that "My experience with high quality lawyers [in Mississippi] is that their rates will be $250-400/hour. The average cost to litigate a divorce through trial would be $150,000." Given that he has minimal income can this defendant father get the plaintiff mother to pay his fees? "The court can award attorney's fees to a prevailing party if the judge feels that the party did not have the ability to pay," responded Chinn, "but I do not see too many fee awards. When I do see them it is usually just a fraction of what it cost. The spirit in Mississippi is that people should not be discouraged from pursuing litigation by the threat that they will get hit with attorney's fees. He will probably have a lower cost lawyer than she and therefore be outgunned."
Chinn predicted that the father would not get alimony from the mother and that his opportunity to profit from a property division was limited: "All assets accumulated during the marriage are marital property. The starting presumption is that each party contributed equally no matter what they might have earned. Then the court has to determine several factors to decide whether or not this presumption applies. Here the guy starts out with a 50 percent presumption. The wife argues that he did not contribute to peace and harmony of the marriage, citing the adultery. In a serious case of adultery or non-contribution, his share could be as little as 25-30 percent."
What about investments that the doctor had before the marriage? "There are two basic ways to look at appreciation of non-marital assets: Passive versus active," says Chinn. "Stock portfolio movement with the market would be considered passive. If she comes into the marriage with a medical practice or other business and through her efforts increases the value, that is an active increase and subject to division."
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
"The court would order a 50/50 arrangement," says Chinn. What about the conflict that other states would use to block equal parenting time? "You can not get along with every other weekend just as much as week-on, week-off. The judge may award legal custody to just one parent, however."
Due to the equal incomes there would be no child support or alimony in this case.
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
Could the stay-at-home parent argue that she wanted to preserve the "status quo" of being a stay-at-home parent with a sufficiently large stream of court-ordered cash? Chinn says "yes." The mother here will get the children, child support, and "10 years of rehabilitative alimony if not permanent." What's the justification for a court-ordered involuntary continuation of what had been a voluntary arrangement? "That's the lifestyle they set up. The court would look at what they have been spending, at what are reasonable expenses for him and reasonable expenses for her. The might ask her to shave back some of her expenses in order for him to survive. The duration and amount of alimony are totally discretionary with the judge."
If it is all about pre-divorce lifestyle does that mean pre-divorce preparation would be helpful for her? "There is no question that spending more on lifestyle is helpful and that it is done," responded Chinn. "But a party has to be careful so that the judge doesn't detect it." In Chinn's opinion, the most significant element of pre-divorce planning by a future alimony plaintiff is not taking a job.
What kind of child support can she get? The ADP paycheck calculator shows that the doctor filing single would have a net pay of $175,733 per year. The plaintiff would get 20 percent of that for two children or $35,146 per year. Alimony would be whatever additional was necessary to enable the mother to continue her pre-marital lifestyle.
How about property division? "There is a presumption that the custodial parent gets the house," says Chinn, "but that doesn't affect the equitable distribution. The value of the house still goes on the spreadsheet and is divided equally." What about the doctor's practice? "Because of the Singly case, businesses can only be valued using an asset-based approach," responded Chinn. "A medical or law practice thus has very little value. Good will cannot be considered, according to case law, because it is based primarily on future effort and therefore should be handled through alimony."
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
Chinn predicts that due to the young age of the child and the mother here having taken on the traditional task of infant care, the mother has a slam-dunk case for primary parenthood and that she can retain that through age 21. This will entitle her to 14 percent of the father's income (about $24,603 per year, tax-free, on his earned income, plus a share of the investment income), but not much else. "She could get 50 percent of appreciated assets," Chinn said, "but even there she could suffer due to the possibility of being perceived as a 25-year-old golddigger."
What would the child's schedule look like? "The woman would argue that he should not have the child overnight," Chinn responded. "But a lot of judges don't buy that and would award the father every other weekend, Friday at 5 pm to Sunday at 5 pm. There could be a night on the off-week as well but it would be no more than 3 out of 14 nights." Might the court-ordered schedule have built-in adjustments as the child ages? "I don't see that very often," says Chinn, noting that for older children "where it looks like the father is very involved the court might award Thursday afternoon to Monday morning, which means that exchanges will be at school and it limits the potential for friction between the parents due to someone being late."
Due to the short length of the marriage she cannot get alimony.
What about the $2 million? If the assets are not invested in a way that produce current dividends, can she still get a share through child support? "I haven't seen an argument about imputing income to an investment portfolio but I would make it given the amount of money involved [if invested without yield]," says Chinn. "Separate property does come in via his ability to make alimony or child support payments."
Note that with Mississippi's simple percentage-based formula, this mother's best chance for wealth is inflation. If inflation were at 20 percent, for example, the $2 million would be earning at least 20 percent even in a tax-exempt bond fund. Thus, assuming that a judge extrapolates beyond the top of the guidelines, she might collect an additional $56,000 per year in child support compared to a no-inflation environment.
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
Chinn notes that the woman in this scenario need not hire an attorney: "She can go to the [state] DHS to get paternity and child support but not for custody and visitation." The mother will have the same entitled to 14 percent of the man's income as if they had been married. What about his entitlement to visitation? "If he hasn't been involved in the child's life he is prejudiced in an attempt to get parenting time," says Chinn. What if the reason that he wasn't involved is that the mother didn't tell him about the child's existence? "He is still prejudiced."
How long can the mother wait and still get child support back to the date of birth? "The statute only allows retroactive support for one year," says Chinn, "though the child might have until age 27 to bring a support claim. The mother can also get medical expenses and some attorney's fees."
What if the mother marries a high-income partner? "That won't have any effect on her child support entitlement," says Chinn.
As in other states, Mississippi provides cash incentives to have children with multiple co-parents. Three children from one co-parent are worth 22 percent of that parent's after-tax income. If, on the other hand, three different co-parents can be found, each with the same income, a total of 42 percent (3 times 14) of that income level can be obtained.
As in other states, multiple children from the same child support defendant have different cash values depending on when the corresponding lawsuits are filed and child support orders obtained. The first person to sue a parent gets the full 14 percent. For subsequent plaintiffs, any previous child support orders are subtracted from income used to apply the next 14 percent rake. The language of the statute says "If the absent parent is subject to an existing court order for another child or children, subtract the amount of that court-ordered support;", referring to the person paying child support as "absent".
Unlike many other states, Mississippi does not give child support plaintiffs complete priority over children whose parents have not sued a defendant. From the statute: "If the absent parent is also the parent of another child or other children residing with him, then the court may subtract an amount that it deems appropriate to account for the needs of said child or children;". (Note that the person being sued is again "the absent parent" and is presumed to be a "him".)
Chinn expects changes in the law due to "gay marriage and gay issues." He says that the most compelling need is for more clarity on interstate issues. As noted in other chapters, oftentimes obtaining jurisdiction in another state can mean the difference between ending up as a 50/50 parent or an every-other-weekend aunt or uncle. With the same parenting time plan, a child might yield $0 in profit in one state, $2 million in another, and $20 million in a third. "If you're representing your client well you have to look at the interstate issues," says Chinn.
Aside from a no-fault statute as described above, what would Chinn like to see changed? "I would like to see reductions in delay. Get judges to seize control of docket as federal judges do. Put everything on a schedule. Dispose of frivolous matters quickly."
Mississippi falls more or less squarely into the "Preserve the status quo" category among states.
Mississippi's emphasis on identifying who was the primary parent during the marriage punishes people who enter into a voluntary arrangement of breadwinner and stay-at-home parent, even if that arrangement lasts only a year or two.
If research psychologists are correct that the importance of each parent waxes and wanes over time, the rigidity of Mississippi's custody and parenting time arrangements means that children cannot get the benefit of time with the parent who can help them the most at various ages (see the perspective from psychology professor Linda Nielsen in the "Guide for Citizens and Legislators" chapter).
Mississippi's uncapped child support guidelines and payments that are guaranteed through age 21 mean that a casual encounter with a high-income professional will almost certainly be more lucrative than attending college and working. The rewards may be higher in Massachusetts or New York, but those states also have a higher cost of living.