Just the Facts Newsletter - November 6, 2014 - Volume 1 Issue 1

LOWREY &
FORTNER P.A.

Education:

Doctor of Law (JD) - Mississippi College School of Law

Doctor of Jurisprudence - Mississippi College School of Law
Bachelor of science - University of Southern Mississippi

Education:

Just the Facts Newsletter - November 6, 2014 - Volume 1 Issue 1

Juris Doctorate - University of Mississippi School of Law

Bachelor of Arts - Tulane University

Divorce (1)
Child Custody (2)
Child Support (2)

Education:

Juris Doctorate - Tulane Law School

Bachelor of Science - University of Southern Mississippi

the leaving and that a willingness to renew the

relationship was refused by the deserting partner. However, if the deserting spouse makes a
good faith offer to return and the other spouse
refuses, the refusing party usually becomes the
deserter.

Education:

Juris Doctorate - Tulane University Law School

Bachelors of Arts - University of Southern Mississippi

The law considers marriage a civil contract in which

each party agrees to certain rights and obligations.
When a marriage fails, divorce is the judicial decree
which legally ends the relationship.
Mississippi law provides several legal methods for
a couple to divorce. A no-fault divorce occurs when
a couple agrees to divorce and to the settlement of
such issues as child custody and support, alimony,
and property division. If one spouse sues the other
to end the marriage, the plaintiff bases the suit on
one of the 12 divorce grounds allowed by state law,
and the court decides whether to grant the divorce.

LOWREY & FORTNER P.A.

525 CORINNE STREET
HATTIESBURG, MS 39401

CLIENT

Desertion is a spouses willful abandonment of

the marriage for at least one year without consent, just cause, excuse, or intention to return.
Desertion can occur under the same roof, if the
spouses live as strangers and the deserter intends to end the marriage. The deserted spouse
must demonstrate that he/she did not consent to

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Contents

Natural impotency, insanity or idiocy, and a

wifes pregnancy by another person at the time
of the marriage are pre-existing conditions
that are grounds for divorce in Mississippi. In
these cases, the innocent spouse must not have
known of the condition prior to the marriage.
Adultery, custody to the Mississippi Department of Corrections, incurable insanity that
develops after marriage, habitual drunkenness,
habitual and excessive drug use, and habitual
cruel and inhuman treatment are grounds for
divorce because of the impact those actions or
conditions have on the marriage. The grounds
of habitual drunkenness and habitual and excessive drug use require clear and convincing
evidence that the offending spouse is a habitual
drunk or drug user and such conduct has a negative impact on the marriage, rendering him or
her irresponsible, reckless, unfit, and unable to
perform marital duties and responsibilities.

Adoption (3)
Estate Planning (3)
Attorney Profiles (4)
Habitual cruel and inhuman treatment, the
most common fault ground, is conduct that
endangers life, limb, or health, or creates a
reasonable apprehension of such danger. It also
applies to conduct of such unnatural or infamous nature to make the marital relationship
revolting to the innocent spouse. To divorce
on these grounds, the spouse must prove such
conduct occurred over a period of time and
was physical in nature (i.e., beatings) or had an
adverse physical effect on him or her.
To file for divorce in Mississippi, you must be
a resident of the state for at least six months.
An irreconcilable differences divorce requires
a 60-day waiting period, assuming the spouses
resolve all issues within that time and the court
has approved the property settlement agreement. The other grounds have no particular
waiting period, but the other spouse must
receive notification at least 30 days prior to
trial. If the wife is pregnant when the divorce
is filed, the court usually postpones the case
until the child is born in order to address child
support issues. Divorce is a sad and emotional
process for all involved. Regardless of the
grounds for divorce, each spouse should have
an attorney to ensure that each persons rights
are upheld and best interests represented.

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Just the Facts Newsletter - November 6, 2014 - Volume 1 Issue 1

One of the most serious aspects in a divorce is child

custody. When a chancery court judge considers
custody issues, the overriding question is What is in the
best interest of the child?
Both parents have equal rights to the child, so a judge
considers several factors in custody matters. These
include the health and sex of the child, the primary
caregiver prior to the divorce, parenting skills and
willingness to care for the child, the emotional ties
between child and parent, and each parents moral
fitness.
Some factors that previously weighed heavily on
the judges decision are now balanced against other
considerations. Examples include the age of the child, a
parents employment that involves long absences from
home, immoral conduct of a parent, and differences
between the parents in financial position, religion,
personal values, and lifestyles. While any one may be a
strong reason to base the custody decision, judges must
look at the whole picture in determining what is in the
best interest of the child. One standard rule is to keep
siblings together.
A child age 12 or above may tell the judge his or her
preference for custody if the court considers both parents
fit. The judge, however, is not bound by the childs
preference.
A judge awards both physical and legal custody.
Physical custody is where the child actually lives. Legal
custody gives a parent the decision-making authority
concerning the childs health, education and welfare.
The judge may grant either or both custody designations
to both parents, one parent, or a third party. If one parent
receives physical and legal custody, the judge grants
visitation rights to the other parent, unless it is not in the
childs best interest.

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A third party receives custody only when the

court finds that it is in the best interest of the child
because of the parents abandonment, immorality,
mental problems, or other reasons harmful to the
child. Grandparents receive no special
consideration over other third parties in these cases,
but they may petition the court for visitation rights
in situations of divorce, termination of parental
rights, or the death of one of the parents.
Once ruled, a judge is reluctant to change custodial
rights because of the disruptive affect on the child.
For the judge to consider a change, the
non-custodial parent must prove a significant
change in circumstances has had an adverse impact
on the child.
If the custodial parent dies, the surviving parent
automatically receives custody unless a step-parent
or third party proves to the court that it is in the
best interest of the child that the natural parent not
have custody.

Legal cases involving money, divorce, or child

custody historically have been some of the most
painful and emotional in our courts of law. Child
support cases involve all three issues. Although
a large majority of child support cases involve
a fathers ability or willingness to pay support,
everyone pays a cost in this emotionally-charged
arena. Knowing the rights and responsibilities of
child support arrangements can help avoid
potential confrontations.
Parents facing child support obligations, whether as
a custodial parent or a supporting parent, should be
aware of Mississippis child support laws to protect

Just the Facts Newsletter - November 6, 2014 - Volume 1 Issue 1

Its never too early, or too late to start planning
your estate.

themselves and prepare for any potential changes

in their situation. Assuming the typical roles of
custodial mothers and supportive fathers, each
should be knowledgeable of several points of law.
State and federal laws consider paying child
support a serious responsibility. With only 69
percent of all child support awards actually paid
nationwide, federal and state governments have
aggressively stepped up their child support
enforcement efforts. A supportive parents
unwillingness to pay child support can result in a
wage withholding order against his/her salary or a
punishment of up to two years in jail. However, if
the supportive parent is destitute and unable to pay,
the court may not sanction him/her.
A parents responsibility for paying child support
is to the child, not to the ex-spouse. Therefore, a
change in marital status by the mother or father or
the birth of additional children in a second
marriage may not affect the original obligation.
In turn, a custodial parent cannot usually deny
visitation to the supportive parent for any reason,
including late support payments.
Child support responsibilities usually end when
the child turns 21 years of age, enters the military,
gets married, becomes self-supporting or is adopted
by a third party. A parent can seek a reduction in
his/her child support payments if his/her salary
decreases. Conversely, the court may order an
increase in child support payments if the supportive
parents salary increases substantially.
While awareness of the finer points of the law are
important, a mother and father should remember
above all that each has a moral responsibility to
their child. The law recognizes that just as both
mother and father were involved in the creation of
the child, both parents, even if apart, should
actively participate in the support and care of that
child.

When it comes time to plan where all of your

assets will go it is important to find an attorney
who will listen closely to your desires. At
Lowrey & Fortner P.A., our attorneys pride
themselves on the individual care and help
they give each client.
Your estate plan will include where you want
your land, home, business, employee benefits
and life insurance will go. You estate plan will
also outline the directions on your healthcare
wishes in case of your incapacity to do so
yourself.
Our law firm is experienced in:
-Simple and complex wills
-Probate litigation
-Probate administration
-Estate planning
-Durable powers of attorney and healthcare
directives
-Advance directives and living wills
-Living, irrevocable and charitable remainder trusts
-Asset protection
-Contested estate proceeding
-Interpretation of wills
-Will contest of invalid wills
-Undue influence and lack of capacity
-Eviction based on commercial lease
-Landlocked property
-Setting aside invalid deeds
-Breach of warranty deed
-Removing cloud on title

Inheritence:
In context of probate, the estate of a deceased
person consists of all the property, whether
real or personal, owned by the person at the
time of death. Assets that pass to somebody
else by operation of law (for example, property held on a joint tenancy basis), do not form
part of the deceased estate, even though the
person had rights to that property during his
or her lifetime. Also, if the deceased owned
life insurance and nominated a beneficiary of
the policy, the proceeds of that policy would
not pass into the deceaseds estate, but would
go directly to the nominated beneficiary.
Similarly, superannuation death benefits
can go directly to a deceaseds dependent,
bypassing the deceaseds estate. (See will and
intestacy) The estate of a deceased person is
administered by an executor (in the case of a
will) or administrator (in the case of intestacy).
The function of the executor and administrator
is to protect the assets of the estate, pay out
all expenses and the decedents liabilities and
distribute the balance in accordance with the
directions in the will. An estate (or decedent
estate) is a legal entity created as a result of a
persons death.
The estate consists of the real and/or personal
property of the deceased person. The estate
pays any debts owed by the decedent and distributes the balance of the estates assets to the
beneficiaries of the estate. An estate arises on
a persons death whether the person died with
or without a will.

Fee Simple:
Fee simple estates may be either fee simple
absolute or defeasible (i.e. subject to future
conditions) like fee simple determinable and
fee simple subject to condition subsequent;
this is the complex system of future interests
(q.v.) which allows concepts of trusts and
estates to elide into actuarial science through
the use of life contingencies.
Probate:
Receipt of probate is the first step in the
legal process of administering the estate of
a deceased person, resolving all claims and
distributing the deceased persons property under a will. A probate court (surrogate
court) decides the legal validity of a testators
(persons) will and grants its approval, also
known as granting probate, to the executor.
The probated will then becomes a legal instrument that may be enforced by the executor
in the law courts if necessary. A probate also
officially appoints the executor (or personal
representative), generally named in the will, as
having legal power to dispose of the testators
assets in the manner specified in the testators
will. However, through the probate process a
will may be contested.

Equitable Estates:
Superimposed on the legal estate and interests
in land, English courts also created equitable
interests over the same legal interests. These
obligations are called trusts which will be
enforceable in a court. A trustee is the person
who holds the legal title to property, while the
beneficiary is said to have an equitable interest
in the property.

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