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Jeremey McNinch

Divorce Center

Divorce in Mississippi
www.divorce.ms


The General Framework

Getting a divorce in Mississippi is not easy.  Contrary to a very common misconception, a person can’t simply file for divorce and expect to get one just because they want it.  A spouse is not required to give the other spouse a divorce.  Unfortunately, it’s that simple.

The Mississippi Code allows divorce in one of two situations:  (1) if there is a reason under Mississippi Code Annotated Section 93-5-1 or (2) the spouses agree to divorce.  The first scenario is known as “fault based”, or “contested” divorce, while the second is commonly referred to as “Irreconcilable Differences”, “I.D.”, or “no-fault” divorce.  The first step in the legal process, whether in a fault or ID case, is the filing of a Complaint with the proper Chancery Court.  The 60-day statutory time clock for an ID divorce is triggered when an ID Complaint for Divorce is filed,  as discussed in more detail later.


Divorce for a Reason:  Fault Based Grounds

There are twelve “reasons”, or fault-based grounds, for divorce, including adultery, desertion for the space of one year, and habitual cruel and inhuman treatment.  Other fault-based grounds for divorce include:

  • Sentencing to any penitentiary
  • Habitual drunkenness
  • Habitual use of opium, morphine, or other like drug
  • Mental illness or an intellectual disability at the time of marriage
  • Marriage to another at the time of the purported marriage
  • Pregnancy of the wife by another person at the time of the marriage
  • Relation within the prohibited degrees of kinship (incestuous relationships)
  • Incurable mental illness

Fault-based grounds for divorce, with a few exceptions, must be proven by clear and convincing evidence.  This standard of proof is the highest known under Mississippi civil law.

If a fault-based divorce is sought, the case will proceed just like any other lawsuit. In other words, the parties will probably engage in discovery – written questions and possibly depositions – and a trial in open court.  The process is tedious, inefficient, and expensive.  The fault-based divorce statute appears below in the Divorce Center resources section.


Divorce by Agreement:  Irreconcilable Differences

If spouses agree, in writing, that they want a divorce, they can get one based on Irreconcilable Differences. See Mississippi Code Annotated Section 93-5-2.  A request for an ID divorce is almost always made, even when one party believes the other has committed marital fault, such as adultery.  That way, if an out-of-court settlement is reached, the court pleadings are in proper order, and no amendment will be required.  That saves time and money.

A complaint for divorce based on Irreconcilable Differences must be on file for sixty (60) days before the Judgment is entered.  Therefore, it is impossible to get a divorce based on Irreconcilable Differences before 60 days have gone by after the Complaint is filed.  (Note that this statutory “waiting period” is not applicable to fault-based divorces, but getting a divorce based on a fault ground within thirty days of filing is a rare occurrence for many reasons.)

If the parties agree, in principle, to get a divorce based on Irreconcilable Differences, they can – and should – attempt to negotiate a settlement of all issues relating to the children and the finances of the marriage.  If an agreement is reached, it is reduced to writing in a Child Custody and Property Settlement Agreement, or if no children are involved, a Property Settlement Agreement.  The Chancellor reviews the proposed settlement, and if it makes adequate provision for the children and for the final settlement of the parties’ assets and debts, the agreement will become part of a Final Judgment of Divorce, which is the legal document that ends the marital relationship.  When someone says “divorce papers”, this usually is the document they are referencing.

If the parties can’t settle the case on their own, alternative dispute resolution, usually mediation, is sometimes used.  Mediation is an agreed upon meeting between the parties, attorneys, and a specially trained third party (usually an attorney) with the specific goal of settling the case out of court.  The discussions are confidential and nothing is binding unless a written settlement agreement is executed by the parties.  Mediation can be very effective.

The court can be asked to decide all the issues in an Irreconcilable Differences divorce, if the parties can’t settle out of court.  In other words, parties can simply agree to get a divorce and the judge will decide all the issues.  Under this scenario, neither party has to prove the other was “at fault” to get a divorce.  Instead, they agree to end the marriage, and the judge decides what it looks like.


Legal Effects of Divorce

Divorce “severs the bonds of lawful matrimony”, allowing the former spouses to marry other people.  The Final Judgment of Divorce addresses issues relating to children, including custody, support, and visitation.  Other financial issues regarding the children, including which parent pays for health insurance, uncovered medical expenses, which parent enjoys the tax exemption for the children, and the like, are also decided.  Marital property is identified, and the fair market value of those assets is determined.  Based on the Ferguson factors, marital property is then divided.  Debts of the marriage may be allocated among the parties.  Divorce Judgments frequently direct one spouse to pay spousal support, or alimony, to the other party.  Divorces revoke the former spouses’ rights to inherit from each other.

Once a divorce is granted, the law prefers that the parties become disentangled as soon as possible.  Due to the personal and economic realities of modern life, however, that can’t always happen immediately, which sometimes leads to problems after divorce.


Child Custody, Visitation, and Support

In a divorce involving children, issues relating to them are probably the most difficult to resolve.  These issues include custody, support, and visitation, among others.

There are two kinds of “custody” – physical and legal.  Physical custody refers to the right of a parent to physically have a child with him or her.  On the other hand, legal custody is the right of a parent to make decisions on behalf of a child.  Custody is awarded based on the best interests of the child.

Custodial arrangements can be primary or joint.  For example, a parent can have primary physical custody, meaning they have the right to have the child, except when the other parent has visitation.  Physical custody can also be joint, meaning the child stays with each parent roughly the same amount of time.  Legal custody can also be vested in one of the parents alone, meaning one parent has “primary” legal custody; legal custody can be granted jointly, as well.  There are too many pros and cons to each of these arrangements to discuss here, but the point to take away is there are many possible scenarios, and what is right for another family might not be right for your family.  In the end, all families are different, and what works for each one is probably different, too. Take a look at Mississippi Code Annotated Section 93-5-24, a copy of which appears below in the resources section.

Like custodial arrangements, the “correct” visitation arrangement varies from family to family.  We write custom visitation schedules all the time, and there is no such thing as standard visitation, no matter what you have heard.  It is true that a particular judge might frequently award the same type of visitation, but there is no statute out there dictating that they do so.  It is simply a matter of convenience.  Check out our resources to see an example visitation schedule.  The child’s best interests govern a court’s decision on visitation, as well.

Child support is governed by Mississippi Code Annotated Section 43-19-101, and the amount is determined based on the adjusted gross income of the absent parent.  The court first determines the parent’s adjusted gross income, as defined in the statute, and applies a statutory percentage to determine the monthly payment.  The following percentages are set by statute, for some parents, based on the number of children:  1 – 14%; 2 – 20%; 3 – 22%; 4 – 24%; 5 or more – 26%.  If the absent parent’s AGI is less than $5,000 per year or more than $50,000 per year, the statutory percentages do not necessarily apply; the percentage applied by the court could be more or less than those set by statute.


Property Division

At one time, Mississippi based property division on whose name was associated with a particular piece of property.  For example, if a husband purchased an acre of land in his own name during the marriage, that property was given to him upon divorce.  As can be imagined, this led to very inequitable results upon divorce in many instances, especially if one of the spouses was a homemaker and had no source of income.  This old “title system” was abolished by the Mississippi Supreme Court opinion, Ferguson v. Ferguson, which appears below in the Divorce Center resources.  This very, very important opinion adopted a new system of property division called “Equitable Distribution.”

The same day, the court also adopted a rule in the Hemsley v. Hemsley opinion making clear that efforts of a non-breadwinning spouse are valued equally with those of a breadwinning spouse.  In other words, in general, if a spouse stays at home, cares for the family, and doesn’t earn a paycheck, his or her efforts will be considered equal in value to those efforts of the spouse who works outside the home and earns a paycheck.  These cases also make clear that all property accumulated or acquired during the marriage is assumed to be marital.  If one of the spouses asserts that property is not divisible, i.e., it is “separate property”, the burden is on them to prove the property is not martial.  Generally, for the purposes of accumulating marital property, the time period runs from the date of marriage until the final judgment of divorce.  The Hemsley opinion is provided below in the resources section.

Finally, it should be noted that equitable distribution is not the same as equal distribution.  Some states subscribe to the “community property” theory, in which each spouse is entitled to a one-half, undivided interest in the property of the marriage.  Mississippi, however, divides property based on fairness, or equity.

The Ferguson and Hemsley opinions have been revised slightly over the years, but they form the foundation on which Mississippi property division principles are based.


Alimony

Although there can be slight variations and hybrid forms, Mississippi law acknowledges four types of alimony, in general:  (1) periodic, or permanent; (2) lump-sum; (3) rehabilitative; and (4) reimbursement.  All four have different uses, but typically, alimony and property division go hand in hand.  That is, where one increases, the other must recede.  If property division results in a deficiency to one of the spouses, the spouse with the deficiency can be awarded alimony to equalize the deficit.  Advice from a trained professional should be obtained about anything relating to taxes, but alimony payments can be viewed as taxable to the recipient and deductible to the ex-spouse making the payments.

Periodic or permanent alimony terminates upon the remarriage of the person receiving the payments or the death of the paying party, and it is generally modifiable upon a showing of material change in circumstances of the paying party.  Permanent alimony is typically made in payments.  If it is unclear from the Judgment what kind of alimony was intended, the presumption is that the award was for periodic alimony.  See below in the Divorce Center resources for a copy of Armstrong v. Armstrong, which provides more information on this type of alimony.

Lump sum alimony, on the other hand, is not modifiable and is viewed as a final settlement; it is vested when the final judgment is entered; and it becomes an obligation of the estate of the paying spouse if he or she dies before the obligation is paid in full.  Lump sum alimony can also be made in payments or over a certain amount of time, or it can be made in a “lump sum” payment.  See below for a copy of Mosley v. Mosley, a case in which lump sum alimony was awarded.

Rehabilitative alimony, sometimes known as “periodic transitional alimony” is intended to assist one of the spouses in becoming self-supporting, or getting back on their feet, after a divorce.  This form of alimony is a hybrid of the periodic and lump sum alimony forms, in that it is for a fixed period of time (like lump sum), but it is modifiable (like periodic). Hubbard v. Hubbard, provided in the Divorce Center resources below, explains rehabilitative alimony.

Like most states, Mississippi does not view a professional degree as marital property, the value of which is divisible upon divorce.  Reimbursement alimony can be paid to a spouse if it can be established that he or she paid for the other spouse’s college or professional education during the marriage.  See Guy v. Guy in the Divorce Center resources below for more on this idea.


Jurisdiction and Procedure

The Mississippi Chancery Court has exclusive jurisdiction over divorces.  There is a Chancery Court in each of Mississippi’s eighty-two counties, although some Chancery Court districts are made up of several counties, and the judges of the district rotate between counties.  When a divorce action is filed, it is just like any other lawsuit in Chancery Court, for the most part.  There are several special rules for divorces, but in general, the same procedural rules apply to all civil actions in Chancery Court.  If a divorce case is not settled, it will culminate in a trial in open court.  There is no right to a jury trial in a divorce case.  Instead, the trial is held before a Chancery Court Judge, or Chancellor.

In any case involving financial issues or property division, the parties must complete a Rule 8.05 Financial Statement, which is a personal financial statement that outlines a party’s income, expenses, and assets.  This is a very important document that should be completed with care.  Uniform Chancery Court rule 8.05 appears in the resources below, along with an example financial statement.


Personal Considerations

The decision to proceed with divorce is obviously very, very personal, and it is sometimes wise to consult with one’s pastor, family members, and/or a professional counselor when making the decision.  We make referrals to trusted faith-based and secular counselors frequently.  If you need one, please give us a call for a referral.


Our Reality

Divorce cases make up a large part of what we do, and we know from firsthand experience the toll they can take on families.  Even though divorce is a part of our culture, we don’t advocate it, and we don’t like the idea of breaking up relationships.  But we understand that, sometimes, people just need to be divorced, and they need compassionate people to give them advice.  Jeremy has handled divorces ranging from complicated, high profile, high asset cases to simple, straightforward Irreconcilable Differences cases where the parties just decided marriage wasn’t for them.


Frequently Asked Questions about Divorce

1.  Will I be forced to pay the other side’s attorney’s fees?  Possibly, depending on the facts and type of your case. For example, in a contested divorce case, the question is whether the party requesting their fees has the ability to pay them without assistance. In contrast, if a party is found in contempt of a judgment or order of the court, there may be a better chance the party will be ordered to pay the opposing party’s fees, regardless of whether inability to pay is established.

2.  Does MS have “no-fault” divorce? It depends on what your definition of the phrase, “no fault” is. In Mississippi, a party can get an Irreconcilable Differences divorce, but the other party must agree to get a divorce.  Take a look at the Mississippi Divorce page for more details.

3.  Is it true that my spouse can refuse to give me a divorce? Yes.

4.  Can my spouse insist on a transfer of property in exchange for their agreement to give me a divorce? Yes.

5.  Is alimony automatic in Mississippi? No.

6.  Why does it cost so much to get a divorce even if I don’t have much property to divide and I don’t have kids? The price an attorney charges to do your divorce depends on many things which are individual to the attorney with whom you are talking. Our firm quotes prices based on complexity of the facts and laws unique to each case, plus a prediction, based on previous experience, of the amount of work required on the case.

7.  Is adultery a crime in MS? Acts of repeated adultery can be prosecuted.

8.  My spouse just got a professional degree and told me she wants a divorce. Is the value of her degree marital property? Probably not, but if you contributed to the expenses of her education, including living expenses, you might be entitled to reimbursement alimony.

9.  What is mediation?  Mediation is a form of “alternative dispute resolution.”  In general, it is an agreed-upon effort to settle a case out of court, conducted by a trained professional.  The results of mediation are not binding unless they are agreed upon in a written settlement agreement.

10.  Does mediation work?  Mediation can be very, very effective, and it is generally worth the effort, especially if settlement negotiations are at an impasse.

11.  How long will my case take to get finished?  It is impossible to say how long your case will take.  There are some general guidelines of how quickly it can be completed, but they do not dictate when a case must be finished.  An Irreconcilable Differences divorce can be granted 60 days after the Complaint is filed with the Chancery Court.  That does not mean your ID divorce will be granted in 60 days, however.  Other matters, like modifications of Judgments, contempt of court actions, requests for temporary relief in divorce cases, and others can be taken to court more quickly, under Mississippi Rule of Civil Procedure 81, but there is no guarantee the court will have a place on its docket for your case within the time frame(s) stated in the rule.  Except for certain kinds of actions, the court’s docket is set on a first-come, first-served basis.  The point is, your attorney generally cannot control how long a case will take because he or she has no control over (1) the court’s docket; (2) what the opposing party will do; or (3) what the opposing attorney will do.  All of those things can make a case drag on and the cost of your case go up, so patience is absolutely necessary when you are involved in a family law case.

12.  Can I take the Fifth Amendment if I am asked to admit that I committed adultery?  It depends on how the question is phrased, but because “unlawful cohabitation” is a crime in Mississippi, a party might be entitled to “take the Fifth” and invoke the constitutionally-guaranteed right against self incrimination when asked about the commission of adultery.

13.  My neighbor said she got everything she wanted in her divorce, and her lawyer really took her husband to the cleaners.  Can you guarantee you can do this for me?  We will work diligently to get everything clients want, but, unfortunately, we can’t guarantee we will be successful.

14.  How does a court decide child custody?  The most important consideration in a custody case is the best interests of the child.  The Mississippi Supreme Court set forth a test to assist judges in child custody cases in Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).  Those factors include the following:  (1) the age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parents and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship.

15.  What are the advantages of going to court as opposed to trying to settle?  Keep in mind that family law settlements are contracts, negotiated like any others, except they involve much more personal subjects.  In some cases, if the other side of a dispute isn’t interested in settling a case, then it doesn’t make sense to spend a lot of time making settlement offers.  Sometimes, like when the parties can’t agree on anything, going to court is the only option.  Like the old saying goes, “that’s why they make courthouses.”  But, if all parties are interested in settling out of court, working hard to negotiate a settlement sometimes makes sense.  Again, many people believe that, even if they can’t get everything they want in their case, an agreement is better than taking a chance on what a judge will decide based on a limited snapshot of the facts, which is what a trial is, in the end.

16.  If my spouse doesn’t agree to an irreconcilable differences divorce, what can I do to get divorced?  Unfortunately, absent an agreement to proceed on irreconcilable differences, a divorce can be granted in Mississippi only if one of the spouses has a reason listed in Mississippi Code Annotated Section 93-5-1.

17.  My spouse and I agree that we want a divorce, but we can’t agree who gets custody of the kids or who gets our property.  Can we still get a divorce if we don’t have a fault-based ground? Absolutely.  Mississippi Code Annotated Section 93-5-2 allows parties to submit some, or all, of the issues to a court to decide when the only agreement is to get a divorce.

18.  My husband ran up a ton of credit card debt, and he has terrible credit.  Will my credit be affected because he has failed to pay his bills on time?  Will I be responsible for these debts if we get a divorce?  Not necessarily.  In general, prior to divorce, a married person’s obligation to pay debts is governed by the contract between that person and the creditor.  Sometimes, spouses have joint debts and they agree that one of them is responsible for making the payments each month. If the spouse fails to pay, then the other spouse’s credit could be affected, due to the joint obligation under the contract creating the debt.  In some situations, debts are in one spouse’s name and they were incurred for marital purposes, like paying for groceries, day care, vacations, medical expenses, etc.  Upon divorce, the court might order both parties, to pay the debts jointly after the divorce.

19.  My husband has worked our entire marriage, and I have stayed home to be with the children and take care of our family.  All of our assets are in his name.  If we get a divorce, will I be left with nothing? Probably not. Mississippi law views the contribution of spouses who work inside the home, as homemakers, as being equal to that of spouses who work outside the home and earn money.

20.  Am I automatically entitled to one-half of my spouse’s assets at divorce?  Not automatically.  In Mississippi, marital property is equitably divided, using factors set forth by the Mississippi Supreme Court in Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994), which appears below in the Divorce Center resources.  It could be that spouses agree to equally divide assets in an Irreconcilable Differences settlement, or that a judge orders an equal division of assets, but equitable division does not necessarily mean equal division.  Community property states, like Louisiana and California, on the other hand, view the marriage relationship as a “community” and each spouse is assumed to have a one-half, undivided interest in all the property of the community.  That property is divided equally upon divorce.

21. Am I required to catch my spouse in the act to prove adultery?  No.  In general, direct evidence of adultery, like testimony, photos, or video, is the best evidence, but circumstantial proof can also be sufficient.  To prove adultery circumstantially, the plaintiff must show (1) adulterous nature (infatuation or a proclivity to adultery) and (2) reasonable opportunity to satisfy proclivity or infatuation.

22.  I am being sued for divorce.  I want to sue my spouse for divorce, too.   Can I do that?  Yes.  Under Mississippi law, a party can get a divorce from his or her spouse if there is a statutory reason for a divorce, like desertion or habitual cruelty, or if both spouses agree.  Therefore, for example, if one spouse is guilty of adultery, he or she can be sued for divorce based on that ground.  If the that person – the Plaintiff spouse – is also guilty of adultery, then a counterclaim could be filed against him or her.  Two major points here:  (1) a divorce can be granted to only one person, the one who is “most innocent”; and (2) there is an old line of thinking that when both parties are guilty of marital fault, the chancellor should not grant a divorce to either of them. This concept, known as “recrimination”, is still a valid defense in Mississippi, but it is very rarely honored.  It used to be required, but a statute makes clear that it is not any longer.

23.  Can I record conversations with my spouse in our home?  Yes, you can record the conversations in your home, but there could be some argument about whether the tapes are admissible in court.


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