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 the opposing party’s 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 I.D. divorce will be granted on the 61st day after filing the case, 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 many 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. But, if all parties are interested in settling out of court, working hard to negotiate a settlement makes sense.  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 proves a fault-based ground.

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, daycare, vacations, medical expenses, etc.  Upon divorce, the court might order both parties, to pay the debts jointly after the divorce, or one spouse might be ordered to service the debt.

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). 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.

24. Do I have to give my spouse information about my finances during the divorce process? Possibly. Mississippi Uniform Chancery Court Rule 8.05 requires parties in divorces to give each other information about income, expenses, assets, debts, work history, as well as their most recent tax return. This requirement can be waived, however.

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