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.
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 he or she wants it. A spouse is not required to give the other spouse a divorce. Unfortunately, it’s that simple.
The Mississippi Code allows divorce if one spouse is guilty of marital fault or if both 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 I.D. case, is the filing of a Complaint with the proper Chancery Court. The 60-day statutory time clock for an I.D. divorce is triggered when an I.D. Complaint for Divorce is filed, as discussed in more detail later.
There are 12 fault grounds for divorce, including adultery, desertion for the space of one year, and habitual cruel and inhuman treatment (including spousal domestic abuse). 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 like any other lawsuit in chancery court. The process is tedious and can be expensive.
Divorce by Agreement: Irreconcilable Differences
If spouses agree, in writing, that they want a divorce, they can get one based on Irreconcilable Differences. A request for an I.D. divorce is made in almost every divorce case, even when one party believes the other has committed marital fault. That way, if an out-of-court settlement is reached, the spouses can be granted an I.D. Divorce.
A request 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 60 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 (Chancery Judge) 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.
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 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.
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 any issues upon which the parties cannot agree.
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 equitable 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.
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.
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.
At one time, Mississippi based property division on whose name was associated with a particular piece of property. Now, marital property is divided in a process called equitable distribution.
Mississippi law acknowledges four general types of alimony: (1) periodic, or permanent; (2) lump-sum; (3) rehabilitative; and (4) reimbursement.
If a spouse abandons the home and won’t help with expenses, the court can order him or her to come home or send money.
Grandparents' Visitation Rights
Grandparents are not on equal footing with the natural parents of children, but they do have some potential rights to visitation.
Jurisdiction and Procedure
The Mississippi Chancery Court has exclusive jurisdiction over divorces.
Disclaimer: McNinch Law Firm, PLLC (“McNinch Law Firm”) maintains this website to provide general information about McNinch Law Firm, its attorneys and staff, and the services they provide McNinch Law Firm’s clients. This website and the materials presented here have been prepared by McNinch Law Firm for informational purposes only and are not legal advice, nor should they be construed or interpreted as legal advice. Likewise, information generated, disseminated, or distributed from this website or through third-party sites, such as social media Internet sites, is provided solely for informational purposes and is not legal advice. McNinch Law Firm does not accept requests for legal services through this website or through emails generated through this website. This website, in some instances, uses the term, “you” in a general sense. These references do not pertain to any particular person, including but not limited to a reader of this website. Nothing presented on this website constitutes or creates an attorney-client relationship.