Reasons for Divorce in Mississippi
In Mississippi, divorces can be granted on both fault-based and no-fault grounds. The grounds for divorce are codified in Mississippi Code Annotated Section 93-5-1.
Fault-Based Grounds
The first ground listed for a divorce is adultery, defined as voluntary sexual intercourse between a married person and a person of the opposite sex (provide citation to code). For this ground to be proven, the petitioner must prove that the respondent had the requisite intent to have sexual intercourse and that the adultery was consummated by the physical act of intercourse (citation to cases).
The second ground for divorce is a conviction of a felony crime involving moral turpitude with a sentence of death or confinement without parole. Moral turpitude is defined as conduct contrary to community standards of justice, honest, or good morals (citation to case). A felony is considered any crime for which one could be sentenced to death or imprisonment in a penitentiary (citation to code). The crime must be a felony that involves moral turpitude, meaning ranging from murder to bribery , that reflects on the person’s fitness to continue as a spouse (citation to case).
A divorce may also be granted when the spouses have lived apart for three years in separate residences with no sexual intercourse. This is known as the ground of voluntary separation. The statute states that this ground is not applicable if the spouses lived apart due to an offer of reconciliation by one of them that was readily accepted by the other (citation to code).
The final ground is habitual cruel and unusual treatment. According to Mississippi law, this occurs where the spouse has so treated the other spouse with such cruelty of treatment as to render their condition intolerable and life burdensome (citation to case). This standard is higher than just cruelty, but does not transform into physical abuse (citation to case).
No-Fault Grounds
There are two no-fault grounds for divorce in Mississippi, namely irreconcilable differences and temporary insanity. To obtain a divorce based on irreconcilable differences, the parties must file a joint complaint seeking a divorce on this ground. Neither party is required to prove anything, just file a signed joint petition (citation to case). The final ground is temporary insanity, which is not a commonly used ground in contemporary practice for divorce cases. Temporary insanity is rarely a basis for divorce under contemporary divorce law in Mississippi (citation to case).
Residing in Mississippi for Divorce Purposes
Before a Circuit Court in Mississippi will have jurisdiction to grant a divorce to a party, the Plaintiff must have resided in the State of Mississippi for six months before filing the Complaint for Divorce. However, the residency requirement is a matter of venue and jurisdiction may be obtained by properly filing for divorce in the state where you or your spouse were domiciled when the divorce action commenced. The person who commenced the divorce action must have been a "bona fide" resident of that state.
Some exceptions exist for the residency requirement. First, the residency requirement may be waived, either expressly or by implication, by the Defendant spouse. Second, the residency requirement does not apply if the Defendant spouse was personally served with process in Mississippi. Third, the residency requirement may be waived if a temporary order is obtained.
A temporary order may be entered without residence provided notice is given to the Defendant and the Court is satisfied that the Plaintiff spouse is entitled to a temporary order. These temporary orders are sometimes referred to as "interlocutory" orders since they continue until the granting or denial of a final decree.
Property Settlement Laws in Mississippi in the Event of Divorce
In the state of Mississippi, property is divided based on the principles of equitable distribution. Equitable distribution means that the court will attempt to divide the assets in a manner that the judge believes fair or equitable under the circumstances of the divorce. There are all kinds of arguments or theories of fairness that arise in equitable distribution divorces, but these arguments are not controlled by any one set of rules. What becomes fair in the eyes of the judge depends on a lot of different things. When the trial court judge makes a list of assets to divide, that judge is going to determine that the real estate and the business interests and the bank and investment accounts are not distributed just based on who the "title holder" is. In other words, a title holder might own property in name only for the benefit of someone else, and that may cause a portion of that property to be subject to an equitable distribution claim. Also in Mississippi, debts are subject to equitable distribution. Just because a bank account or asset is solely in the name of one spouse does not mean that it is free from division, only that it will be divided in half before other consideration of marital and non-marital assets take place.
Custody and Child Support in Mississippi
When it comes to divorce, emotions can run high. However, if you have children, you have to make decisions about the future custody arrangements and child support payments. For many, these issues are among the hardest steps in the divorce process, as a lot is at stake. In Mississippi, child custody is determined differently than in other states. Consider the following when determining what your rights will be after the divorce.
Joint Custody
Joint custody is favored in Mississippi. According to the law, joint custody is assumed to be the best option for parents to care for a child after going through a divorce. With joint custody, you and your spouse share the legal and physical custody of your child. More often than not, joint custody works well, allowing parents to compromise on major decisions and equally split physical time with the child. A single custody option is often further contested in court if one parent is not fit to raise the child.
Scenario 1: Joint Custody
For instance, you and your spouse might go through mediation and agree to give both parents legal custody of the child. You might then decide to switch off living arrangements so each of you has equal physical custody of the child. The agreed upon arrangement might be that the child spends two weeks at your house and then two weeks at your spouse’s house. In the end, there may be a written agreement that outlines the schedule. With joint custody, you and your spouse are responsible for making decisions together about the child’s upbringing.
Scenario 2: Sole Custody
Of course, there are many cases where one parent is awarded sole custody of a child. Sole custody is typically used when a parent is found to be unfit to raise a child due to issues such as substance abuse, criminal history, or committing abusive acts against the child. In these cases, joint custody is not an option. If joint custody is not an option, sole custody is awarded. The parent is given primary physical and legal custody of the child. Essentially, you and your spouse have to go to court to determine who will be awarded custody of the child. Then, the judge decides what the arrangements will be.
Child Support
When parents have joint custody, the Mississippi courts do not usually award child support because the parents are deemed to equally care for the child and make decisions together. However, the courts can order a parent to pay child support if one parent has primary physical custody and can demonstrate that the provisions from the other parent are not substantial enough. For parents who have to pay child support, the amount will be determined using the child support guidelines set by the state. The court will consider the following factors: The state of Mississippi uses these factors to determine how much each parent will pay in child support to the other parent. Under state law, a flat percentage of gross income per child is awarded such as: Again, these percentages are for each child and two or more children may be awarded a larger percentage of gross income.
Alimony Laws in Mississippi Divorce Cases
Often referred to as alimony, spousal support is not an automatic right upon divorce in Mississippi. This means that a party must be found to be in need of spousal support and the party against whom spousal support is sought must have a "capacity to pay." If these elements are satisfied, a trial court in Mississippi has the discretion to order spousal support in favor of one party.
There are three different forms of spousal support generally available to litigants in Mississippi: If a party is granted periodic alimony, it can be terminated for the same reasons as any other contract. A party ordered to pay cannot simply stop paying the support (unless the court modifies the judgment). If the paying party stops paying , the recipient can pursue a contempt remedy. If a party seeks a lump sum out of the property division pursuant to the equitable distribution scheme, the amount is not modifiable by either party and interest accrues on the lump sum award as though it were a money judgment (i.e. at the legal rate of 8%).
Upon a divorce, a court may equally divide the property; it may redistribute the property; or it may distribute the property to one spouse and require that spouse to pay the other a lump sum as part of the property division process. Where the alimony is a separate lump sum award intended to furnish a spouse with financial support, it is awarded pursuant to the principles of alimony as discussed earlier.
How Divorce Works in Mississippi
To initiate a divorce proceeding in Mississippi, a party must file a complaint for divorce in the appropriate Circuit or Chancery Court of the County where either party is a resident. The complaint must contain jurisdictional allegations, i.e., why Mississippi has jurisdiction over both parties, and venue allegations, i.e., why the Court in which you are filing is the appropriate Court in which to file.
- The complaint also must contain some form of verification – an affidavit by the filing party that the allegations contained in the complaint are true and correct to the best of his or her knowledge.
- The complaint must be served on the other party via process. Service of process may be accomplished by certified mail, by the Sheriff’s Department, or by private process server.
- Once a response is filed by the other party, or by default by the other party, discovery will ensue. The purpose of discovery is to obtain information from the other party. This step may take several months or years. The timing of the completion of this step is essentially dependent on the complexity of the marital and financial issues involved. There are many forms of discovery available to an attorney. It is imperative that an attorney be hired immediately upon noticing there may be a divorce in the future. In a contested divorce, it always is helpful to hire an attorney at the very beginning of the divorce process.
- Once discovery is complete, a trial date will be set by the Court, and a pre-trial conference will be held between both parties and the judge. The judge will give each party a general overview of the trial process, and will make sure each party is going to be represented by an attorney, or will proceed pro se, i.e., without an attorney. At the pre-trial conference, the judge also will discuss economic issues with both parties and possibly order the parties to mediation, or conduct a conciliation trial, wherein an agreement will be requested by the Court and both parties will have an opportunity to present their position on the economic issues. In some circumstances, the parties will reach an agreement at the pre-trial conference, and if this occurs, the case will be ripe for settlement. If an agreement is not reached at the pre-trial conference, the case will be set for trial within the next several months.
- A divorce trial will take place before the Court, as a jury is not available for divorce matters. Each party has the right to present testimony, call witnesses, and submit evidence to the court. The judge takes under advisement the information presented, and will issue a divorce decree in a few months. At this time, the divorce will be final.
Getting Help with Mississippi Divorce
Your best chance at navigating the divorce process without bloodshed is hiring Mississippi divorce attorneys to help you. These lawyers are highly trained family law attorneys who’ve dedicated their careers to helping people just like you get through the process. It may not feel like it, but there’s a light at the end of the tunnel. These lawyers will help you make it through to the other side.
The majority of divorces in Mississippi are uncontested, meaning that both parties agree on the major issues of the divorce. In theory, this seems like a good thing since it means the divorce may go pretty quickly. In practice, though, it’s important to have legal assistance during the divorce process. Even the most agreeable spouses can come into conflict over the details of the divorce.
If you go with the divorce without an attorney , you may be leaving yourself open to issues later. There are many forms involved in any divorce, and it’s all too easy to misinterpret a piece of paper. If that happens, you could agree to something that you don’t fully understand. This misunderstanding continues until long after the divorce is final and ends up hurting both you and your spouse. You may owe more alimony/child support than you intended to, or you might lose visitation rights that you would’ve had if you’d consulted an attorney.
Even if you and your spouse are getting along fabulously, it pays to consult an attorney. This professional will review the legal terms you’ve agreed to, and it may turn out that the filing was never done correctly in the first place, meaning you’re still married. If that’s the case, the attorney will make sure you properly file and provide you with legal documentation that finally ends your marriage.