Whether you live in Mississippi or elsewhere, divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If one of the parties will be unable to be self-supporting after the divorce, the issue of alimony may also arise. If there are minor children, the issues of child custody and support will need to be resolved.
Residency and where to file
In order to file for divorce in Mississippi, either you or your spouse must be a resident of the state for at least six months, and not have moved to Mississippi for the reason of filing for divorce. (However, considering the details of divorce law in Mississippi, it is difficult to conceive of a situation where anyone would want to move to Mississippi in order to get divorced. It is much more likely that one would want to avoid getting divorced in Mississippi.) For a no-fault divorce, if both parties are Mississippi residents, you may file in the Chancery Court in the county where either party lives. If your spouse (the defendant) is not a resident, you may file in the county where you (the complainant) reside.
If you use one of the fault-based grounds for divorce, the following rules apply: If the defendant is a Mississippi resident, you may file in the county where the defendant resides, or in the county where you both last lived together. If the defendant is not a Mississippi resident, you will file in the county where you live.
The most simple procedure is an uncontested divorce using the no-fault grounds. You and your spouse will either need to have a written agreement on property division, alimony, and child custody and support (if applicable); or sign a consent to allow the court to decide these matters. Also, both parties must agree that there are irreconcilable differences. You begin the divorce procedure by filing a Bill of Complaint for Divorce, along with various other supporting documents. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Divorce.
Grounds for divorce
Grounds for divorce are legally recognized reasons to get a divorce. This is the justification for severing the marital relationship. Mississippi has what is commonly called no-fault grounds for divorce, but unlike most states, this is only available if both parties agree to end the marriage. Otherwise, one of several traditional fault-based grounds must be used.
To get a no-fault divorce in Mississippi you need to state in the Bill of Complaint for Divorce that “the parties have irreconcilable differences.” If you are not certain that your spouse will cooperate by signing either a settlement agreement or a consent to allow the court to determine all issues, you may want to also include a fault-based ground (if one applies) in your Bill of Complaint for Divorce. Probably the most common fault-based ground is “habitual cruel and inhuman treatment.”
The fault-based grounds for divorce in Mississippi are:
- natural impotency
- being sentenced to a penitentiary
- “willful, continued, and obstinate desertion” for one year
- habitual drunkenness
- habitual and excessive use of opium, morphine, or other similar drug
- habitual cruel and inhuman treatment
- having mental illness or an intellectual disability at the time of marriage, if the party complaining did not know of that infirmity
- marriage to some other person at the time of the pretended marriage between the parties
- pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy
- the parties are related to each other within the degrees of kindred between whom marriage is prohibited, and
- incurable mental illness
Using fault-based grounds makes the process more complex, as proof is required to support the grounds for divorce.
Although they are unlikely to admit it, at least some judges in Mississippi do not look favorably upon a defendant who refuses to recognize that his or her spouse wants to end the marriage, thereby forcing the use of fault-based grounds. They are not about to force a couple to remain married when it is obvious that one of them wants out. At best, such judges will find a fault ground exists, when it really doesn’t. At worst, such judges may effectively punish the resistant spouse with a grossly inequitable property division, and excessive alimony and custody orders.
A divorce involves dividing property and debts between you and your spouse. Unlike most states, Mississippi's divorce law does not contain any property division guidelines. This leaves the matter up to the judge to interpret prior appellate court decisions. These are mostly based on the concept of “title,” in which each party keeps what is titled in his or her name. Jointly titled property will be divided by the judge. This system has a history of favoring the husband. More recently, judges have offset an otherwise unfair result by liberally awarding lump-sum alimony, or by considering the wife’s contributions to acquiring the property.
Alimony in Mississippi
Unlike most states, Mississippi's alimony law does not provide much in the way of guidelines. The law gives the judge wide discretion as to whether to award alimony, and the amount and duration of alimony, only stating that the award should have “regard to the circumstances of the parties and the nature of the case.” Alimony may continue even after the party receiving it remarries.
Child custody in Mississippi
If you and your spouse have any minor children, there will have to be a custody determination. The court must decide the issues of legal custody (concerning the right to make major decisions about the child’s welfare), and physical custody (concerning where the child lives and the time each party spends with the child). Custody, legal or physical, may be awarded to one party or to both parties jointly. If both parties agree to joint custody, it will be presumed to be in the child’s best interest. Unlike most states, Mississippi child custody law does not set forth any particular factors the judge must consider in making a custody, but only states that consideration should be given to “the circumstances of the parties and the nature of the case.”
There are certain factors to be considered by the court if one party has been a perpetrator of domestic violence. If a party alleges the other party committed domestic violence and the court finds the allegations “are completely unfounded,” the court will order the party falsely alleging domestic violence to pay “all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegations.”
Child aupport in Mississippi
A decision must also be made about how the children will be financially supported. This almost always comes down to one parent paying money to the other. Child support is determined by taking into account the needs of the child, and each parent’s relative ability to meet those needs. This is determined by reference to the Mississippi child support guidelines. The guidelines are available on the Mississippi Department of Human Services website.
A court hearing may not be held until 60 days after the Bill of Complaint for Divorce is filed. Remarriage is permitted once the decree is entered, even if an appeal is pending.
LegalZoom’s online divorce service is an inexpensive way to file for divorce if you and your spouse agree on most major issues. Otherwise, you can talk to an attorney for advice or help filing for divorce through the LegalZoom personal legal plan.
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