Can We Get Divorced in Mississippi?
An Overview of the Two types of Divorce and the “Four Legs of the Divorce Stool”
Overview of Mississippi Divorce Law
No one enters into a marriage with the expectation that a divorce will follow. There are times, for various reasons, when a divorce is necessary or in the best interests of one or both of the parties to the marriage, or for the family in general. In such situations, people often assume that getting a divorce is as “easy” as getting married. This is not the case. In fact, there are times when parties cannot get divorced, no matter how strongly one of the parties desires to be divorced. This blog discusses the basic requirements for getting a divorce in Mississippi.
The laws in Mississippi, as in other states, consider marriage to be a civil contract in which each party agrees to certain rights and obligations. When a marriage fails, divorce is the judicial decree which legally ends the relationship. Of note, in Mississippi, there is no legally recognized state of “separation,” as some states provide. In Mississippi, you are either married or you are not-even if you have a divorce filed and pending, and no longer living together.
Residency Requirement; Reconciliation:
To file for divorce in Mississippi, at least one of the parties generally must have been a resident of the state for at least six months. (One notable exception-military families who move to Mississippi on orders). Also, the parties cannot have “reconciled” (that is, engaged in sexual relations) subsequent to the filing of divorce and prior to the entry of the final judgment of divorce. See generally Miss. Code Ann. § 93-5-5.
Two Types of Divorce: Irreconcilable Difference and Fault-Based Divorce
In Mississippi, there are two types of divorce: an irreconcilable differences divorce (or an “ID” divorce) and fault-based divorce (or a divorce on “grounds”). See generally Miss. Code Ann. § 93-5-1, 2, 7.
“ID Divorce” and the “Four Legs of the Divorce Stool”:
An irreconcilable differences divorce is by far and away the easier, more inexpensive, and less emotionally demanding type of divorce. However, to qualify for an ID divorce, the parties generally must agree to all material issues surrounding the divorce-namely: whether there will be a divorce, how property and debts will be divided, whether one party will receive spousal support or alimony, and, if minor children are involved, who will have custody, what visitation will look like, and how much child support, if any, will be provided. Consider these issues as the “four legs of the divorce stool.” If any one is missing, an ID divorce is generally not an option. If the parties agree to all of these terms, however, an ID divorce is attainable.
An ID divorce requires a 60-day waiting period, assuming the spouses resolve all issues within that time and the court has approved the property settlement agreement, and does not require any adverse testimony in court. Usually, only one of the parties needs to appear in Court, and one attorney handles the entire divorce. The entire process can usually be completed within 75 days, all together.
Contested Divorce — “Fault-Based” Divorce of Divorce on “Grounds”:
On the other hand, if the parties do not agree on any of the material grounds for a divorce, then the matter is considered “contested” and an ID divorce is not possible. This includes whether there will be a divorce in the first place-the “first leg of the divorce stool.” This is the subject of this blog-the other “legs of the divorce stool” are addressed elsewhere.
If the parties cannot agree that a divorce is needed, then one of the parties must prove beyond a preponderance of the evidence (more likely than not) that he or she is entitled to a divorce. Mississippi is in the minority on this-most states allow a no fault divorce even in the absence of an agreement to get divorced. In order to do this, a complaint for divorce must be filed seeking a divorce, and the other party must be served, and the Court ultimately determines whether a divorce is allowed under Mississippi law based on the facts of the case.
In order to obtain a divorce in a contested case, one of the parties must prove the elements of one of the twelve “grounds” for fault established under Mississippi law. These grounds have no particular waiting period, but the other spouse must receive notification at least 30 days prior to trial. (As an aside, if the wife is pregnant when the divorce is filed, the court usually postpones the case until the child is born in order to address child support issues.)
It should be noted that there are defenses to each of the grounds of a contested divorce.
Adultery is perhaps the most common ground for divorce in Mississippi. In order to obtain a divorce on the ground of adultery, one of the parties must prove that the other committed adultery during the marriage. It should be noted that this does not require “caught in the act” evidence-in certain situations with appropriate facts and evidence, the act of adultery can be inferred. Also of note, adultery can occur before or after the parties separate, and even after a lawsuit for divorce has been filed.
Habitual cruel and inhuman treatment, likely the most common fault ground if it is not adultery, is usually considered to be conduct that endangers life, limb, or health, or creates a reasonable apprehension of such danger. It also applies to conduct of such unnatural or infamous nature to make the marital relationship revolting to the innocent spouse and can include emotional as well as physical conduct. To divorce on these grounds, the spouse must prove such conduct occurred over a period of time and was physical in nature (i.e., beatings) or had an adverse physical effect on him or her.
Desertion is a spouse’s willful abandonment of the marriage for at least one year without consent, just cause, excuse, or intention to return. Desertion can occur under the same roof, if the spouses live as strangers and the deserter intends to end the marriage. The deserted spouse must demonstrate that he/she did not consent to the leaving and that a willingness to renew the relationship was refused by the deserting partner. However, if the deserting spouse makes a good faith offer to return and the other spouse refuses, the refusing party usually becomes the deserter.
Natural impotency, insanity or idiocy, and a wife’s pregnancy by another person at the time of the marriage are pre-existing conditions that are grounds for divorce in Mississippi. In these cases, the innocent spouse must not have known of the condition prior to the marriage.
Conviction of a felony and extended custody to the Mississippi Department of Corrections, incurable insanity that develops after marriage, habitual drunkenness, or habitual and excessive drug use, are other grounds for divorce that occur after a marriage.
The grounds of habitual drunkenness and habitual and excessive drug use require clear and convincing evidence that the offending spouse is a habitual drunk or drug user and such conduct has a negative impact on the marriage, rendering him or her irresponsible, reckless, unfit, and unable to perform marital duties and responsibilities.
Bigamy and incest are two other grounds for divorce in Mississippi. Only the innocent spouse, not the one married to more than one person, may use bigamy as grounds. Mississippi law defines the types of relationships considered incestuous and, therefore, restricted from marriage.
It is not always easy to obtain a divorce in Mississippi. And, in some circumstances, it may not be possible, no matter how much one of the parties desires to be divorced. A thorough understanding of the law in Mississippi is critical to ensuring that your rights and interests are protected. Please contact us to schedule a free initial consultation to discuss your particular situation.