The fundamentals of Mississippi divorce law and procedure.
Mississippi's Venue and Residency Requirements
In Mississippi, divorces are heard in what is known as Chancery Court, which is a carryover from the English judicial system. Each county in Mississippi has its own Chancery Court and the county(ies) where a divorce action may be properly heard is known as the location of venue. A divorce based on one of the fault grounds (discussed below) is proper in: The county where the defendant resides or may be found; or The county in which the parties lived at the time they separated, so long as the plaintiff is still a resident of the county; or The county where the plaintiff is living, if the defendant is not a Mississippi resident. Divorces based on irreconcilable differences can be filed in the county where either party resides. No matter what kind of divorce is sought, at least one of the parties has to have been a resident of Mississippi for at least six months before filing. An exception to this rule is made for the many military service personnel we have on the Gulf Coast.
Mississippi has Fault Based Divorce and Irreconcilable Differences Divorce
In Mississippi, the divorce process begins with a Complaint for Divorce. The complaint must allege one, or more, fault-based grounds for divorce, and/or irreconcilable differences. Mississippi is one of the few states that do not have what is commonly referred to as "no-fault divorce." In Mississippi, both the husband and wife must agree to the divorce (even if they cannot agree on child custody or property division) or at least one of the following fault-based grounds for divorce must be proven: Natural Impotency Adultery Imprisonment Desertion Habitual Drunkenness Habitual and excessive drug use Habitual cruel and inhuman treatment Mental illness or mental retardation at the time of the marriage Bigamy/Polygamy Pregnancy of the wife by another person Incest Incurable mental illness The courts have interpreted the application of these fault-based grounds through years and years of case law. No two divorces include the exact same facts, hence there are literally hundreds of opinions on what set of facts and circumstances constitute one or more these grounds. You should consult an experienced divorce attorney to discuss which grounds might be available for you.
Mississippi is an Equitable Distribution State
In every Mississippi divorce, the court will apply a legal doctrine known as "equitable distribution." This means that the judge will divide the marital assets and marital property based on what he or she determines is fair. This does not mean that the judge will divide the property equally. In fact, it is rare that the property and assets are divided 50/50 and how it is divided is totally up to the judge. However, the judge's decision must include consideration of the following factors: Substantial contribution to property accumulation, including indirect economic contribution, contribution to family stability, and contribution to the education and training of the wage earning spouse Spousal use or disposition of assets The market and emotional/sentimental value of assets The value of each spouse's separate property/estate Tax consequences and legal consequences/obligations to third parties The extent to which property division and eliminate the need for alimony The needs of each spouse Any other equity factors the Chancellor deems necessary to consider There are many special circumstances that arise in this area of divorce law. For example, the rights of each party to a business one or both of them own and/or operate; Certain civilian and/or military retirement accounts and pensions may or may not be included in the equitable distribution depending on the facts of each case.
Mississippi Awards Custody Based on the Best Interest of the Child
If divorcing parents cannot agree on a child custody arrangement that the court will approve, the judge will determine custody based on the best interest of the child. More often than not, a form of joint custody is awarded. This means that both parents have physical and legal custody of the child, even though physical custody may not be equally shared by the parents. In determining the best interest of the child, the judge will consider the following factors: Age, health and gender of the child Parent having continuity of care prior to the separation Parent with best parenting skills and willingness and capacity to provide primary child care Employment of the parent and responsibilities of that employment Physical and mental health and age of the parent Emotional ties of parent to child Moral fitness of the parent Home, school and community record of the child Preference of the child at age sufficient to express a preference Stability of parent's home environment and employment of each parent Relative financial situation of the parents Difference in religion of the parents Differences in personal values of the parents Differences in lifestyle of the parents Other factors relevant to the parent-child relationship The evidence relating to each factor is usually presented at trial. The judge is not required to consider each factor equally, and the Mississippi Supreme Court has held that the factors are not to be used as a scorecard in awarding custody. In the typical case where joint legal custody (parents share the legal right to make decisions for and concerning their child), one parent will be designated as the custodial parent and the court will issue a visitation schedule for the non-custodial parent.
A Mississippi Divorce Can Take a Few Months to Several Years
The particular and unique circumstances of your divorce will dictate how long it takes to complete. However, you should be prepared for a long process. Even uncontested divorces based on irreconcilable differences take at least 60 days. A fault-based divorce will take longer. A divorce involving high-value assets will take even longer. Issues relating to spousal maintenance (i.e., alimony), child support, custody, and use of property usually arise at or around the time of separation, which is typically much sooner than the actual divorce. To address these issues, Mississippi courts have the power to enter a separate maintenance order to provide for one of the parties and the children during the time between separation and the final judgment of divorce.
A Fault-Based Divorce Requires Evidence
If your spouse will not agree to a divorce based on irreconcilable differences and you cannot prove one of the fault-based divorce grounds, then you cannot get divorced in MIssissippi. It's plain, simple and harsh. It also means that you may have to be calculating when planning your divorce. Some investigation is likely going to be required. For example, if you suspect your spouse is cheating, it would probably be wise to keep your suspicions to yourself. You don't want to confront him or her and give them the opportunity to destroy evidence. You should consult a trusted Mississippi divorce attorney concerning questions relating to surveillance, data mining, cell/text tracking, etc.
A Mississippi Divorce is Not Free
In Harrison County, the base filing fee for an uncontested divorce is $113.00 as of the date of this writing. A contested divorce is $153.00. There are of course other fees that are owed in the form of court costs that are incurred in every divorce. These filing fees and other court costs do not include attorney fees and legal fees, which will vary dependent on the specifics of each divorce case. Additional costs that should be anticipated are private investigator fees, expert fees, deposition costs, etc. The least expensive Mississippi divorce is one based on irreconcilable differences, and where the parties agree on property distribution and child custody. I routinely handle such cases for $350.00 plus costs/expenses. If you are considering a divorce in Mississippi, I can help. I have considerable experience in Mississippi Family Law, including divorce, child custody (and modification), child support (and modification), separate maintenance, alimony (and modification), pre and postnuptial agreements, adoptions and termination of parental rights cases. I have represented clients at both the trial and appellate levels and have a clear track-record of success. My office is located in downtown Gulfport, Mississippi, but I service clients from Mobile to New Orleans and all places in between. To learn more or to schedule a free consultation and case evaluation with me personally, call me toll free at (228) 206-5758 or email me at [email protected].
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