This is a favorite question of many clients and perspective clients. I usually begin with telling people that there is an easy way and a hard way. Unfortunately, the easy way requires both the Husband and the Wife (or the wife / wife and/or husband / husband) to agree upon the dissolution of their marriage. This little caveat in the Mississippi law causes some major problems for many litigants. I like to describe divorces in three separate categories. This is just my personal preference, but I believe that it helps many people understand their options in an informed manner. The three avenues of divorce in Mississippi are Irreconcilable differences, fault based, or some hybrid of the two.
Irreconcilable Differences Divorce in Mississippi
If you are looking for an easy divorce in Mississippi, there may not be such a thing. However, you should start with considering whether irreconcilable differences (sometimes referred to as “no fault”) will work for you. If you care to read the entire statute for Irreconcilable Differences Divorce, Miss. Code. Ann. Section 93-5-2, you may click here.http://www.lexisnexis.com/hottopics/mscode/
Basically, the statute allows a divorce only upon join complaint of both parties. The parties must also submit a written agreement for custody, property settlement rights and other rights. The Court must approve this agreement.
The Statute also requires that the ID divorce Complaint be on file for sixty days before being heard. This does not mean that you will be automatically divorced in sixty days.
That is the easiest way to be divorced. The Procedure is as follows, in its most basic form:
- File Joint Petition for Divorce (Most common filing fee for this is $92.00 paid to clerk of Court);
- Wait for the mandatory sixty (60) days;
- File Property Settlement / Custody Agreement in Divorce Cause (usually referred to as ‘PSA’);
- Present Court with Final Decree of Divorce Incorporating the PSA by reference, and have the Court Approve.
- Live Happily Ever After.
Fault Based Divorce in Mississippi
Some prefer to go about it the hard way, or maybe they have a point to prove. Either way, you may sue your spouse for divorce if you have one of the following enumerated statutory grounds for divorce. Don’t let those the legal words mislead you. These grounds are the only way for a person to get divorced in Mississippi unless both parties agree to be divorced on the ground of Irreconcilable differences that we discussed above.
Usually, if a person has a fault based ground it is as simple as this: “My wife cheated on me, and I have proof.” File a complaint for a fault based ground – adultery. Always plead ID in the alternative and have the Defendant served with the summons and complaint. The Defendant will have 30 days to file an answer. Also an important note – YOU CANNOT BE DIVORCED BY DEFAULT IN MISSISSIPPI. You must always prove your ground for divorce by way of a trial unless the divorce is an ID divorce.
There are twelve (12) causes for divorce enumerated in Mississippi currently. The legislature can always change this statute, and this may occur on July 1, 2017. So, always check for updates. Click on the link above to view Miss. Code Ann. Section 93-5-1. They are as follows:
First. Natural impotency.
Second. Adultery, unless it should appear that it was committed by collusion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after a knowledge by complainant of the adultery.
Third. Being sentenced to any penitentiary, and not pardoned before being sent there.
Fourth. Willful, continued and obstinate desertion for the space of one (1) year.
Fifth. Habitual drunkenness.
Sixth. Habitual and excessive use of opium, morphine or other like drug.
Seventh. Habitual cruel and inhuman treatment.
Eighth. Having mental illness or an intellectual disability at the time of marriage, if the party complaining did not know of that infirmity.
Ninth. Marriage to some other person at the time of the pretended marriage between the parties.
Tenth. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy.
Eleventh. Either party may have a divorce if they are related to each other within the degrees of kindred between whom marriage is prohibited by law.
Twelfth. Incurable mental illness
Hybrid Divorces in Mississippi
The final method for divorce is what I refer to as a hybrid of the first two prongs above. There is no statute for hybrid divorces, this is a made up name that I use for the combination of the first two prongs above.
Perhaps you and your spouse can’t agree upon custody but can agree that you would like a divorce. You may submit your remaining issues that you do not agree upon to the Court for hearing and trial. This will be a final binding decision by the Court. So if you can get your spouse to agree and sign that you both wish to be divorced, then you can have the judge decide the remaining issues you can’t agree upon.
What if your spouse won’t agree to the Divorce? Well, you are stuck. Go back to looking for a cause of action in part two of this post. If you can’t find one, you are officially stuck in a marriage. Seek counselling.
A hybrid case often comes along in another circumstance as well. One party or the other has sued their spouse for a fault based ground. Perhaps there was an answer filed alleging a counterclaim. Hopefully the Complaint lists ID as an alternative ground and has been on file for sixty days, because if you reach an agreement at any time after sixty days you can withdraw your fault based grounds with permission of the Court and proceed with and ID divorce. This is a more common scenario with contested divorces. Usually by the time a divorce trial comes around both parties want to at least know they will be getting a divorce even if they do not get awarded custody, alimony or the marital property in the manner they would like to receive by the Court’s order.