Legal Grounds for Divorce in Mississippi
Divorce Grounds in Mississippi
Many people who are contemplating divorce want to know what they have to prove to get divorced. There are basically two ways divorces can be granted in Mississippi, and some people may have a misconception about the divorce grounds or applicable "grounds for divorce" in Mississippi. Many people want to know if they should file for divorce that is not for the "fault" of either spouse. The divorce grounds in Mississippi include:
Fault Divorce Grounds or Conduct Divorce Grounds
Although everything I will list here does not necessarily need to be proven by clear and convincing evidence, I thought it was important to list everything that applies to divorces in Mississippi so that the reader will have a comprehensive list of all grounds. When a party files for divorce on grounds of fault , they really need to make sure that the grounds are proven so the divorce can be granted on the fault grounds. Although a judge may grant a divorce where the couple jointly filed on the irreconcilable difference grounds, if a party files on other grounds of divorce:
When a party files for divorce with grounds of fault, they have to prove the elements of that ground with clear and convincing evidence. The terms may get changed up in case law as time goes on, and new case law comes out.
There are actually other grounds that can be considered for divorces in Mississippi, but they are not proven by preponderance of the evidence. Preponderance of the evidence is basically the standard of proof in civil lawsuits and is the standard that would apply to dividing up property in a Mississippi divorce case.
Mississippi Divorce Residency Rules
In general, to establish residency in Mississippi you have to be a resident of Mississippi for six months prior to filing the appropriate pleading in the appropriate Mississppi Court to begin proceedings for divorce. The law does say that if you are militarily stationed at a military installation in Mississippi and meet the above mentioned criteria then you would also be eligible for divorce in Mississippi.
If you achieve residency while living in Mississippi and are stationed somewhere else due to military orders, this does not affect your ability to seek a divorce in Mississippi. In fact, many of my out of state clients come to me in order to obtain a divorce from the state of Mississippi. The reason is typically to protect Mississippi assets prior to separation and/or to obtain a divorce quicker, rather than waiting the required minimum of 90 days to obtain a divorce here in Mississippi.
Divorce Procedure and Filing
The divorce process is initiated in Mississippi through a legal petition that must be filed with the chancery court of the appropriate county. The petitioner is the person filing for divorce, while the other party to the action is the respondent, and the term "complainant" generally refers to the petitioner in the court pleadings.
A divorce case is typically filed in the county where at least one of the parties resides. If both spouses reside in different counties at the time of the filing, the matter may be filed in either spouse’s county.
A petition for divorce must state the grounds for the divorce. In Mississippi, there are two general categories of divorce grounds: No-Fault Divorce and Fault-Based Divorce. No-fault grounds are simple in nature and include irreconcilable differences or the separation of the parties for a period of more than one year. On the other hand, fault-based grounds for divorce include adultery, spite and/or reconciliation, domestic violence, or other grounds that must be specifically stated in the petition.
It is best to have an attorney prepare the petition for divorce in order to ensure it meets all the appropriate procedural requirements. Particular forms are available for a divorce proceeding, and forms should not be used from a different type of court action or from a different state. Forms may be obtained through any Mississippi chancery court, the chancery administration office, or the website of the Mississippi Administrative Office of Courts.
Once the petition is properly drafted, it must be served on the respondent after payment of the appropriate filing fees. Examples of the necessary filing fees for divorce actions include a $165 trial court filing fee, a $10 fee for the clerk, $25 for the Chancery Court fund, and $29 for the Guardian Ad Litem fund. There may also be an additional $15 fee for certified copies, $25 for a deposit in the case of registered mail, and the cost of publication should service by publication be required.
After the petition has been served on the respondent, he or she typically has three options: (1) file an answer and propose a counterclaim; (2) file an answer to the complaint; or (3) allow the matter to go through an uncontested divorce proceeding. In other words, if the parties can agree on the terms of the divorce, they can enter an agreed final judgment.
If the parties cannot agree on the terms for divorce, the matter will typically be set for a contested trial before the chancellor. However, the parties are encouraged to mediate their disputes prior to trial. Mediators and the rules for mediation have been established by the Mississippi Supreme Court.
When a divorce goes to trial, witnesses may testify on behalf of each party. The courts will also typically offer financial information to the parties. A complete record of a trial must be kept, and the matter will be heard before a chancellor. The chancellor will ultimately grant the divorce or deny the request, and the terms of the divorce will be included in the final judgment. All judges are chancellors, but not all counties have the same number of chancellors. Accordingly, the chancellors may have different views on the factors each judge should consider when determining custody issues.
How to Split Your Assets and Property
The division of property and assets during a divorce can be one of the most contentious issues couples face as they attempt to separate their lives. In Mississippi, the law utilizes equitable distribution principles to determine how assets and debts will be divided. Essentially, the court seeks to fairly distribute the couple’s "marital estate," which includes all assets and debts acquired during the marriage, with a few exceptions. Separate or pre-owned property, such as items acquired prior to the marriage, remain with the owner spouse. The court may also exclude property acquired via gift or inheritance by one spouse. Determining what is included in the marital estate and how property should be divided largely depends on two issues: classification and valuation. A divorce proceeding will require the parties to identify and list all property owned by the couple, classify each item as either marital or separate property, and valuate each item. Property that is identified as marital will be included in the "marital estate," and may be subject to equitable distribution. After the property has been classified, the court will divide the marital estate, taking into account a variety of factors. Mississippi law provides some examples of factors that a court may use while deciding how marital property will be distributed, including the following: While the law does list some specific factors that are considered, the court is given great discretion in dividing the property. It is important to understand that "equitable" does not always mean equal – instead, the court is required to divide the property with consideration of what would provide for a fair and reasonable amount for both spouses. For this reason, the division of marital assets is unique to each situation, and can vary greatly from couple to couple.
Laws Regarding Child Custody and Support
The state of Mississippi allows divorce courts to award custody of the children of spouses using several methods, including joint custody, sole custody, visitation and separate parenting time. Joint custody awards parents equal authority over their children and allows them to share time with the children on a 50-50 alternating schedule. Sole custody gives one parent primary control over the children, while the other parent receives visitation rights and pays child support. Visitation can be arranged in two ways. First, parents may negotiate a schedule by themselves. Alternatively, the court may specify a schedule .
Mississippi divorce courts use several factors in determining the appropriate solution for child support. The specifics of the child custody arrangement are not used. Courts only look at the amount of income available to pay support and the number of children requiring support. While the non-custodial parent is normally responsible for paying support, these obligations can be switched if the custodial parent challenges the arrangement. Courts strongly encourage parents to come up with their own child support plan rather than allowing the court to determine a child support plan on their behalf.
Spousal Support and Alimony Payments
Alimony, also known as spousal support, is not an automatic award in divorce cases in Mississippi. There are several different types of alimony that the court may consider in deciding whether to grant alimony and how much to grant.
Several factors are considered by the court in determining whether a spouse is entitled to alimony and the amount of the award. Alimony is presumed to be periodic alimony (as opposed to a lump sum payment in one payment or installment payments over a set time period).
The court first considers whether a spouse has a significant relative disparity in income which makes it more likely than not that a spouse will lack sufficient means to provide for his or her needs if alimony is not awarded.
The court then considers the factors in Harrison v. Harrison and Acker v. Acker: Once the court determines that a spouse is entitled to some alimony award, the court must determine the amount and duration of payment.
The court considers the type of alimony to award, including lump sum, periodic, rehabilitative, and under the catchall other provision. A discussion of lump sum, periodic, and rehabilitative alimony is here. Alimony under the catchall other provision is a less common award.
Lump sum and periodic alimony are not modifiable by the court after an award, except for instances of a payor’s death (periodic only) and in limited cases where a payor cannot afford alimony (lump sum only).
Rehabilitative alimony terminates by operation of law once the stipulated period expires, but may be extended upon application of the beneficiary spouse if he or she has not completed the terms of the settlement agreement. Rehabilitative alimony can also terminate upon the death of the payor or payee spouse, but may also terminate upon the marriage of the payee spouse.
Catchall alimony is probably easiest to modify of all types of alimony. The award is not final. Any party can petition the court to change or eliminate catchall alimony.
Tax Consequences and Debt Implications of Divorce
Divorce has an immediate and long lasting impact on taxes. It also impacts how debts are paid after the divorce. The first big issue is the filing status after the divorce. In Mississippi, if you get divorced anytime between January 2 and December 31, then you have to choose between married filing jointly or married filing separately. You cannot file single because you weren’t single as of December 31st. Married filing separate has the lowest tax brackets, so the tax burden gets shifted to the spouse that ends up with more income. Sometimes a spouse would owe more in taxes as an individual than together filing joint. So, that spouse would want to file married separately. On the positive side for the lower earning spouse, when you file married separate, you are responsible for your own income taxes. While that may sound obvious, sometimes the low earning spouse is responsible for the other spouse’s taxes. For the high earning spouse of the couple, married filing separate means that they are also responsible for the low earning spouse’s taxes since they are still married on December 31st. For the year when the divorce is final, things can get tricky. The divorce agreement can state who gets to file head of household, married filing separate or single. But when the IRS looks at the return, they look at who is married on December 31st. One way to avoid this problem is to ensure the divorce is final by December 31st of the year before the first joint tax return is filed. Which spouse gets to claim dependent exemptions is also an issue. It sits on the tax return like a deduction (exemption is no longer the term used by the IRS) but it impacts the tax brackets. Sometimes the higher income earning spouse ends up with the kids and their income gets evened out in the divorce or custody arrangements. That may not be the result they want when it comes to taxes. Still, it is their right to have it that way. When the property is awarded (divided) in the divorce, there is no immediate tax effect. For example, if the marital home is sold, then the gain on the sale of the home is free from tax (as long as it is the principal residence of one of the spouses and they lived there for two of the last five years). So, if there was a gain on the home sale of $100,000 that was divided between the spouses, then no income tax would be due. For the debts that come out of the divorce, usually transferring the debt is not taxable either. A mortgage in one spouse’s name can be transferred to the other spouse without a taxable event. Sometimes lenders balk about transferring the debt because they don’t want to lose the paying spouse. But that’s on them. Whatever they want to do with the debt it does not change the terms of the divorce.
Legal Support and Resources
For those seeking legal assistance to navigate the complexities of divorce laws in Mississippi, there are numerous resources available. Legal aid services can provide guidance and representation for low-income individuals or those who meet certain criteria. The Mississippi Volunteer Lawyers Project (MVLP) is a prominent organization focusing on this, helping connect low-income residents with free legal representation in civil matters, including divorce.
State and local bar associations, such as the Mississippi Bar Association, can also guide individuals seeking legal assistance . They often maintain detailed lawyer referral services, providing suggestions for licensed attorneys who specialize in family law.
Further, numerous community organizations and online platforms offer divorce support groups for individuals looking for emotional guidance and support from others who are going through similar experiences. These groups can be invaluable for both emotional guidance and practical advice on legal processes.
Finally, there are numerous online legal resources and platforms that educate the general public about Mississippi’s divorce laws, and what steps need to be taken when filing for divorce in the state.
