Mississippi Divorce Law

Divorce and Legal Separation in Mississippi




Divorce and Legal Separation in Mississippi

Mississippi Divorce Basics

The termination of marriage in Mississippi is legally referred to as a Divorce from the Bonds of Matrimony.

Residency Requirement:

To file for divorce, one of the parties must have been a bona fide resident of Mississippi for six months immediately preceding commencement of the suit.

If a member of the armed services of the U.S. is stationed in Mississippi and residing in the state with his/her spouse, he/she and the spouse shall be considered bona fide residents of the state, providing they were residing within the state at the time of the separation of the parties.

However, if there is proof showing that a residence was acquired in the state with the purpose of securing a divorce, the court shall not take jurisdiction and dismiss the Complaint instead.

Filing:

Complaints for Divorce
, filed for grounds other than irreconcilable differences, must be filed in the county where the Plaintiff (filing party) resides, if the Defendant (non-filing party) is not a resident of Mississippi or is absent from the state.

If the Defendant is a resident of the state, the Complaint shall be filed in the county where the Defendant resides or is located or in the county of the residence of the parties at the time of separation, if the Plaintiff is still a resident of the county when the suit is commenced.

If both parties are residents of the state, a Complaint for Divorce based solely on the grounds of irreconcilable differences shall be filed in the county of residence of either party. If one party is not a resident of this state, then the Complaint shall be filed in the county where the resident party resides.

The proceedings to obtain a divorce shall be by Complaint in Chancery, and shall be conducted as other suits in chancery, with the following exceptions:
  • The Defendant shall not be required to answer on oath;
  • No judgment by default may be granted, but a divorce may be granted on the ground of irreconcilable difference in term-time or vacation;

  • Admissions made in the Answer shall not be taken as evidence;

  • The clerk shall not set down on the issue docket any divorce case, unless one of the parties requests it;

  • The Plaintiff may allege only the statutory language as cause for divorce in a separate paragraph in the Complaint, provided that the Defendant shall be entitled to discover any matter, not privileged, which is relevant to the issues raised by the claims or defenses of the other;

  • The court shall have full power in its discretion to grant continuances in such cases without the compliance by the parties with any of the requirements of law respecting continuances in other cases; and

  • All Complaints, except those seeking a divorce on the ground of irreconcilable differences, must be accompanied with an affidavit of the Plaintiff that is not filed by collusion with the Defendant for the purpose of obtaining a divorce, but that the cause(s) for divorce stated in the Complaint are true as stated.
Complaints for divorce on the ground of irreconcilable differences must have been on file for 60 days before being heard.

The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under any regulations and restrictions that it deems proper, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.

Spouse’s Name:

Although the divorce statutes do not address restoration of a spouse’s former name, either spouse may request a name change in the divorce complaint.

Legal Grounds for Divorce

A divorce in Mississippi may be granted for one or more of the following fault-based grounds:
      1. Natural impotency;

      2. Adultery, unless it appears that it was committed by collusion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after the Petitioner received knowledge of the adultery;

        3. Being sentenced to any penitentiary, and not pardoned before being sent there;

        4. Willful, continued and obstinate desertion for a period of one year;

        5. Habitual drunkenness;

        6. Habitual and excessive use of opium, morphine or other like drug;

        7. Habitual cruel and inhuman treatment;

        8. Having mental illness or an intellectual disability at the time of marriage, if the Petitioner did no know of the infirmity;

        9. Marriage to another person at the time of the marriage or pretended marriage between the parties;

        10. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy;

        11. Either party may have a divorce if they are related to each other within the degrees of kindred which is prohibited by law; and
         
        12. Incurable mental illness, where the ill party has been under regular treatment for mental illness and its causes, confined in a mental institution for a period of at least three years immediately preceding the commencement of the action.
    If a judgment is granted on the ground that one of the parties was married to another at the time of the marriage or pretended marriage between the parties, it shall deem the marriage between the parties to have been invalid and void from the beginning.

    When a divorce is granted on the ground of adultery, the court may prohibit the guilty party from remarrying for one year, provided there is a Petition to remarry and satisfactory evidence of reformation, or for good cause shown by the guilty party.

    A divorce may also be granted for no-fault grounds if both the husband and wife file a Joint Complaint claiming the ground of irreconcilable differences, or if the Petitioner claims irreconcilable differences in the Complaint and the Defendant is personally served, or has entered an appearance by written waiver. Irreconcilable differences may be asserted as a sole ground for divorce or as an alternate ground for divorce along with a fault-based ground for divorce.

    If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree.

    No divorce may be granted on the ground of irreconcilable differences is there has been a contest or a denial, unless the contest or denial has been withdrawn or cancelled by the party filing it.

    Annulment

    Void Marriages:
    • Marriage between a son and his grandmother, mother or stepmother, between a brother and his sister, between a father and his daughter or his legally adopted daughter or granddaughter, a son and his half-sister, a nephew and his aunt, between first cousins by blood, a father and his son’s widow, a man and his stepdaughter or step-granddaughter, an uncle and his niece, and like prohibition shall extend to females in the same degrees; and
    • Marriage between persons of the same sex.
    All bigamous or incestuous marriages are void, and a declaration of nullity may be obtained at the suit of either party.

    A marriage may be annulled for any one of the following causes existing at the time of the marriage ceremony:
    • Incurable impotency;
    • Adjudicated mental illness or incompetence of either or both parties; and
    • Failure to comply with the provisions legally necessary to obtain a marriage license and the marriage has not been followed by cohabitation.
    The following marriages may also be annulled, in the absence of ratification:
    • Either party is incapable of consenting to any marriage due to age or understanding;
    • Either party is incapable from physical causes of entering into the marriage state;
    • The consent of either party has been obtained by force or fraud; and
    • The wife was pregnant by another person and the husband did not know of the pregnancy.
    The chancery courts of Mississippi shall have jurisdiction to hear and determine all suits for annulment and all suits for annulment shall be tried in term time or vacation, and the same rules of pleading and procedure shall apply as in divorce cases, and the laws of process currently in force in divorce cases in Mississippi shall apply in all suits for annulment.

    The Complaint for Annulment shall be filed in the county where the Defendant resides, or in the county where the marriage license was issued, or in the county where the Plaintiff resides, if the Defendant is a nonresident of the state.

    Property Division

    When granting a decree of divorce from the bonds of matrimony, the court has the authority to divide real and personal property of the spouses.

    Mississippi is an equitable distribution state. Case law has identified marital property as all property earned during the marriage, regardless of the source or which party earned it, with the exception of property that was acquired by one of the parties by gift or inheritance and has been kept separate from the other party and other property that is marital in nature.

    In addition, there is a presumption that the contributions of both spouses to the accumulation of property during the marriage are to be presumed equal. This includes the contributions of a homemaker.

    The courts may consider the following guidelines when determining division of property:
    • Substantial contribution to the accumulation of the property, whether it be a direct or indirect economic contribution, contribution to the stability and harmony of the marital and family relationships as measured by quality and quantity of time spent on family duties and duration of marriage, and contribution to the education, training or other accomplishment bearing on the earning power of the souse accumulating the assets;
    • The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of these assets by agreement, decree or otherwise;
    • The market value and the emotional value of the assets subject to distribution;
    • The value of assets not ordinarily subject to the distribution, such as property brought into the marriage by the parties and property acquired by inheritance or gift by or to an individual spouse;
    • Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
    • The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
    • The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and
    • Any other factor deemed equitable by the court for consideration of property distribution.
    If the parties provide by written agreement for the settlement of any property rights between the parties and the court finds that these provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and the judgment may be modified as other judgments for divorce.

    Alimony and Support

    When granting a decree of divorce from the bonds of matrimony, the court may make all orders regarding the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him.

    After the determining how to divide marital property, the court will consider whether to award alimony. If the property division will adequately provide for each party, generally no alimony will be awarded. If one party is left with a deficit after the division of marital property, alimony may be considered.

    State law defines two types of alimony:
    • Periodic alimony – provides the receiving spouse with income for an indefinite period of time, ceases upon the remarriage or co-habitation of the receiving spouse or the death of either spouse, and is subject to modification; and

    • Lump sum alimony – a fixed and final dollar amount meant to equalize the financial situation between the parties, may be payable in a single payment or fixed periodic installments over a period of time, and may not be modified, nor does the death or remarriage of either spouse affect it.
    Courts may also award Rehabilitative Alimony, which allows one spouse to receive support from the other spouse for a fixed, definite time period, for the purpose of allowing the receiving spouse to become self-supporting without becoming destitute.

    Regardless of the type of alimony selected, the court must state a specific amount. When deciding on an alimony award, the court may consider the following factors:
    • The length of the marriage;
    • The age, health and earning capacities of the spouses;
    • The standard of living of the spouses, both during the marriage and at the time support is being determined;
    • All sources of income of both spouses;
    • The reasonable needs of the requesting spouse;
    • The necessary living expenses of the paying spouse;
    • The obligations and assets of each spouse;
    • Whether there are minor children in the home which may require the need for child care;
    • The tax consequences of an alimony award;
    • Wasteful depletion of assets by either spouse; and
    • Other related issues and circumstances presented in evidence.

    Child Custody and Support

    When granting a decree of divorce from the bonds of matrimony, granting an annulment or declaring a marriage void, the court may make all orders regarding the care, custody and maintenance of the children of the marriage.

    If the parties provide by written agreement for the custody and maintenance of any children of that marriage and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.

    Custody:

    Custody is awarded based upon the best interests of the child. The following types of custody arrangements may be awarded:
    • Physical and legal custody to both parents;
    • Physical custody to both parents jointly, and legal custody to either parent;
    • Legal custody to both parents jointly, and physical custody to either parent; or
    • Physical and legal custody to either parent.
    If the court finds that both parents have abandoned or deserted the child or that both parents are mentally, morally or otherwise unfit to raise and train the child, the court may award physical and legal custody to another party.

    Parents may be required to submit to the court a plan for the implementation of the custody order.

    The court presumes that joint custody is in the best interest of a minor child when both parents have agreed to this arrangement. There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.

    In every proceeding where the custody of a child is in dispute, there shall be a presumption that it is detrimental to the child and not in his/her best interest to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence.

    Support:

    Mississippi uses the Percentage of Income Model in determining child support obligations. It is based on the paying parent’s monthly adjusted gross income (AGI) and the number of children for whom support is being ordered.

    The AGI is determined by totaling gross income from all potential sources that may reasonably be expected to be available to the absent parent, minus the following deductions:
    • Federal, state and local taxes;
    • Social security contributions;
    • Retirement and disability contributions except any voluntary retirement and disability contributions;
    • If the absent parent is subject to an existing court order for another child(ren), subtract the amount of that court-ordered support; and
    • If the absent parent is also the parent of another child(ren) residing with him/her, the court may subtract an amount that it deems appropriate to account for the needs of the child(ren).
    The total annual amount of the AGI is computed and then divided by 12 to obtain the monthly amount of AGI.

    When the obligor’s monthly AGI is more than $50,000 or less than $5,000, the court shall make a written finding in the record regarding whether or the guidelines are reasonable. Otherwise, the following schedule applies:
      14% for one child;
      20% for two children;
      22% for three children;
      24% for four children; and
      26% for five or more children.
    The court presumes that the amount of support determined by the established guidelines shall be just and appropriate. To overcome this presumption, it must be found that the application of the guidelines would be unjust or inappropriate in a particular case, as determined according to the following criteria:
    • Extraordinary medical, psychological, educational or dental expenses;
    • Independent income of the child;
    • The payment of both child support and spousal support to the receiving parent;
    • Seasonal variations in one or both parents’ incomes or expenses;
    • The age of the child, taking into account the greater needs of older children;
    • Special needs that have traditionally been met within the family budget even though fulfilling of those needs will cause the support to exceed the proposed guidelines;
    • The particular shared parental arrangement, such as when the non-custodial parent spends a great deal of time with the children reducing the custodial parent’s financial costs, or the refusal of the non-custodial parent to become involved in the activities of the child;
    • Total available assets of the receiving parent, paying parent and the child; and
    • Any other adjustment which is needed to achieve an equitable result which may include a reasonable and necessary existing expense or debt.
    When it’s proven that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each.

    All orders involving support of minor children, as a matter of law, shall include reasonable medical support.

    If a legally responsible parent has health insurance available to him/her through an employer or organization that may extend benefits to the dependents of that parent, any order of support issued against the parent may require him/her to exercise the option of additional coverage in favor of the children for whom he/she is legally responsible to support.

    Whenever the court has ordered child support, but no bond, sureties or other guarantee has been required to secure the payments, and the support payments remain unpaid for a period of at least thirty (30) days, the court may, upon petition of the receiving parent, enter an order requiring that bond, sureties or other security be given by the paying parent, the amount and sufficiency of which shall be approved by the court. The obligor shall, as in other civil actions, be served with process and shall be entitled to a hearing in such case.

    The duty of support of a child terminates upon the child’s emancipation, which occurs when the child does one of the following:
    • Reaches the age of 21 years;
    • Marries;
    • Joins the military and serves on a full-time basis; or
    • Is convicted of a felony and is sentenced to incarceration of two or more years for committing the felony.
    The court may also determine that emancipation has occurred and no other support obligation exists when the child does one of the following:
    • Discontinues full-time enrollment in school having attained the age of 18 years, unless the child is disabled;
    • Voluntarily moves from the home of the custodial parent or guardian, establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors prior to attaining the age of 21 years; or
    • Cohabits with another person without the approval of the parent obligated to pay support.
      The duty of support of a child who is incarcerated but not emancipated shall be suspended for the period of the child’s incarceration.

    Legal Separation

    Mississippi does not recognize legal separations and has no statutory provisions for legal separation. However, during a pending divorce procedure, the spouses may request temporary relief, which sets out the spouses’ respective obligations during their physical separation, while awaiting their final divorce decree.

    The issues addressed in temporary orders may include child custody, visitation, child support, alimony and other related matters.

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