DEBRA L. ALLEN
KATHLEEN A. CONWAY
ALLEN & CONWAY, PLLC
ATTORNEYS AT LAW
I. FREQUENTLY ASKED QUESTIONS
We will discuss the general “rules” concerning divorce and explain the procedure of how a divorce is obtained. There are two different types of divorces in this state and the rules are different for each type. There are Irreconcilable Differences divorces and Fault divorces. Irreconcilable Differences divorces, or “No Fault” divorces, as they are often called, require that both parties cooperate in getting the divorce. Fault divorces are those that are litigated in Court with the Judge deciding any issues the parties have not agreed upon before the trial date. If you can prove your spouse guilty of a fault recognized as a ground for divorce in this state, you can obtain a divorce without the cooperation of your spouse.
IRRECONCILABLE DIFFERENCES DIVORCE
II. IRRECONCILABLE DIFFERENCES DIVORCE
There are two types of Irreconcilable Differences, or “No Fault” divorces in Mississippi, Total No Fault Divorces, and Partial No Fault Divorces.
A. Total No Fault Divorce
In the Total No Fault Divorce, the parties are in total agreement about the terms of their divorce. First, they must agree that they each want a divorce on the grounds of Irreconcilable Differences, and the parties start the divorce by filing a Joint Complaint for Divorce. A Joint Complaint is a joint written request that the Court enter a divorce. Second, the parties must enter into a written agreement on all issues surrounding custody of children, child support, visitation scheduling, division of assets and debts, and any other relevant issues.
Both parties must sign a Joint Complaint for Divorce before a notary public. It is then filed with the Court. The parties are assigned a Judge at the time of the initial filing. The Joint Complaint for Divorce must be on file sixty (60) full days before the Final Judgment of Divorce can be entered. This is a statutory waiting period during which time either party may change their mind and revoke their agreement to the divorce.
The parties must also sign a Property Settlement Agreement, or if there are children involved, a Child Custody, Child Support and Property Settlement Agreement. In either document, the parties set out the agreement they have reached. This agreement is a contract between the parties and it must resolve all issues. The Judge must review the agreement entered into by the parties and find that it is an adequate and sufficient way to resolve the issues. The Court will pay particular attention to the agreement in the area of child support, child custody and child visitation.
If the Judge approves the agreement, the Court will enter the Final Judgment and make the divorce final. The Property Settlement Agreement becomes part of the Court’s Final Judgment of Divorce.
B. Partial No Fault Divorce
In this type of divorce, the parties agree that they want a divorce on the grounds of Irreconcilable Differences and agree that they can not agree on other issues. The parties agree to let the Court decide the issues upon which the parties disagree, but there is no trial on which party was at fault. Fault, however, may still be considered by the Court when making a determination of custody, alimony and property division.
The parties must enter into an agreement stating that they agree to proceed with a “No Fault” divorce. The parties must specifically set out in the agreement what they are asking the Court to decide. This way, the parties can agree on some issues and have the Court decide all issues upon which they cannot agree.
The Court will review and, usually, accept any agreement that the parties can reach and then hear testimony and evidence in open court concerning the issues upon which the parties can not agree. The Court will then decide and rule concerning those disputed issues and Final Judgment of Divorce will be entered. The Court will then decide and rule upon the disputed issues and a Final Judgment of Divorce will be entered.
FAULT GROUND DIVORCES
III. FAULT GROUND DIVORCES
When one spouse has committed acts that constitute fault grounds, then the other spouse may obtain a divorce from the guilty spouse whether or not the guilty spouse wants a divorce. A Judge hears all of the testimony and decides whether a divorce should be entered against the guilty spouse’s wishes. The Judge usually decides all other issues before the Court, but the parties can stipulate, or formally agree before the Judge in open court that certain facts are true, such as that one parent will have primary custody of the children, or they may agree on any other relevant issues. Then, the Judge hears from the parties and the witnesses on all other issues.
There are twelve fault grounds of which a spouse can be guilty, which, if proven, will authorize a Judge to grant a divorce to the non-guilty spouse. The most common grounds for divorce are adultery, habitual cruel and inhuman treatment, desertion, habitual drunkenness, or habitual drug use.
In a divorce filed on fault grounds, the Complaint for Divorce is filed by one spouse and is served upon and/or hand delivered by a sheriff or process server to the other spouse. The Complaint is the document which sets out the demands of the party filing the lawsuit for divorce. The party filing the lawsuit is the Plaintiff and the party being sued is the Defendant. The Defendant must file a formal written answer to the lawsuit. The Defendant has thirty (30) days to answer the lawsuit in writing, or the Plaintiff may go to Court and get a divorce without notifying the Defendant of the Court date.
A temporary hearing may be held on “emergency” issues, such as child custody, visitation and support. Some Judges, but not all, will also address debts at a temporary hearing and assign responsibility for payment of debts pending the final resolution of the case.
Before a final hearing, depositions, the exchange of relevant documents, and other “discovery” may be conducted to help the parties and the Court have sufficient information to settle the case or go to trial.
At a final hearing, and after the Court hears all of the testimony and evidence produced in Court, the Judge will rule on the unresolved issues, and enter a Final Judgment of Divorce resolving all of the issues presented by the parties.
IV. SEPARATE MAINTENANCE
There is no such thing in Mississippi as a ‘legal separation”, but there is a “separate maintenance” lawsuit. Where one spouse moves out or forces the other spouse out of the home without a valid reason, and fails to continue to support the family unit, the abandoned spouse may file a separate maintenance lawsuit. In that lawsuit, the filing party states to the Court that their spouse has left them without good reason or forced them to leave without a good reason, that they do not want a divorce, and are willing to take the spouse back, but that their spouse refuses to resume cohabitation.
GENERAL QUESTIONS CONCERNING DIVORCE -
V. GENERAL QUESTIONS CONCERNING DIVORCE -
AND OTHER FAMILY LAW MATTERS
1. Where do I file my divorce?
A. No Fault divorces
If both parties reside in the same state, the divorce may be filed in the county where either party resides. If only one party still resides in the state, then the divorce must be filed in the county where that party resides.
B. Fault divorces
If the spouse being sued resides in the state, the divorce may be filed in either the county where he/she resides, or in the county of the parties’ residence at the time they separated, if the party suing still lives in that county. Otherwise, it must be filed in the county where the Defendant lives.
2. What Court?
All divorces are filed in Chancery Court. The Judge in Chancery Court is called a Chancellor. There are no juries in divorce cases.
3. How long do I have to live in Mississippi before I can get a divorce here?
One of the spouses must have been a resident of the state for six (6) months immediately prior to the suit being filed.
4. Do I have to have lawyer?
No, but the spouse not represented by counsel may be at a disadvantage. If unrepresented by competent counsel, any mistakes, if you make an agreement, may be impossible to change later, or very expensive. The documents necessary to obtain a divorce are complicated and must meet certain standards before a Chancellor will sign the Final Judgment of Divorce.
5. If my spouse and I agree about everything can we use the same lawyer?
No. A lawyer is forbidden from representing both spouses in a divorce even if they agree on “everything.” This is because in almost all divorce cases, there are conflicting interests or matters which may need to be considered. One spouse can hire an attorney who prepares the necessary documents in the proper form. The other spouse can read and sign those documents and they do not have to get their own lawyer. This can be dangerous because there might be issues that the unrepresented spouse does not address or consider in the settlement negotiations. The lawyer retained by the other spouse is under no obligation to help the spouse that he/she does not represent.
Allen & Conway, PLLC
812 N. President Street
Jackson, MS 39202
812 N. President Street
Jackson, MS 39202
Mon - Fri: 08:00 AM - 05:00 PM