You Can Get a Divorce in Mississippi if You have a Reason or You Agree
There are essentially two ways one can obtain a divorce in Mississippi—if you have a reason or if you agree. There are numerous “reasons” for a divorce defined by law, and this type of lawsuit is basically like any other. It starts with filing a Complaint and it technically ends in a trial. The problem with the contested route for divorce is often the trial is not the end. Post trial briefs and motions and can be as time consuming as the process which led to the trial in the first place. Moreover, it is possible for the appellate courts to actually overturn a divorce and render people that have not cohabitated in years married again. I repeat—an appellate court can”remarry” you, even if you married someone else (stupidly) in the interim. The good news is that at anytime while traveling on the course of a contested divorce you can jump tracks and conclude your divorce on an agreed basis if that agreement is approved by the judge, which is called the chancellor in Mississippi divorce courts. You can also agree to some things and leave other things for the judge to decide. Conversely, if you are traveling down the path of cooperation or agreement and negotiations break down, you can jump tracks and conclude the divorce on a completely or partly contested basis. You can even go from an uncontested divorce to a contested divorce and back to an uncontested divorce.
Habitual Cruel and Inhuman Conduct in Mississippi
The most commonly pled but most difficult ground for divorce to prove is Cruelty. Habitual cruel and inhuman conduct is a culmination of conduct perpetrated by one spouse against the other over a period of time that makes the marital relationship insufferable to the innocent spouse and which endangers life, limb, health or safety or which creates a reasonable belief that one is in danger, rendering the relationship unsafe for the party seeking relief. One can also prove cruelty by showing the conduct of the offending spouse is so unnatural and infamous that it makes the marriage revolting to the point that it is impossible to discharge the duties of the marriage thus destroying the basis for its continuance.
A single occurrence of cruel and inhuman treatment may be sufficient to warrant a divorce, but it must be very extreme. What is cruelty in one household may not be cruelty in another. What is cruelty to one Judge may not be cruelty to another. What constitutes cruelty is open to interpretation. Cruelty can be actions or inactions. Cruelty can be characterized by emotional abuse and physical violence, neglect and non-support, drunkenness, drug addiction, refusal of sexual relations, adultery, profanity and verbal abuse. Many lawyers see cruelty as the “catch all” ground for divorce. If a person wants a divorce and the other party will not agree, cruelty is often what will be pled.
Proving Adultery in Mississippi
Adultery is very common. Adultery does not require proof of sexual intercourse. Adultery can be proven if it is shown that the offending party had the inclination and opportunity to consummate an adulterous relationship. You can use your imagination as to how this can be shown in court. An adulterous inclination may be exposed by either the defendant’s infatuation with a particular person of the opposite sex or a general adulterous nature. Both parts of the test are necessary components. Just because a wife is a flirt and seems to have a promiscuous inclination does not mean her husband would be entitled to a divorce on the ground of adultery if he cannot prove that she also had the opportunity to establish a physical relationship with someone else.
Circumstantial evidence which leads to two or more reasonable explanations of what could have happened is not enough.
The conclusion of adultery must be logical and prove the facts charged, but must also be inconsistent with a reasonable theory of innocence. It is impossible to restate all the ways to uncover the secrets of a cheating spouse, but one of the most common ways we prove adultery is through the admission of their spouse or the paramour (legal term for lover), cellular telephone records, emails, private investigator reports and recorded telephone calls. We are constantly amazed at how stupid people can be when they are cheating. When we are representing someone who has committed adultery, we tell them they will eventually be asked in a divorce proceeding whether or not they have been faithful to their spouse and they will have three choices: They can lie, they can tell the truth or they can plead the Fifth Amendment of the United States Constitution (because unlawful cohabitation is a crime in Mississippi—look it up!). A respectable lawyer will never tell their client to lie, so that leaves the truth or the pleading the fifth. Even though the judge will be able to take declining to answer based on the fifth as an admission, there are often times when this is exactly the best strategy. Other times it is better just to tell the truth because more times than not adultery is the symptom of an already sick marriage, not the disease itself. Do You Think Your Souse is Cheating?
Ten Things You Should Know About Divorce in Mississippi
No two cases are exactly alike. While people’s lives can seem similar for sure, what appears to be subtle distinctions on the surface can make a huge difference as to how a situation will turn out. What follows are ten things everyone should know about divorce in Mississippi, dispelling a few common misconceptions:
1. There must be an agreement or a reason to divorce in Mississippi. This fact doesn’t just puzzle people faced with divorce, family law attorneys who practice in other states think it is bizarre as well. Mississippi is in a small minority of states viewing marriage through this lens. Notwithstanding an annual try by a few brave legislators, our state simply refuses to make it easier to get a divorce. Because proving a legal reason is often pretty difficult, it puts the more motivated spouse in a less leveraged position. Simply stated, whether or not grounds for divorce exist can create unjust outcomes.
2. There is nothing magic about sixty-days. A request for an irreconcilable differences has to be on file for sixty-days before it is granted. Other than that, there is nothing special about sixty-days in Mississippi divorce law. Many people think after the sixty-days have elapsed you are automatically divorced, and this is not true.
3. Kids who turn twelve get a say not a choice. Another common misconception is once a child is twelve, he or she can pick their primary custodian. This is not true. Child custody is always governed by the best interest of a child. Best interest in an original custody action is measured by a list we call the Albright Factors. A child’s choice is one of them, but it is not necessarily controlling. In a custody modification case, you usually have to prove a material change in circumstances and an adverse affect on the child before you even get to the Albright analysis, with the child’s choice again being but one of twelve.
4. Leaving the house is not the same as abandoning a marriage. Many people have good reasons to physically separate, and this does not start the clock for desertion, also called abandonment. Abandonment to be legally recognized takes a full year, and the spouse left behind must be ready and willing to resume the marital relationship during that time. Abandonment can also happen within the home when a spouse unplugs from the marital relationship and the two live separate lives, even though they are under the same roof.
5. Having sex does not necessarily make all legal grounds for divorce null and void. If the spouse at fault makes a full confession of their wrong behavior and the innocent spouse accepts their confession and the couple resumes physically intimacy, all grounds for divorce can be considered forgiven or condoned. However, continuing the bad behavior can revive the grounds, and one cannot forgive something they did not know.
6. Equitable distribution does not mean equal distribution. Mississippi is an equitable distribution state. This does not necessarily mean everything will be divided equally down the middle, as multiple factors are considered, which are called the Ferguson Factors.
7. Alimony is alive and well. I have sat with more than one person who thought alimony awards are outdated. The truth is alimony is alive and well in Mississippi, although we do not have hard and fast statutory guidelines like we do with child support. As equitable distribution increases, alimony recedes. As equitable distribution decreases, the likelihood of alimony increases. There are multiple types of alimony, but the factors making up an award of alimony are amount, duration, modifiability, tax consequences, and the effect of remarriage and/or death.
8. There is no such thing as legal separation in Mississippi. Unlike some states, in Mississippi you are married until you are divorced. There is no middle ground legal distinction. The closest thing we have to a legal separation is when two people are living under the terms and conditions of a temporary order or order for separate maintenance, which is an interim court ruling saying who pays what and how any children will be co-parented.
9. Divorce is hard. There is no such thing as an easy divorce. They simply do not exist. While some divorces have less legal issues or more acrimony than others, all are raw with emotion and sorrow, and your kids will be impacted. Believe it or not, I firmly stand on the premise that reconciliation is no more difficult than divorce, which is why I almost always encourage a client to explore individual counseling to make sure they are positive about their chosen path.
10. You need an attorney. Attempting to do your divorce on your own or with a discount attorney is a mistake you are almost certain to regret. Solid legal representation is the foundation of your new life, and you should choose wisely when it comes to choosing your counsel.
Sign up for an e-Course!
"Should I Stay or Should I Go?"
The free “Stay or Go” e-Course will provide you with some insight that will help you answer the initial questions you are facing if contemplating divorce. You'll enjoy a series of emails that will be delivered to the privacy of any email account you choose, but can be stopped at any time.