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Fault Based Divorce

What You Need to Know About Fault-Based Divorce in Mississippi

There are essentially two ways you can obtain a divorce in Mississippi—if you have a reason or if you agree. Seeking to get divorced based on a legally recognized "reason" is at its essence a fault-based divorce.  A fault-based divorce is expensive --based on both the emotional investment and the investment of time, money and energy. Unfortunately, a fault-based divorce is often times the best way to start the process, even if you may end up agreeing to a no-fault settlement agreement. 

While there are as many reasons to get divorced as there are people who suffer through the process, there are only a few common reasons for a divorce defined by law, and still fewer which are commonly pled in divorce litigation. A fault-based divorce in Mississippi isa  lawsuit basically like any other. It starts with filing a Complaint and it technically ends in a trial before an elected Judge called a Chancellor. However, one of the many problems with the contested route for divorce is a  trial may not be the end. Post-trial briefs and motions 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 send the case back to trial for more fact finding, after you wait around for their opinion for close to a year.  Worse, an appellate court can 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 in the interim. 

The good news is at anytime while traveling on the course of a contested divorce, you can withdraw from the litigation process and conclude your divorce through a negotiated agreement. 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 change directions 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. Are you confused yet? 

Know this --a fault based divorce is aggressive. Essentially, you seek to prove you have a reason to get a divorce.  Sometimes proceeding with a fault-baed divorce is based upon the principal. Sometimes you have no choice but to proceed on a contested basis if there are pressing financial circumstances or issues with the children. Regardless your reason, for a divorce to be granted on a fault basis in Mississippi, there must be a hearing in open court.

Legal Reasons for Divorce in Mississippi:

1) Natural impotency;
2) Adultery;
3) Being sentenced to a penitentiary;
4) Desertion;
5) Habitual drunkenness;
6) Habitual use of drugs;
7) Habitual Cruel and Inhuman Treatment;
8) Insanity;
9) Being already married at time of marriage;
10) Pregnancy by another person at time of marriage;
11) Incest; and
12) Incurable insanity

The most frequent grounds for divorce are cruelty, adultery, desertion, and habitual use of drugs and/or alcohol. If you decide to go this route, you will file a Complaint in which you inform your spouse of the relief you are seeking and the basic theory of law upon which it is based. The Complaint is very simple and it essentially asks for everything you could possibly get in a divorce. The purpose is to place your spouse on notice as to what you want, so making a long factual recitation can only hurt because it could limit the theory of your case. Casting a wide net in the paperwork is called “Notice Pleadings.” After the Complaint is filed, the clerk of the chancery court will issue the summons. Most divorce cases involved two types. One is called the Rule 4 Summons which goes with almost every type of legal action in our state. This document basically informs the person to whom it is addressed they are being sued and they must take action or bad things will happen. The other type of summons in divorce actions is called the Rule 81 Summons. This is what the law requires to accompany a prayer for temporary relief, which will usually be within the Complaint for Divorce, although some lawyers create a separate document styled “Motion for Temporary Relief.” (It is also what is served on an opposing party in a post-divorce modification or contempt). The Rule 81 Summons informs you that you must be in Court on a certain day or they will proceed without you.

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 making the marital relationship insufferable to the innocent spouse and which endangers life, limb, health or safety or which creates a reasonable belief 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 it makes the marriage revolting to the point 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.

Adultery in Mississippi

Adultery is very common. Adultery does not require proof of sexual intercourse. Adultery can be proven if it is shown 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 she also had the opportunity to establish a physical relationship with someone else. Also, 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. You may be amazed at how reckless a person can be when cheating. If a person is suspected of having committed adultery, they will eventually be asked in a divorce proceeding whether or not they have been faithful to their spouse.  At that point, they 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, although it is never prosecuted—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 Spouse is Cheating?

If you believe your spouse is cheating, you are not alone. Adultery is at an all time high in our country, and women are as likely to be unfaithful as men. Most wives who cheat do so because of the lack of an intimate, emotional connection with their husband. Men cheat for the same reason, but they will also cheat for the simple adventure of it. Marriage is exceptionally difficult, and even when cheating is the farthest thing from either spouse's mind, it can happen. Sometimes good, otherwise moral people cheat too. In fact, very few ever set out to cheat on their mate. However, when the reality of everyday life sets in, including the complications of raising children and keeping afloat financially, husbands and wives become unrecognizable versions of the persons they used to be, enthralled in complex situations and emotions. Most of the time, adultery is a symptom of an already diseased relationship. If you believe your spouse may be cheating, consider the following:

Cell Phones: Over 90% of American adults own cell phones and 100% of people who cheat use them to talk to their lover. People who are cheating guard their phone like it’s their soul, and if they are especially crafty, they may even obtain a second phone for the singular purpose of talking to their paramour. If you think your spouse is cheating, try to get an itemized billing statement from their cell service provider. It will light up like a Christmas tree with their lover’s phone number. They will talk during the commute to work, and they will text incessantly. Think high school courting when you think about how a person who is having an affair thinks and acts. If there is no telephone activity during a particular period, it may be because they were together.

Social Media: Facebook, Twitter, Instagram, LinedIn, Google Plus+ and Tumblr are a part of our everyday lives. Most of the social media applications have messaging tools so users can send private communications. Review your spouse’s social media pages. Is there a particular person who engages with everything your spouse posts? Is your spouse on their device all the time? Increased social media consumption is a sign of cheating, and the resourceful spouse can read between the lines to figure out what is going on.

New Habits: People who are having affairs create new habits and routines. Let’s face reality; if you have a job or you have kids, you do not have very much time to yourself. Someone who has added a new person to their life, especially one they want to keep secret, has to develop new habits to pursue the relationship. Has your spouse added something to their life that takes up time? Do they now get up early to go running? Are they traveling more for work? Are they unexplainably absent during the middle of the day, even though their phone never leaves their side at night? Are they dressing differently? Are they going to the gym every day or at odd times? Investigate the new stuff and it will lead you to the ugly truth.

Emotional Disconnection: Every household has a rhythm to it –an ebb and a flow. Typically, everyone participates and everyone contributes. However, if your spouse is ebbing and flowing with someone new, there will be a certain level of disconnect palpable to you and the kids. She will be present, but not “here.” He will not be interested in sex. Little things will be lied about to cover up the big things.

If you think your spouse is cheating or you are in an extramarital relationship yourself, it does not necessarily mean you are going to lose your marriage. It does mean, however, something has to change and you need to consult with an attorney to know your rights, duties and responsibilities. Indeed, plenty of couples work through infidelity and salvage their marriages, but this can never happen if there are still secrets. Everyone has to want to keep the marriage together, which is one of many things you cannot control. Divorce is not the end of the world, but whether you remain married or you get a divorce, you are going to be forced to find a new normal.

We Can Help You

Here is the way this works, if you would like to talk about a contested divorce, call our office (601-898-8655) or confidentially submit a basic intake form so our staff can complete a standard conflict check. That’s when we make sure nothing on this end will stand in the way of us being helpful. Then, we will schedule a time for you to talk to one or more of our attorneys to go over your situation.

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FAQs related to Fault Based Divorce

No, it is not necessary to catch your spouse in the act. Due to the secretive nature of affairs, Mississippi courts do not require direct proof to grant a divorce on the grounds of adultery. In order to prove a case for adultery, one must show that their spouse has had the inclination and opportunity to have an affair.

Yes.  You must have 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.

No, a mother is not automatically entitled to physical custody of her children. This is a common misconception. Mothers and fathers have equal rights to their children under the law, and courts are not supposed to hold preconceived notions on the issue. Parents can either agree to a custody arrangement, or go to court and let the judge decide. A court’s determination of custody will rely on an analysis of the Albright factors, which you can learn more about by visiting Family Law University.

In Mississippi, the value of a business or practice in a divorce is straightforward. According to the Mississippi Supreme Court, the value must be determined on a “fair market value” basis and the only approved valuation methodology is the Net Asset Approach, which calculates the value of the assets and liabilities with no entity or personal goodwill, but with appropriate discounts related to marketability and control. The valuation date is set by the Court. All of this appears simple. However, it can quickly become complex if a spouse owned a business or practice prior to the marriage, inherited a business, or acquired or sold a part or all of a business during the marriage. These events might lead to issues such as value appreciation, commingling of assets, or transmutation that must be carefully analyzed.  (Special thanks to Jim Koerber, CVA) 

In short, it depends. However, the absolute shortest amount of time that two individuals can get a divorce in Mississippi is sixty (60) days from the date that the Complaint for Divorce is filed. Realistically, irreconcilable differences cases take several months to complete, while a divorce on fault grounds can take up to and over a year. The length of time that the proceedings take are influenced by many outside factors that your lawyer will not be able to control, such as your spouse, your spouse’s lawyer, and the Judge’s schedule.

As with so many other questions regarding divorce, it depends. The cost of a divorce proceeding can vary from relatively inexpensive to extremely expensive, depending on the complexity of the issues involved in the case. In order to even estimate such an expense, it is necessary to have a consultation with a professional so that they can evaluate all of the circumstances involved in your situation.

Sometimes valuing property is very simple and can include merely looking to financial statements. Sometimes, however, it is more complicated and we must hire professionals to value the property. How property is valued is largely determined by the specific circumstances, but it is always valued at a fair market value—which means the price a willing buyer would pay the seller given the buyer knows all the details and circumstances surrounding the property.

No, in Mississippi it is not necessary to have a trial to obtain a divorce. In fact, the majority of Mississippi divorces are negotiated and settled outside of court. However, in order to obtain a divorce without a trial, the parties must agree to a divorce on the grounds of irreconcilable differences, which is our legal term for “no fault.”

Not necessarily. Fault is not specifically considered by the court, but each parties' contribution to the stability and harmony of the home is a Ferguson factor. In addition, if it is determined one spouse committed adultery, the cheating spouse should only receive ongoing support if they would be destitute without it. 

Maybe. One often used defense to adultery is “condonation.” Condonation is the forgiveness of a marital wrong. Condonation may be expressed or implied. Staying in the same home does not constitute condonation and does not act as a bar to a divorce being granted, but some older cases talk about how one act of sex may be considered “forgiveness.” However, even if a true condonation exists, it is conditioned on the offending spouse's continued good behavior and full knowledge of what is being forgiven. One cannot forgive what they do not know. If your spouse does not discontinue the affair, you still have grounds for divorce. In practical effect, condonation places your spouse on a form of temporary probation. So long as he observes the conditions on which the forgiveness rests, you do not have grounds for divorce. It is necessary also that the condonation be free and voluntary. If it is induced by fraud, fear or force, it is of no effect.

Until the entry of a court order, your rights following separation are the same as they were while you and your spouse were living together. This means you and your spouse enjoy the same equal rights to your home, personal property, and children as you did before. This is often the most chaotic period of the divorce process, so communication with your spouse, if possible, can be crucial. We like to call this the “storm before the calm.”

The Ferguson factors are the considerations derived from a leading Mississippi case that courts now use to determine how to fairly divide property. They are: (1) substantial contribution to property accumulation; (2) spousal use or disposition of assets and distribution by agreement; (3) market and emotional value of assets; (4) value of each spouse’s separate estate; (5) tax consequences and legal consequences to third parties; (6) the extent to which property division can eliminate the need for alimony; (7) the needs of each spouse; (8) other factors which should be considered in equity.

There is actually no such thing as a “standard” visitation arrangement. Custody and visitation schedules are each unique, and can be structured around the families that will be living under them. Perhaps the most common situation is for the noncustodial parent to have visitation with their children every other weekend, with a night of visitation in the middle of the weeks in which they will not have weekend visitation. It is also common for parents to alternate holidays, and for each to have extended periods of time with the children in the summer.

An attorney the court appoints to represent the best interests of a child in a divorce or parental rights and responsibilities case.

Lump sum alimony is usually a one-time payment used to compensate one party who may not have benefitted as much as the other party during the process of equitable division of property.

Permanent alimony is what most people think of as the traditional type of alimony—monthly payments awarded to take the place of the support given during marriage. It terminates at the death of either party or when the recipient remarries. It can also be modified based on changed circumstances.

A parent who has physical custody of their children is the parent with which the children live most of the time. Typically, one parent will have physical custody of the children, while their former spouse will have rights to periods of visitation with the kids. It is possible for parents to share joint physical custody of the children. Under these circumstances, the children typically spend an equal amount of time with each parent.

 Rehabilitative alimony is a specific type of alimony used to keep one spouse “on their feet” after a divorce and while that spouse prepares to re-enter the workforce. It allows a spouse who may not have been working for a period of time during the marriage to have stability in order to adjust to working again.

Reimbursement alimony repays one spouse for the support he or she gave the other spouse during the marriage. Common examples of this include when one spouse worked and supported the other spouse through school.

Marital property is property obtained during the marriage, whereas non-marital property is property given to one spouse through gift or inheritance. It is important to remember that courts presume property is marital unless one party proves it is non-marital by showing the property was given to that spouse by specific gift or inheritance.

Your course of action should depend on your goal. If it is your desire to reconcile with your spouse and work on your marriage, then confronting him or her would be best. On the other hand, if reconciliation is not option, you may want to keep quiet and gather evidence. Cell phone and text messaging records typically speak volumes. Hiring a private investigator is also an option. While PI’s can be relatively costly, the results of their investigation can be quite valuable.

There is a misconception among Mississippians that a child may choose the parent with whom he or she wishes to live upon reaching the age of twelve. This is simply not the case. There must be a showing of material changes in circumstances since the last Order which have had an adverse affect on the child and that their best interest, coupled with the parental selection. While our law on this topic is well settled, many chancellors believe that if a child has made a choice, it should be honored. This is not the law.

The best way to think about how marital property is created is by determining whether any marital energy was used to earn income or grow the asset.  If you bring something into a marriage, or you receive it by gift or inheritance, you did not expend energy during your marriage to obtain it.  However, if you went to work everyday to earn income that resulted in the purchase of something, or you stayed at home and kept the children exerting energy while your spouse went to the office, those efforts result in the creation of marital property. 

Probably not. Most business interests in Mississippi are not easily sold.  To accomplish equitable distribution, all marital assets are considered, but not every asset is necessarily divided.  A business is the best example of this type of asset.  Courts routinely use lump sum alimony to balance each spouse's interest.   

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On January 2, 2017, Robertson + Associates became Robertson and Easterling, PLLC to honor the commitment of Mathew S. Easterling, a Board Certified Family Law Attorney who has dedicated his career to our clients and staff. Please be patient as we re-brand the various forms and information on this site.