What You Need to Know About No Fault Divorce in Mississippi
The best, fastest, easiest, least expensive and most common way to get a divorce in Mississippi is a no fault divorce. To be technically correct, we do not have true “no fault” divorce in Mississippi, but we do have divorce by consent. We call divorce by consent irreconcilable differences. An irreconcilable differences divorce is relatively easy to obtain. They are almost always more emotionally than legally complicated. If both parties are ready to move past the marriage and fully informed concerning the financial makeup of the marital estate, several documents will need to be generated and filed in the Chancery Court records.
The first document is the Complaint. The Complaint is usually filed in the county of your residence and can be a Joint Complaint or a Complaint filed by one of the parties to the marriage. This, like all of your other divorce documents, is public record accessible by anyone. It essentially contains basic biographical information and some statutorily required language, asking the Court to either collectively or individually grant a divorce. The reason a person often files a Complaint before an agreement is reached is because an irreconcilable differences divorce must be on file for sixty (60) days before a divorce is awarded. People often confuse the sixty-day waiting period. It is simply a cooling off period imposed by the legislature attempting to prevent someone from rushing into a divorce. It has absolutely no other purpose.
You can see what one looks like Here.
Consent and Service of Process
In the event you and your spouse do not sign together and a Complaint is placed on file, the party who did not file must sign a statement consenting to the divorce. This is done on a separate pleading, which the fancy name for court paper. The formal delivery of the papers, called “Service of Process”, is not required in an irreconcilable differences divorce. This is due to the fact a divorce without fault grounds cannot be obtained by default. The only reason that an attorney may choose to “serve” your spouse with an irreconcilable differences divorce is to give her formal notice of the legal proceeding or because of the rule requiring a lawsuit to be served within a certain period of time so it does not expire. This is a little on the technical side and is rarely a problem. A few Judges also require litigants in a divorce proceeding to attending a parenting class to talk about children’s issues in divorce. Most people hate going but after the fact are glad they went.
Take a look at this form Here.
The 8.05 Financial Statement
Financial statements are a requirement imposed by the Rules of Chancery Court. Lawyers call this the 8.05, after the rule number. 8.05 Financial Statements are the second most important documents divorcing persons in Mississippi complete. Work closely with your attorney is completing your financial statement, which itemizes income, expenses, assets and liabilities. The budget portion of the document is not only necessary for the legal proceeding, but it is very helpful to complete when contemplating the new expenses associated with living in a separate household from your spouse. Most people are in worse financial shape divorced than they were married because most Mississippians simply cannot enjoy the same standard of living maintaining two households. The current form of the financial statement can be a little confusing and can be completed several different ways. The important thing to be is consistent. Also, in some circumstances the 8.05 can be waived, but this should only be done if both parties truly know everything about the family’s income, assets and liabilities.
The Divorce Contract
The Marital Dissolution Agreement (aka Property Settlement Agreement or Child Custody and Property Settlement Agreement) is far and away the biggest and most important piece of paper you will sign if you get a divorce in Mississippi through agreement. It is a contract taking care of all the details concerning your new divorced life. It will essentially be incorporated by reference in the Final Judgment and become the law as it applies to you and your former spouse. It will provide for your freedom from the interference and control of your former spouse, dictate custody and visitation, provide for the continued financial support for your children, divide property and debts, provide for spousal support (if any) and include all of the necessary legalese. Simple PSA’s can be a few pages, but when businesses are being divided or there are other complex considerations, they can get pretty thick.
You can get a feel for one Here.
The Final Judgment
The Final Judgment is the court’s Order. It is the document legally negating your marital contract and relationship. It will reference the divorce contract and require you to fulfill all its terms and conditions. The consequence for not fulfilling an Order of this type is contempt of court that can entail imprisonment and other bad consequences. It is as important a document as a birth certificate, social security card, passport and the like.
You can see this simple form here.
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.
We Can Help You
Here is the way this works. If you would like to walk through a no fault divorce with us, 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 our being helpful. Then, we will schedule a time for you to talk to one or more of our attorneys to go over your situation.
FAQs related to No Fault Divorce
- Do I have to catch my spouse in the act to prove that they are having an affair?
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.
- Do I need a reason to get a divorce in Mississippi?
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.
- Does a mother always get custody of the children?
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.
- How is a business valued in Mississippi in a divorce?
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)
- How long does it take to get a divorce in Mississippi?
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.
- How much does a divorce cost?
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.
- How will the value of our property be determined?
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.
- If I get a divorce, do I have to go to trial?
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.”
- If my spouse is at fault for the divorce, do I get to keep everything?
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.
- In Mississippi, if I have sex with my spouse after I find out about an affair have I lost my ground for divorce?
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.
- What are my rights during the period of time between separation and the entry of a court order?
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.”
- What are the Ferguson Factors?
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.
- What is a “standard” visitation arrangement?
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.
- What is a guardian ad litem?
An attorney the court appoints to represent the best interests of a child in a divorce or parental rights and responsibilities case.
- What is lump sum alimony?
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.
- What is permanent alimony?
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.
- What is physical custody?
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.
- What is rehabilitative alimony?
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.
- What is reimbursement alimony?
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.
- What makes property marital or non-marital?
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.
- What should I do if I suspect that my spouse is having an affair?
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.
- When my child turns 12, can she choose where she wants to live?
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.
- Why do you talk so much about energy when it comes to marital property?
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.
- Will I have to sell my business if I get a divorce?
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.
Forms and downloads related to No Fault Divorce
- Stay or Go EBook (766.00 KB)
- Divorce in Mississippi EBook (265.00 KB)
- Contested Grounds MCA 93-5-1 (132.00 KB)
- Cruelty Worksheet (11.00 KB)
- Divorce Grief Cycle (164.00 KB)
- Domestic Violence Shelters (269.00 KB)
- Financial Declaration (53.00 KB)
- Form Final Judgment of Divorce (51.00 KB)
- Form Irreconcilable Differences Complaint (24.00 KB)
- Glossary of Legal Terms (995.00 KB)