Currently, there are two ways to get a divorce in Mississippi, irreconcilable difference (AKA “no fault”) divorce, under Miss. Code. Ann. § 93-5-2 or an at-fault divorce, under Miss. Code. Ann. § 93-5-1. Currently under Mississippi Law there are 12 at-fault grounds for divorce:
- Desertion (willful abandonment of a marriage for at least 1 year without just cause, excuse, or intention to return)
- Natural impotency
- Insanity/Idiocy
- Pregnancy by another person at the time of marriage
- Adultery
- Incarceration
- Habitual Drunkenness
- Habitual Drug use
- Habitual cruel and inhuman treatment (conduct that endangers life, limb, or health , or creates a reasonable unnatural or infamous nature to make the marital relationship revolting to the innocent spouse)
- Bigamy
- Incest
- Incurable mental illness
To receive a divorce on any of these grounds the innocent spouse must prove the alleged ground through evidence and/or witness testimony. If the alleged ground is not proven, then a divorce cannot be granted.
Procedure and Waiting Period:
For either method of divorce, the parties MUST have been a resident of the State of Mississippi for at least 6 months before filing of divorce.
Irreconcilable differences:
With this form of divorce, both parties agree that the marital relationship is irreparable. Both parties must also agree to division of any and all assets, debts/liabilities, and if applicable child custody, support, and visitation.
Generally, both parties sign the Joint Complaint; although it can be filed by only one party and joined by the other party at a later date.
Once the Complaint for Divorce is filed, the waiting period of 60 days begins to run. At the conclusion of the 60 days, the Judge will hear the parties and a divorce can be granted.
The parties can agree to waive the U.C.C.R. 8.05 (financial disclosure statement) should each spouse assert whole knowledge of the other spouse’s financial status.
Generally the documents needed for an irreconcilable difference divorce are: 1) the Complaint, 2) the Property Settlement Agreement (PSA) which may also include custody related matters, and 3) the Order for Divorce.
At-Fault Divorce
With this form of divorce, one party MUST prove one of the above mentioned grounds for divorce. Proof can be shown from any form of evidence including testimony. Some forms of evidence include, but are not limited to, texts, emails, photos, witness testimony, or even admission of guilt by the offending party.
Once the Complaint has been filed and the offending party served, the offending party will have 30 days to answer the Complaint. After the 30 days has run then the party(s) can present the matter to the Court for its consideration. If the ground(s) alleged is proven, a divorce will be granted; however, if the ground(s) alleged is not proven, a divorce cannot be granted.
The parties can agree to waive the U.C.C.R. 8.05 (financial disclosure statement) cannot be waived in a fault-based divorce action and both parties must present said financial disclosure statement to the Court.
It must be noted that even after an At-Fault divorce is filed and has commenced the parties can agree to an irreconcilable difference divorce and with draw the fault allegations, as long as the ground of irreconcilable difference was alleged in the Complaint for Divorce. Therefore, I generally recommend to all of my clients that we allege irreconcilable differences in the alternative to any fault allegations made.
I hope that this post has been informative, and should you have any questions or need further information or assistance with a divorce related matter, please contact my office.