How Do I get a divorce from my spouse?

A divorce is a total and absolute dissolving of the marital ties, releasing the husband and wife wholly from their matrimonial obligations. In Mississippi, there are two approaches in order for one to obtain a divorce.

The first approach is known as a non-contested or a no-fault divorce. The statutory language of Mississippi defines it as a divorce based on the grounds of "irreconcilable differences". This procedure is used by persons who agree upon all issues of divorce, meaning they agree that they want to dissolve their marriage and also reach an agreement concerning all issues of child support, child custody, visitation, and property division. The agreement will then be specified in their Property Settlement Agreement (PSA). In order to file a complaint for divorce on the grounds of irreconcilable differences in Mississippi, the parties must first meet the residency requirements of Mississippi. One of the parties must be an actual bona fide resident residing within this state for at least six (6) months prior to the commencement of the divorce action. Next, a complaint for divorce is filed in the Chancery court of the county in which one of them resides. The complaint for divorce on the grounds of irreconcilable differences must be on file for at least sixty (60) days before the matter is finally presented to the court by the Chancellor. If the Chancellor finds that the provisions of the PSA are adequate and sufficient, the agreement may be incorporated in the judgment. If the parties are unable to agree upon adequate and sufficient provisions for the PSA, they may consent to a divorce on the grounds of irreconcilable differences and permit the court to decide the issues upon which they cannot agree.

The second approach for obtaining a divorce in Mississippi is the fault-based divorce or "contested" divorce. In order to file a complaint for divorce, the parties must first meet the residency requirements of Mississippi. One of the parties must be an actual bona fide resident residing within this state for at least six (6) months prior to the commencement of the divorce action.

Next, the plaintiff, the party who initiates the divorce or who files a complaint for divorce, must allege grounds for his or her divorce. Grounds are the basis or reason why the plaintiff wants a divorce from the defendant, the one against whom the complaint has been filed. In Mississippi there are twelve (12) fault grounds which must be specifically proven, and they are as follows:

1. NATURAL IMPOTENCY--must have existed before the marriage and the plaintiff must not have known of the impotent condition before the marriage; the one who is not impotent may file on this ground, not the impotent party.

2. ADULTERY--defined as sexual intercourse between two persons, one of whom is married to another. Actual sexual intercourse (direct evidence) does not have to be proven in order to obtain a divorce on the grounds of adultery due to the secretive nature of adulterous relationships. "In Mississippi one seeking a divorce on the grounds of adulterous activity must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination."

3. BEING SENTENCED TO ANY PENITENTIARY, AND NOT PARDONED BEFORE BEING SENT THERE--self-explained but, the one who is sent to the penitentiary may not allege this as a ground for divorce.

4. WILFUL, CONTINUED AND OBSTINATE DESERTION FOR THE SPACE OF ONE YEAR--The desertion must be without consent or connivance of the Plaintiff, without just cause, and with the intention of ending the marriage. The Plaintiff must show that he or she was willing and the Defendant was obstinate in refusing. The spouse must be gone for 365 consecutive days.

5. HABITUAL DRUNKENNESS--the Plaintiff must show clear and convincing evidence that the defending spouse is a habitual drunk at the time the divorce complaint is filed and that the drunken behavior has a negative impact on the marriage, making it impossible for the Defendant to perform the duties and responsibilities of the marital relationship. Habitual drunkenness is not the same as habitual drinking.

6. HABITUAL AND EXCESSIVE USE OF OPIUM, MORPHINE OR OTHER LIKE DRUG--The condition must exist when the complaint for divorce is filed. The Plaintiff must show by clear and convincing evidence that the defending spouse is a habitual drug user and that his conduct has a negative impact on the marital relationship and renders the Defendant irresponsible, reckless, unfit and unable to perform the duties of the marital relationship.

7. HABITUAL CRUEL AND INHUMAN TREATMENT--The charge of cruel and inhuman treatment against one spouse means something more than unkindness or rudeness or mere imcompatability or want of affection. "The conduct of the offending spouse must be so unkind as to be cruel, that is, so unreasonably harsh and severe as to be inhumane, so lacking in human qualities, so unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb or health. And finally, such conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity presents itself." "On the other hand, habitual ill-founded accusations, threats and malicious sarcasm, insults and verbal abuse may cause such mental suffering as to destroy health and endanger the life of an innocent spouse."

8. INSANITY OR IDIOCY AT THE TIME OF MARRIAGE, IF THE PARTY COMPLAINING DID NOT KNOW OF SUCH INFIRMITY--Self-explained; must be medically confirmed to exist.

9. MARRIAGE TO SOME OTHER PERSON AT THE TIME OF THE PRETENDED MARRIAGE BETWEEN THE PARTIES--Bigamy--A divorce on this ground may only be granted to the innocent spouse, not to the spouse who is married to two people at once.

10. PREGNANCY OF THE WIFE BY ANOTHER PERSON AT THE TIME OF THE MARRIAGE, IF THE HUSBAND DID NOT KNOW OF SUCH PREGNANCY. If the wife is pregnant by another man at the time of the marriage and the husband did not know of such pregnancy, the husband may be granted a divorce. But, if the husband knew of such pregnancy at the time of the marriage or if he accepted such pregnancy after learning of it, this ground will not stand. Additionally, a divorce on this ground may not be granted if the husband had sex with the wife prior to the marriage, even where the premarital pregnancy was unknown to the husband or where he was falsely led to believe that he was the father.

11. INCEST--Either party may have a divorce if they be related to each other within the degrees of kindred between whom marriage is prohibited by law.

12. INCURABLE INSANITY--The condition must arise after the marriage. The insane party must have been under the regular treatment for insanity, confined in an institution for the insane for the period of at least three years immediately before the filing of the divorce. No divorce will be granted because of insanity until after a thorough examination of the insane person by two physicians who are recognized authorities on mental diseases.

It is important to note that the Plaintiff--the complaining spouse, the party who files for the divorce--has the burden of proof, that is, he or she has to prove his or her grounds for divorce against the Defendant. Of course, the Defendant has an opportunity to provide his or her defense.

After the initial divorce complaint is filed, the Defendant will then file an Answer to the complaint, admitting or denying the allegations in the complaint which includes the grounds for divorce. The defendant may then file a counter-complaint against the Plaintiff. If the Defendant does file a counter-complaint, the Plaintiff must file an answer to that complaint, also admitting or denying the allegations of the Defendant's complaint.

After the filing of the complaints and answers, a trial date is usually set. In the meantime, the parties may participate in discovery which consists of pre-trial devices, like interrogatories, depositions, request for production of documents, and request for admissions, that can be used by one party to obtain facts and information about the case from the other party in order to assist the party's preparation for trial and in supporting his or her position.

Prior to the court's final decision, the parties may seek "temporary relief" from the court wherein the court imposes certain obligations on each party concerning property, finances and children pending the final outcome of the divorce.

If possible, talk with your spouse and see if you can reach an agreement that you both in fact want a divorce and if possible, an agreement regarding your children, finances and your personal property items. Next, the best you can, make an assessment and inventory of everything you own and what you owe. I don't mean count every pot and pan, etc.. But you should make a general listing of all major personal property items (houses, cars, boats, computer, etc.) as well as all your joint and individual debts and financial accounts (Cash, Retirement plans, IRA, CD's, Savings, Stocks, etc.). With a general inventory, your attorney will have a better understanding of your case before it starts.

If you and your spouse disagree or can not talk prior, you will also need to be prepared to tell your attorney why it is that you want a divorce from your spouse and bring to your appointment any information that will assist in proving your position. (See the grounds listed in this section previously).

Mississippi is an Equitable Division state which is the doctrine that refers to the authority of the courts to award property legally owned by one spouse to the other spouse, and recognizes that a non-working spouse's efforts contribute to the acquisition of the marital estate. Under this system, the marriage is viewed as a partnership contributing to the marital estate. In other words, property that was accumulated through the joint efforts and contributions of the parties will be fairly (not necessarily equally) divided between the parties. There is no automatic right to an equal division of jointly-accumulated property; the division is left to the discretion of the court. "Fairness" is the prevailing guideline.

Although there is no specific formula, there are a few guidelines that the Judge will look at to divide the property fairly: (1) substantial contribution to accumulation of property, including direct or indirect economic contributions, contributions to stability and harmony of marital and family relationships, and contributions to education, training or other accomplishment bearing on earning power of spouse accumulating assets; (2) degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets; (3) market value and emotional value of the assets subject to distribution; (4) the value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse; (5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution; (6) the extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties; (7) the needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and (8) any other factor which in equity should be considered.

When it comes to dividing your everyday "stuff" that you used to make a home together, it is easiest for you and your spouse to approach this together. It can be real easy or real difficult, depending on how you and your spouse handle it. It is best to "do it yourself". If you fail to decide for yourself and leave it to the court to decide, it could all be ordered SOLD and the proceeds divided according to the court's instruction. If you allow it, you can end up spending more money litigating this matter than the property is even worth.

Usually, this is the single largest asset you and your spouse own together. It is generally titled in both of your names and you both are responsible for the mortgage. Generally, one of you will live in the house and agree to pay the monthly note. At some point, the other party wants to recoup their equity out of the property and also to release their financial responsibility for the mortgage. It is best to disentangle yourselves jointly as soon as possible. If you both have a joint and financial interest, you may find yourself in disagreements about its general upkeep, maintenance, improvements, and indebtedness. As a result, you are still married when it comes to the house. You can get really creative when trying to settle this matter, and your attorney can provide some assistance.

Yes, Mississippi does recognize alimony. Whether or not it is awarded to an ex-spouse in a divorce is based on a case-by-case basis. There are three basic types: lump sum, periodic, and rehabilitative.

Periodic alimony is what is also known as permanent alimony. This is the most common type of alimony and the type that people think of when they think of the word alimony. Periodic alimony is derived from "the duty of the husband to support his wife. . . in the manner to which she has become accustomed, to the extent of his ability to pay." It terminates upon the remarriage of the receiving spouse or the death of the paying spouse. Further, it cannot be modified or terminated unless a party can demonstrate a material change in circumstances.

Rehabilitative alimony is an equitable mechanism which allows the party needing assistance to become self-supporting without becoming destitute in interim. It is modifiable, but is for a fixed period of time vesting as it accrues.

Lump sum alimony is a fixed and final dollar amount. It can be paid in one single "lump sum" payment or spread out over a period of time. It is unmodifiable and is not affected by the death or re-marriage of either party.

Sometimes the division of marital property can replace the monthly payment of alimony. There are also tax consequences and benefits to Alimony. Therefore, this too must be a factor considered when addressing this matter.

The legislature has established certain guidelines to assist the court in its determination. There is a rebuttable presumption that the following guidelines are applied:

The "adjusted gross income" is determined by statutory guidelines and not by the IRS guidelines.

Well, it depends. It depends on how much you and your spouse are able to agree and cooperate with one another. If you file a non-contested divorce, a Final Judgment of Divorce may be entered 60 days after the initial complaint was filed. This is by far the quickest.

If your divorce is contested and the Chancellor must decide any or all issues pursuant to a trial, the time will be based on how long it takes to gather all your facts, witnesses, documents, etc. which are necessary to present your case. It will also depend on the Court's calendar and docket. A contested divorce can drag on for months and even years. These usually take the longest and are the hardest to predict.

The Supreme Court of Mississippi has established several factors to be considered when determining who will receive custody of the children. The main factor is the best interest of the children, and the following factors establish which parent serves that best interest: (1) age of the child; (2) health and sex of the child; (3) a determination of the parent that has had the continuity of care prior to the separation; (4) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (5) the employment of the parent and responsibilities of that employment; (6) physical and mental health and age of the parents; (7) emotional ties of parent and child; (8) moral fitness of parents; (9) the home, school and community record of the child; (10) the preference of the child at the age sufficient to express a preference by law; (11) stability of home environment and employment of each parent; and (12) and other factors relevant to the parent-child relationship.

There are two types of child custody: legal custody and physical custody. Physical custody is when the children actually live with the parent. This parent is the custodial parent while the other parent is the non-custodial parent. Legal custody is the decision making authority that the parent has to make decisions about the children's health, welfare, and education.

This will also depend on many factors. It will depend on how many issues you and your spouse can agree on; how complex your affairs are; and quite frankly how unreasonable any party or his/her attorney may be.

An annulment is a formal court order stating that for some reason existing at the time of the "pretended"marriage, the marriage between the parties is invalid, and is void from the beginning. Therefore, the marriage, in a legal sense, never existed. The grounds for an annulment are as follows:

1. BIGAMY & INCEST--all incestuous and bigamous marriages are void, and a declaration of nullity may be obtained at the suit of either party.

2. INCURABLE IMPOTENCY--self-explained

3. INSANITY OR IDIOCY OF EITHER OR BOTH PARTIES--the suit must be brought within six months of the marriage.

4. FAILURE TO COMPLY WITH LICENSING REQUIREMENTS--this ground may be awarded to the parties when they failed to comply with the licensing requirements of marriage and the failure was not followed by cohabitation.

5. LACK OF CONSENT--when either of the parties to a marriage are incapable, due to lack of age or understanding, of consenting to any marriage, or who are incapable from physical causes of entering into the marriage state, or where the consent of either party was obtained by force or fraud--a suit for annulment under this ground must be brought within six months after the ground is or should have been discovered.

6. PREGNANCY OF THE WIFE BY ANOTHER PERSON, IF THE HUSBAND DID NOT KNOW OF SUCH PREGNANCY---a suit for annulment under this ground must be brought within six months after the ground is or should have been discovered.