Divorce Law in Mississippi: Essential Facts and Procedure

What Are the Grounds for Divorce in Mississippi?

A divorce in Mississippi can be either a fault or no-fault divorce. A fault divorce is one in which the spouse filing for divorce alleges some type of marital misconduct on the part of the defendant spouse. The types of fault alleged by the spouse filing for divorce generally fall into one of the following categories:
In a no-fault divorce, the spouse filing for divorce does not allege any type of marital misconduct on the part of the defendant spouse. The only basis for a no-fault divorce is irreconcilable differences , which is a ground for divorce that is recognized in Mississippi statute. Irreconcilable differences is described in the statute as "a situation in which there has been such a complete and irrevocable breakdown of the marriage relationship that the prospect of reconciliation is hopeless." Spouses can, and often do, agree to file for divorce on the basis of irreconcilable differences, reserving all other issues to be resolved at a later date. If they have children, they may be required to attend a co-parenting seminar. However, proceedings for a divorce on the basis of irreconcilable differences are limited, in that they cannot be heard until sixty days after the date of the commencement of an action for divorce in accordance with Mississippi Code Annotated Section 93-5-203.

Residency Requirement to File in Mississippi

In Mississippi, to file for divorce, you must satisfy the residency requirements as set forth in Mississippi law. These laws dictate that at least one spouse must have been a resident of the state for at least 6 months before the filing of a divorce petition. In most cases, one spouse will file for divorce in a circuit court located in the county where they reside. If there are no children involved, the residency requirement can be met by either spouse residing in the county where the divorce is filed, regardless of who is filing.
In Mississippi, several different types of divorce are allowed, including fault-based and no-fault divorce grounds. The most common fault grounds for divorce in the state include adultery, desertion, alcoholism or drug addiction, bigamy, impotency, and imprisonment with hard labor for more than one year. No-fault divorce grounds are available on the basis of irreconcilable differences.
While residency requirements apply to all divorces except in certain specific circumstances, the six-month timeframe before filing requires some exceptions. For example, if the other spouse has committed adultery, and this is the basis for the divorce, there is no residency requirement. A party may file for divorce on these statutory grounds immediately.

Mississippi Division of Property and Assets between Spouses

The law in Mississippi recognizes two categories of property in a divorce case: marital and non-marital property. Determining what constitutes marital or non-marital property can be complicated. Each party generally retains all property identified as non-marital property. When the court determines that property is marital, the parties should present evidence identifying the value to the court.
Similarly, the manner in which the court divides marital property can be complicated. The court starts by presuming that each spouse is entitled to fifty percent of the marital estate after the court has determined what property constitutes the marital estate. The effect is that most property is divided evenly.
Because the law in Mississippi holds that assets acquired during the marriage are marital, property belonging to one spouse may be subject to equitable distribution even if the asset appears to belong exclusively to that spouse. For example, a house acquired during the marriage but deeded solely to one spouse may still be divided between the spouses in a divorce case. On the other hand, the law in Mississippi does not recognize many forms of premarital property as marital property subject to division. For example, property owned by one spouse prior to the marriage is presumptively non-marital property.
In Mississippi cases, the following factors are considered by the trial court when dividing the property:
The trial court has a lot of discretion when dividing property in a Mississippi divorce case. Despite this broad power, the trial court can’t make divisions that are simply unfair. Any property distribution must be "equitable" as defined by the trial court.

Child Custody and Support in Mississippi

When determining child custody and support in Mississippi, the court’s primary concern is to do whatever is in the best interest of your child and the parents’ needs are secondary to this. Joint custody is generally granted, even in cases involving domestic violence. Equal custody, however, is very rare and is usually only granted in those cases where the parents have been living together for an extended period of time and have jointly raised the child.
When determining child custody and visitation orders, they will consider several factors pertaining to the welfare of the child. These factors include the following: The relationship between the child and his/her parents and siblings. Any preference shown by the child, provided the child is of sufficient age to express a preference. The child’s involvement in various community, church, and school activities. The employment and lifestyle of each of the parents. The age and health of the parents. The effect that the award of custody will have on the child’s chance of maintaining a sound and healthy environment. Any other factors that the judge deems to be material. Child support awards in Mississippi are based on the income shares method, which essentially means that the amount of support is closely related to the income levels of the parents. Of course, in cases of parents who share custody of the child, the amounts awarded to each parent may vary based on factors such as the level of income of each parent.
Mississippi law has a current support chart that is used to determine what portion of a child’s support a parent should pay. It also has a formula for determining deviations from that chart. The amount of support varies depending on whether the parents are living together (the parties’ gross income), the non-custodial parent’s income when the parents are not living together, and the number of children being supported. Generally speaking, the number of children in the family and the parents’ income affects the amount of support that is paid. For example, if the parents have one child, the chart allows the custodial parent to spend 21% of his or her adjusted gross income to support the child. For two children, the appropriate amount is 29% of the custodial parent’s adjusted gross income.

Spousal Support/Alimony in Mississippi

When a spouse is not self-sufficient (i.e. lacks sufficient income on their own to pay for their living expenses) and is in an appropriate situation to receive support from their spouse, a court may make an award of spousal support/alimony.
If there is a Request for Relief for alimony contained in the Complaint, then that must also be filed contemporaneously with a financial statement . This gives the Judge and the other side information about what your monthly income and expenses are so the court can make an appropriate award based on the evidence presented and the factors listed in Miss. Code § 91-5-1.
The Miss. Code § 91-5-1 factors include: The court will hear the relevant testimony and receive evidence, and then determine whether to make an award. If it does, the court must explain the monthly amount to the parties and the grounds for the amount.

Process to File a Divorce in Mississippi

The procedure for filing for divorce in Mississippi involves a number of steps that are outlined below.

• The first step is to hire an attorney. An experienced attorney will make the divorce process less painful and will work to make sure you are not taken advantage of by your spouse during the divorce process.
• Once you have retained an attorney, he or she will assist you in preparing and filing a Complaint for Divorce with the Chancery Clerk in the County where you or your spouse reside. If the Complaint is filed improperly or contains insufficient information, the case will be dismissed by the Chancery Court. Fortunately, once the divorce is filed, it usually is not dismissed unless there is no hope of the parties reconciling.
• A Rule 81 Summons, along with the Complaint for Divorce, must be served on the non-filing party, unless the case is uncontested. In other words, if the parties are still living together and living under the same roof, and they have not agreed that divorce is the only option, then you may file for an Uncontested Divorce by filing a Joint Complaint for Divorce. In such a situation, neither party needs to be served. If service is required, process can be served on the non-filing party or his or her attorney. However, individuals cannot serve divorce papers on their spouse. Only police officers, process servers, or individuals who have been hired or retained and compensated for the services of process are legally qualified to serve as the process server in divorce cases.
• After receiving a copy of the Summons and the Complaint for Divorce, the non-filing party has 30 calendar days to respond in writing (unless process did not go through proper channels, in which case it is more complicated) or 60 calendar days to respond in the case of an Uncontested Divorce. The time allowed for responding is set forth in Rule 12 of the Mississippi Rules of Civil Procedure.
• Within 30 calendar days after the entry of a judgment of divorce, the parties must file a copy of their Settlement Agreement, along with pleadings that set forth what property was identified and divided in the divorce proceedings.
• After the parties have resolved all of their property issues and/or parental rights and duties issues, which are determined by the Court and put down in a Settlement Agreement, the Judgment for Divorce will be entered, making the divorce official. If the parties are in agreement on all matters, then no trial is necessary. If, however, the parties cannot resolve all issues amicably, the Court will try to mediate the issues in order to reduce litigation costs and reach a conclusion that saves everyone time and money.

The entire divorce process can take up to six months to complete. Many people choose to represent themselves when filing for Divorce, which is more commonly called "Pro Se". While doing this can save some legal fees, you must ask yourself how important the issues are that are in contention with your spouse. If there is a lot at stake, then you will need to hire an attorney to assist you in getting what you deserve in the divorce.
When you get an attorney, you will receive information during the beginning process on what all must be done, when it must be done, and what information will be needed to proceed.

How Divorce Will Affect Retirement Benefits

Understandably, retirement benefits are often a major concern during a divorce, as many people would like to know whether they are entitled to a portion of their spouse’s pension plan, retirement accounts, and/or other forms of property that their spouse may have accumulated during the marriage. In general, if there is sufficient property in addition to the retirement account(s) then the spouse can keep his or her own retirement account funds even if the account was funded in part, or in whole, by his or her spouse during the marriage. However, this does not necessarily mean that the retirement account will be protected from a post-judgment action if any of the retirement funds were used to pay for an expense (or in some cases a debt) related to the parties’ children.
Retirement plans such as pensions and 401(k)s can often be complicated in the manner in which they accrue benefits, the amount of those benefits, and the manner in which a receiving spouse obtains those benefits. These plans may have special withdrawal rules which trigger various tax penalties if a spouse tries to obtain their share of a retirement account and/or pension prior to the time that the retirement plan allows. Most commonly, a person can withdraw from his 401(k) plan if he or she is facing a financial hardship which is in most circumstances only possible with the permission of the plan owner. Therefore, unless the retirement plan in question is characterized as a qualified domestic relations order (QDRO), and is divided in a manner specified by the QDRO, such restrictions can limit the financial remedies available to a spouse in receiving his or her equitable share of the funds in their spouse’s retirement account. Similarly, a pension may be difficult to collect from unless it is characterized as a QDRO because there are equivalent rules to Medicaid and Social Security in place which restrict benefits from being paid prior to a certain date.
To illustrate, assume that a former wife is entitled to one half of a former husband’s future monthly military retirement benefits in the amount of $600.00. The monthly payment amount is based on a percentage of the former husband’s present monthly retirement benefits, and that percentage can not change as a result of the divorce. Assuming that the former husband’s military retirement benefits will commence at the age of fifty-five, and his present monthly retirement benefits are $1,000.00, the former wife’s interest in the military retirement benefits taken separately from the former husband’s retirement account is $300.00 per month. However, since the former husband’s retirement benefits will not vest until he turns fifty-five, assuming that the retired former husband lives to age seventy-five, the total amount of military retirement benefits that the former wife may be entitled to receive CAVEATED to the issue of whether the legislation is changed to increase his military retirement benefits or whether the former husband keeps serving to increase his benefits.

Additional Legal Resources and Assistance

In addition to seeking guidance from an experienced Mississippi divorce attorney, several other resources and support systems may help you navigate the divorce process. Legal Aid Mississippi provides free legal aid by income to those in need and may be an option if you cannot afford an attorney . Mediators, many of whom are attorneys, may also help you and your spouse mediate certain aspects of the divorce, keeping the next steps private while reducing costs. For assistance with children, a list of family therapist contacts in the area may help. Families can also utilize support groups for advice on how to survive the divorce process and already separated or divorced individuals who can relate to your situation.