The decision to divorce your spouse is a heavy decision that will change many aspects of your life. But ending a marriage is not the end of your life or even the end of your family. Divorce is an opportunity to reset your life and reshape your future. When you have questions about divorcing your spouse, contact Carmody, Stewart, & Mixon to talk with a compassionate family law attorney.Two Types of Divorce
In Mississippi, there are two types of divorce: irreconcilable differences divorce and fault-based divorce.
To get a divorce on the grounds of irreconcilable differences, both spouses must agree to the divorce. Neither spouse needs to prove the other is “at fault” for the breakdown of the marriage, for this reason, irreconcilable differences divorces are often called “no fault” divorces. If both spouses agree to the divorce, the custody and maintenance of any children from the marriage, and the division of property, a divorce can be granted 60 days after filing the petition.The agreement between the parties will be incorporated into the divorce decree. If both spouses agree to the divorce but cannot agree on the custody and maintenance of any children from the marriage, or the division of property, the parties may, by agreement, permit the Chancery Court judge to decide the issues on which the parties cannot agree. All decisions by the chancellor are binding on the parties but are still modifiable by court order following the divorce decree.
Alternatively, when both spouses do not agree to an irreconcilable differences divorce, the only way to get a divorce in Mississippi is to prove one of twelve fault grounds. Mississippi is one of only two states that do not allow one spouse to end the marriage without the consent of the other spouse.
The twelve fault-based grounds for divorce in Mississippi are:
- Natural impotency
- Being sentenced to a penitentiary without a pardon
- Willful, continued, and obstinate desertion for one year or longer
- Habitual drunkenness
- Habitual drug use
- Habitual cruel and inhuman treatment, including domestic violence
- Mental illness at the time of marriage that was unknown by the complaining spouse
- Marriage to another person at the time of the current marriage
- Pregnancy by another man that is unknown to the husband at the time of the marriage
- Incurable mental illness
Having a fault ground for ending your divorce allows you to end your marriage without the consent of your spouse. A divorce based on fault grounds may impact the property distribution of the party found to be at fault for the breakdown of the marriage, but it does not always. Oftentimes, a person will allege a fault ground for divorce and also irreconcilable differences for divorce when they file - what starts as a fault based divorce will generally resolve itself as irreconcilable differences. This is because both spouses tend to get what they want from the marriage when they can reach a settlement together instead of relying on a finding by the chancellor.
Whether you need a fault-based divorce or an irreconcilable differences divorce, the family law attorneys at Carmody, Stewart, & Mixon are ready to walk you through the court process of building your new life. Our attorneys will work closely with you to advocate for a custody schedule and property distribution arrangement that will allow you to put your best foot forward. Call our office today to discuss your situation and the options available to you.Defenses to Fault Based Divorce
If your spouse has served you with papers for a fault-based divorce, there may be defenses available to you. It’s important to contact a family law attorney today to defend against the allegations and protect your time with your children and your assets. Even though you have been sued for a fault-based divorce, you can choose to settle with your spouse for an irreconcilable differences divorce. Call our office to discuss your case and how we can help you.Annulment
A divorce is the dissolution of a validly formed marriage. An annulment is the voiding of an invalidly formed marriage, as the marriage never existed. The Mississippi legislature has set out specific grounds for annulment.
- Bigamy at the time of marriage
- Incurable impotency or inability to engage in intercourse
- Mental illness or incompetence
- Pregnancy of the wife by another
- Underage spouses
- Lack of consent
- Failure to obtain a marriage license without subsequent cohabitation
In some rare cases, a marriage may be annulled by a third party but in most cases, the marriage can only be annulled by one of the spouses in the marriage. Children born into a marriage that is annulled still maintain their legitimacy and parentage, unless the marriage is annulled due to the spouses being related by a prohibited degree of kinship (incest). An annulled marriage is not subject to the same requirements of property distribution as a marriage dissolved by divorce. Likewise, parties to an annulled marriage are not eligible for spousal support. If you have questions about annulment, call our office today to speak with a knowledgeable family law attorney.Divorce Requirements
Residency: To file for divorce in Mississippi, at least one spouse in an irreconcilable differences divorce, or the spouse filing for divorce in a fault-based divorce, must be a resident of the state for at least six months. Certain requirements must be met for the chancery court to issue a binding order distributing marital property and setting child custody if the defending spouse in a fault-based divorce does not live in the state of Mississippi.
Where is my divorce petition filed?: The petition for divorce must be filed in the chancery court of the county where at least one spouse has resided for the last six months.
Waiting period: An irreconcilable differences divorce cannot be granted until sixty days have passed from the date of filing the petition. A fault-based divorce or irreconcilable differences divorce with contested issues cannot be granted until after a trial on the issues.
Does my spouse have to be at court?: Both parties must have notice of the divorce proceeding and have the opportunity to appear and defend against the allegations. In an irreconcilable differences divorce, both spouses must appear before the chancellor. In a fault-based divorce, if the defending spouse does not appear after having been properly served with notice, the petitioning spouse must still prove the fault ground for the divorce to be granted.
Consent: In an irreconcilable differences divorce, both spouses must sign an affidavit stating they consent to the dissolution of the marriage. Consent must be given voluntarily, the chancellor will not grant the divorce if there is evidence a spouse is being forced or blackmailed into the divorce. Because consent must be voluntary, it may also be withdrawn. If consent is withdrawn, there must be a fault ground for divorce or the divorce cannot be granted.
Evidence: Each fault ground is unique, just like each marriage is unique. The evidence needed for each fault ground is different and the facts of the situation make each case vary. Call our office today to discuss how you can start putting together information to receive a divorce based on a fault ground.
Divorce can be a scary and emotionally charged time in your life, but it can also be a gateway to new opportunities and happiness. Divorce may not be the right choice for you, but if you’re considering a divorce or have already decided on a divorce, call Carmody, Stewart, & Mixon today to discuss your options and see how we can help you start the next chapter for you and your family.