Every divorce begins the same way: One person decides that they don't want to be married anymore. What happens after that can be smooth sailing, or a roller coaster ride for a family in the midst of a divorce.
Mississippi divorce laws are extensive, and they cover a number of things including how to dissolve a marriage and your property, alimony, child support, custody, and visitation. There are many considerations in ending a marriage that will affect you, your spouse, and your children forever. But, what happens first?
1. File for divorce. Every divorce starts with what is called a Complaint for Divorce. In the complaint, the party filing for divorce asks for what they want. Of course, they ask to be divorced and for whatever other relief they want, such as custody of the children, awarding them property, awarding them alimony, child support, returning their maiden name, temporary or emergency matters, and any other thing they want from the divorce.
The trick of the complaint is that if you don't ask for something, you can't get it. But, you don't have to be super specific in what you ask for. For example, say that you want the court to award you alimony. If you don't ask for alimony in your Complaint, you don't get it. However, you don't need to ask for something as specific as $230.15 in alimony each month. Also, if your spouse doesn't answer your Complaint, you can get whatever you asked for in the complaint by default. So, the drafting of the Complaint is important.
2. Serving the Complaint. After a Complaint is filed, it has to be delivered to the Defendant (the other spouse). There are rules to how to serve process, and there are different ways to serve different Defendants in a divorce. One common myth is that if you don't know where your spouse is, you can automatically just serve them in the local paper. That isn't true. There are steps that you have to take before you can serve with publication.
If service of process isn't accomplished, or if it isn't accomplished correctly, you can't move forward with your divorce.
When service is accomplished, there is a 30-day time frame to answer the Complaint for divorce. If YOU are the one that was served, you need to answer within 30 days or a default can be filed against you and your spouse can win all of the things they asked for in the divorce.
When an answer is filed, that begins the litigation process.
3. Find out information. The formal name for this is called discovery. If it is needed, a series of questions will be asked of either or both spouses, and those questions are answered under oath and considered to be testimony. Those questions can be asked in written form, by deposition, or both. Discovery isn't needed if both parties agree on the terms of the divorce; however, if there is going to be a trial, discovery is most often necessary.
4. Trial. Truthfully, most divorces don't get to this step. They are settled at some point before trial. If you get here, you've spent a lot of money so you need to be prepared. Keep in mind that whatever the judge decides in trial is the final word, so don't go to trial thinking that you will have an option to negotiate anything about your case once the judge rules. Going to trial never guarantees a certain outcome. Most people believe that once the Court hears their side of the story, they have a sure win. Don't count on that. The only certain outcome is one that you can agree upon with your spouse.
The steps above are generally what happens in a contested divorce, but that may not be your situation. In an Uncontested Divorce, things are different.
What Happens in an Uncontested Divorce?
You both agree to be divorced, and you both agree on how to separate your property and on how the children are going to be managed. What do you do now? Now, you file a complaint for divorce, and sign the necessary documents. In Mississippi, the only document you need is called a Property Settlement Agreement (PSA). That document covers all aspects of ending the marriage, even custody and visitation. When the statutory waiting period of 60 days has expired, the judge will approve your Property Settlement Agreement and sign off on your Final Judgment of Divorce and you can be divorced. A hearing is not required, but one of you may have to appear before the judge on what is called an “ex parte” day to have your PSA Approved and Judgment signed.
In some counties, a hearing is not required so long as the proper documents are submitted. Check with an attorney who regularly practices in your area on the process for an uncontested divorce.
What about A Contested Divorce?
There are two ways to be divorced in Mississippi: agree to be divorced because of irreconcilable differences, or allege grounds for divorce against your spouse in your Complaint for Divorce. The grounds for a contested divorce in Mississippi are:
· Natural impotency.
· Being sentenced to any penitentiary, and not pardoned before being sent there.
· Willful, continued and obstinate desertion for the space of one (1) year.
· Habitual drunkenness.
· Habitual and excessive use of opium, morphine or other like drug.
· Habitual cruel and inhuman treatment.
· Mental illness or mental retardation at the time of marriage, if the party complaining did not know of that infirmity.
· Marriage to some other person at the time of the pretended marriage between the parties.
· Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy.
· Either party may have a divorce if they are related to each other within the degrees of kindred between whom marriage is prohibited by law.
· Incurable mental illness.
Here’s why grounds for divorce are important: If you and your spouse don’t agree to be divorced, then grounds must be proven. This meant that you must prove to the Court that you are entitled to be divorced and you’ll need a witness to agree with your story.
For example, say that you believe that your spouse has committed adultery and you decide to file for divorce on that ground. If your spouse agrees to the divorce, then you can both be divorced on the grounds of irreconcilable differences. However, if your spouse does not want to be divorced, or for some reason contests, then you will have to prove that your spouse committed adultery. If you cannot prove with clear and convincing evidence that your spouse committed adultery, then you cannot prove your grounds for divorce and you aren’t entitled to a divorce. Yes, that means that you stay married. This is true for any one of the grounds for divorce.
How do you prove the grounds? Well, you'll need evidence. In a trial, your lawyer will need evidence to present that is more than hearsay. Make sure that you keep a copy of anything that you think may be helpful to prove your grounds and give it to your attorney.
How is our Property Divided?
Contrary to popular belief, everything is not a 50/50 split in a divorce. The court will divide your property based on what is fair. That is called equitable distribution. It may be fair to divide everything 50/50, but it may also be fair for one spouse to keep the house and the other spouse to keep all the retirement. There is no one size fit all answer in divorces, a divorce is truly specific to the two people who are in the marriage.
There’s a process to determining how the property is divided.
1. Identify the assets. This means that both spouses need to list the assets that they both own, to include bank accounts, business interests, real property (land), personal property, and anything else that may be an asset.
2. Categorize. This is where we determine whether the property is marital property or separate property, depending on when and how the property was acquired. Most often, property that each party had before the marriage or property that given to one spouse as a gift or an inheritance during the marriage is separate property. Property that was acquired by either party during the marriage is marital property. This includes retirement, homes, cars, and any type of valuables.
3. The next step is to determine the value of the property. This can be as easy as how much is in a retirement or bank account, or the fair market value of a home, or as hard as how much a multi-million dollar business started by the parties is worth.
4. Now, the assets must be divided. Everything must be disposed of by being awarded to one spouse or the other. Again, this can be as easy as dividing a bank account, or as hard as dividing the value of stocks and bonds.
What About Alimony?
There are four kinds of alimony that a spouse can be awarded in Mississippi. They are:
In permanent alimony, a spouse is awarded a periodic, or monthly, payment. This type of alimony generally ends upon the death of either spouse, or the remarriage of the recipient spouse. Also, this type of alimony may be increased, decreased, or terminated, after it is awarded. In making an award or permanent alimony, the Court considers these factors:
- income and expenses of the parties;
- health and earning capacities of the parties;
- needs of each party;
- obligations and assets of each party;
- length of the marriage;
- presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
- age of the parties;
- standard of living of the parties, both during the marriage and at the time of support determination;
- tax consequences of the spousal support order;
- fault or misconduct of the parties in giving rise to the divorce;
- wasteful dissipation of assets by either party; or
- any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.
As you can see, the award of permanent alimony is not made lightly. Many factors go into the decision of a court to award permanent alimony; it is not an arbitrary award. Also, permanent alimony is becoming more and more rare in divorces. So, this isn’t something that you should count on.
Rehabilitative alimony is temporary. It is considered a transitional amount that helps one spouse to become able to support themselves, without leaving them destitute in the meanwhile. This is typically to help a spouse who now needs to re-enter the workforce, or obtain a viable income. An award of rehabilitative alimony is made based on a consideration of the same factors above, in permanent alimony. The major difference is that rehabilitative alimony has an ending date. A Court can award rehabilitative alimony for months or years, but a definite ending date is known at the time of the award. This type of alimony can also be increased, decreased, or terminated before it is set to end, and also may end upon the remarriage or, perhaps, cohabitation of the receiving spouse.
Reimbursement alimony is provided to a spouse who has provided for or supported another spouse while they have completed school. These kinds of support can’t necessarily be monetized. For example, a husband who put himself at a disadvantage and worked to support a wife who attended dental school. This type of alimony is for a specific amount that become immediately use but may be paid in payments. It is not modifiable, and does not terminate upon death or remarriage.
Lump Sum Alimony
Lump sum alimony is a fixed, certain sum. It becomes due at the time of the award, and it can also be paid in payments. Unlike permanent alimony, it cannot be modified and it does not end upon death or remarriage. The Court considers these factors in awarding lump sum alimony:
o whether the spouse seeking lump sum alimony made a substantial contribution to the potential payor's accumulation of wealth;
o length of marriage;
o disparity between the parties' separate estates; and whether the spouse seeking lump sum alimony would lack financial security in the absence of an award of lump sum alimony.
Mississippi also provides for hybrid alimony, which is a combination of any of these versions of alimony. Hybrid alimony is specific to your facts and your case, which is why it is becoming more and more popular.
Alimony is always an important question in a divorce, so it is important that you understand how and what you are entitled to in your divorce. It can also be difficult to determine, so make sure that if alimony is an issue for you or your spouse, you select an attorney that is well-versed in this subject.
How is Custody Decided if we can't Agree?
There are custody factors that the court must consider in awarding custody in a divorce. They are called the Albright Factors, and they are as follows:
· age, health, and sex of the children;
· continuity of care;
· parenting skills and the willingness and capacity to provide primary child care;
· employment responsibilities of the parents;
· physical and mental health and age of the parents;
· moral fitness of the parents;
· emotional ties of the parents and children;
· home, school, and community records of the children;
· preference of children twelve years of age or older;
· stability of the home environment and employment of each parent; and
· other relevant factors in the parent-child relationship.
As you can see, the Court has to make a lot of considerations on all of the issues in your divorce. Very few, if any, issues are left up to the Court's sole discretion to be used without any guidance. You need guidance, as well. Searching this site is a great way to gain common knowledge on divorce laws in Mississippi and on how things work in divorce practice. Use it to prepare yourself for your own proceedings and to help in your discussions with the lawyer of your choice.
Links to helpful Mississippi Forms and Instructions
FREQUENTLY ASKED QUESTIONS ABOUT MS DIVORCE
+ When can I file for Divorce?
When you have lived in the State of Mississippi for 6 months, you are a resident and you can file for divorce in the county where you live. It doesn't matter how long you have been married, you can file for divorce at any time during your marriage.
+ How long does a divorce take?
A divorce in Mississippi has to be on file for at least 60 days. A contested divorce won't be over soon. Plan for a minimum of six months for the completion of a contested divorce.
+ Will I have to appear in court?
That depends. If you have an uncontested divorce and a signed property settlement agreement, you may not have to appear. Your attorney can appear to have your final documents signed, or even mail them in. If you have not settled your divorce, you will of course need to appear for trial.
+ Can I get temporary custody, child support or alimony?
Yes. You can ask for it in your original complaint, and have a hearing for any temporary matters that need to be addressed before a final divorce.
+ Do I have to hire a lawyer?
Some people do complete uncontested divorces on thier own, but Mississippi does not provide any official forms to assist you in doing so. Also, many forms sold on the internet are incorrect and do not have the proper language. If you decide to proceed on your own, you are held to the same standard as an attorney would be. If you have a contested divorce, you should definitely hire an attorney.
+ How much will this cost?
No one can determine how much a contested divorce will cost. However, there are some firms that do contested divorces for a flat fee. For some couples, divorce is not expensive, but for others it can be. Some factors depend on how many assets you have, how your spouse reacts to the divorce, who is hired by your spouse, whether experts will be needed, and mostly how agreeable the two of you will be.