Divorce

Divorce

A divorce terminates the bonds of matrimony. While pop artist Paul Simon says there is "fifty ways to leave your lover," Mississippi Law recognizes 13 grounds for divorce from your spouse.

1. What grounds can I use to obtain a divorce?
2. Do both parties have to agree to the divorce?
3. What if both parties agree the marriage is over and are able to agree on issues such as child custody, visitation, and support?
4. Can we agree to things and not include them in the agreed order?
5. What if both parties agree the marriage is over but are unable to agree on issues such as child custody, visitation, and support?
6. Where can the divorce petition be filed?
7. If I am unable to locate my spouse, can I still obtain a divorce?
8. If my spouse is personally served with process, what happens if he doesn't answer the complaint?
9. What other issue will or should the court rule on?
10. What factors will the court consider in determining custody of any minor children?
11. Is the court obligated to follow the preference expressed by the child?
12. How will visitation with the non-custodial parent be determined?
13. How will the amount of child support be decided and collected?
14. How long will obligor be required to pay child support?
15. Can the parties set a different period for termination of obligor's support obligation.?
16. If I am the non-custodial parent and my child moves in with me against the custodial parent's permission, can I stop making child support payments?
17. What happens if there is a change in circumstances effecting the minor children?
18. What is the non-custodial parent's right of access to records and information pertaining to minor children?
19. What is my recourse if the obligor quits or changes place of employment and child support is not paid?
20. What will happen to assets and debts of the parties?
21. Will I be able to keep my separate property and assets that I brought into the marriage?

What grounds can I use to obtain a divorce?

The injured party may decree divorces from the bonds of matrimony for the following reasons, to wit:

1. Natural impotency
2. Adultery
3. Being sentenced to any penitentiary, and not pardoned before being sent there,
4. Wilful, continued and obstinate desertion for the space of one year,
5. Habitual drunkenness,
6. Habitual and excessive use of opium, morphine or other like drugs,
7. Habitual cruel and inhuman treatment,
8. Insanity or idiocy at the time of marriage, if the party complaining did not know of such infirmity,
9. Marriage to another person at the time of the pretended marriage between the parties,
10. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of such pregnant,
11. If they are related to each other within the degrees of kindred between whom marriage is prohibited by law,
12. Incurable insanity and the defendant has been confined in an institution for the insane for a period of at least three years immediately preceding the commencement of the action, and
13. Irreconcilable Differences, but only upon the joint complaint of the husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process.

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Do both parties have to agree to the divorce?

No. The first 12 grounds are fault grounds. If the injured party can prove the alleged ground by substantial evidence a divorce can be obtained. This is called a contested divorce. However in order to obtain a divorce on the ground of Irreconcilable Differences both parties must agree the marriage cannot be salvaged.

All other issues can be submitted to the court for decision.

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What if both parties agree the marriage is over and are able to agree on issues such as child custody, visitation, and support?

If the parties agree the marriage is over and can agree on all issues, the divorce can be obtained on the ground of Irreconcilable Differences. A petition for divorce must be filed. An agreement making sufficient and adequate provisions for support and maintenance of any minor children, division of all property and indebtedness and any other issues must be signed by both parties. The court will review and must approve the terms of the agreement. The agreement is incorporated in the terms of the divorce. Irreconcilable Difference divorce petitions must be on file at the Chancery Clerk Office 60 days before the divorce can be granted.

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Can we agree to things and not include them in the agreed order?

Any agreements or understandings between the parties that are not included in the written property settlement agreement are not part of the court order and probably will not be enforceable.

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What if both parties agree the marriage is over and are unable to agree on issues such as child custody, visitation, and support?

If the parties agree the marriage is over but disagree on other issues, those issues can be submitted to the court for trial. Irreconcilable Difference divorce petitions must be on file 60 days before the divorce is granted.

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Where can the divorce petition be filed?

The divorce is filed in the chancery court of the county where the parties reside. If the parties have moved from the county they separated in, the case must be filed in the county where the defendant resides. If the defendant is a non-resident of the state the case will be filed in the county where the plaintiff resides. Plaintiff must have resided in the state 6 months prior to filing the petition for divorce.

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If I am unable to locate my spouse, can I still obtain a divorce?

Yes. Service of process can be had by running notice in the newspaper for the requisite period of time. However, the court will not have in personam jurisdiction of the defendant and can't render relief such as child support.

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If my spouse is personally served with process, what happens if he doesn't answer the complaint?

If the plaintiff has sufficient proof of the alleged grounds, the court can grant a divorce and grant full relief on all other issues raised in the divorce petition.

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What other issue will or should the court rule on?

The court may rule on custody, visitation, support, property division, alimony, medical and dental coverage on children, assets and debt distribution.

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What factors will the court consider in determining custody of any minor children?

Custody of any children will be determined based on the best interest of the children. Factors such as age of the parties, age of the children, health of the children and parents, moral standards of the parents, parenting skills of the parents, which parent provided primary parenting prior to the separation, the children's contact with the neighborhood, the work schedule of the parents and any preference expressed by a child age 12 or above, will be weighed to decide what is in the best interest of any children.

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Is the court obligated to follow the preference expressed by the child?

No. The child can express a preference but the the Chancellor makes the final decision.

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How will visitation with the non-custodial parent be determined?

The court will establish reasonable visitation for the non-custodial parent. Additionally normally the non-custodial parent will be granted reasonable visitation consisting of weekend visits, holidays, spring breaks, and summer visitation. Additionally, the parties will be encouraged to establish liberal contact between the child and non-custodial parent.

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How will the amount of child support be decided and collected?

Absent an agreement by the parties, the court will determine the amount of child support. However, the court will be guided by state statute and case law. The Mississippi Code establishes minimum guidelines for child support. Generally support is based on a certain percentage of the adjusted gross income of the non-custodial parent. For instance support for one child is 14%, for two children 20%, for three children 22%, for four children 24%, and five or more children 26% unless the judicial or administrative body awarding or modifying the child support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate. Additionally specific exceptions from the above guideline will apply in cases where obligor's income exceeds $50,000.00 annually. Also, other assets of obligor and expenses of the minor child will be factored into the decision. A withholding order will be entered. Child support will be deducted directly from obligor's wages unless obligee agrees, in writing, that the withholding order not go into effect immediately.

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How long will obligor be required to pay child support?

The duty of support of a child terminates upon the emancipation of the child. In Mississippi the age of majority is 21 years. However, the court may determine that emancipation has occurred when the child marries or discontinues full-time enrollment in school, and obtains full-time employment prior to attaining the age of twenty-one (21) years, or voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.

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Can the parties set a different period for termination of obligor's support obligation?

The parties can agree to extend obligor obligation beyond 21. However, they can't shorten the period to end before the child reaches 21.

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If I am the non-custodial parent and my child moves in with me against the custodial parent's permission, can I stop making child support payments?

It is necessary for you to petition the court for modification of the order to terminate the support obligation. Even if the custodial parent agrees, the original order should be modified immediately.

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What happens if there is a change in circumstances effecting the minor children?

Either party can petition for a modification of the court order. To obtain a modification there must be a show of a material change of circumstances that affects the best interest of the children.

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What is the non-custodial parent's right of access to records and information pertaining to minor children?

Access to records and information concerning a minor child, including but not limited to medical, dental and school records, shall not be denied to a parent because the parent is not the child's custodial parent if such parent's parental rights have not been terminated by adoption or by a termination of parental rights proceeding.

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What is my recourse if the obligor quits or changes place of employment and child support is not paid?

Both criminal and civil contempt action can be filed. All divorce decrees requires the obligor to keep the obligee and court informed of any change in their place of employment. Additionally, obligor drivers' licenses and other professional licenses can be suspended for failure to pay child support.

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What will happen to assets and debts of the parties?

The court will decide who will be responsible for the debts of the parties. A decision will be made depending on the income of the parties and the nature of the debts. Generally an equitable distribution will be made of the assets of the parties bearing in mind the nature of the assets.

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Will I be able to keep my separate property and assets that I brought into the marriage?

It will depend on the manner in which the property was used during the marriage. If the property was used just as marital property it is characterized as marital property and subject to division as assets accumulated during the marriage.

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