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Divorce in Mississippi
The Legal Process, Your Rights, and What to Expect
By Connie M. Smith, Jon H. Powell Addicus Books, Inc.
Copyright © 2014 Connie M. Smith and Jon H. Powell
All rights reserved.
ISBN: 978-1-940495-75-0
CHAPTER 1
Understanding the Divorce Process
Divorce is a scary word. What other word can you think of that means both "liberation" and "loss". Many emotions surface during divorce, sometimes daily. This is a stressful period when uncertainty is the rule and not the exception. How will you divide your possessions? Who will get custody of the children? How will you separate one household into two households when you and your spouse were struggling to make ends meet together? What are people saying behind your back? What is your soon-to-be-ex-spouse telling others about you? All of this creates stress ... and anger ... and emotions that you can't seem to control — and you haven't even begun the divorce process.
What is the divorce process? How long will the divorce last? How much will the divorce cost? What interaction will I have with my spouse during the divorce? What embarrassing things will I have to tell my attorney? Will this be told in court? What will happen at court? Will my spouse's attorney yell at me in court?
If you can identify with any of these thoughts, you're human. Hopefully, this chapter will answer some of the main questions that you have about the divorce process.
1.1 What is my first step?
Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation.
Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce, your spouse might be.
Ask what documents you should bring to your initial consultation. Make a list of your questions to bring to your first meeting. Also, start making plans for how you will pay your attorney to begin work on your case.
1.2 Must I have an attorney to get a divorce in Mississippi?
No. However, if your case involves children, alimony, significant property, or debts, you should avoid proceeding on your own.
A person who represents himself in a legal matter is referred to as being pro se (pronounced pro-say), meaning "on one's own." If you are considering proceeding without an attorney, at a minimum you should have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations of which you are unaware. Meeting with a lawyer can help you decide whether to proceed on your own.
1.3 Can one lawyer represent both of us in our divorce if we agree on everything?
No. In Mississippi, one attorney cannot represent both spouses in a divorce. This is a conflict of interest. An attorney can only represent one spouse in a divorce. Therefore, the unrepresented spouse must either hire his own attorney or go unrepresented in the divorce. If the unrepresented spouse remains unrepresented, he will likely be required to sign a document that has language acknowledging that he is unrepresented and has received no legal advice from his spouse's attorney except to obtain independent legal representation of his own.
1.4 My spouse and I both want our divorce to be amicable. How can we keep it that way?
You and your spouse are to be commended for your willingness to cooperate while focusing on moving through the divorce process. This willingness to work together not only will save time and money and is likely to result in an outcome that you are both satisfied with, but it will also preserve a relationship that will be amicable after the divorce is finalized — a goal that should always be strived for when there are children to be raised after the divorce.
Find a lawyer who understands your goal to reach a settlement and encourage your spouse to do the same. Cooperate with the prompt exchange of information. Then ask your attorney about the options of mediation and negotiation for reaching an agreement. Even if you are not able to settle all of the issues in your divorce, these actions can increase the likelihood of agreement on many of the terms of your divorce decree.
1.5 If we both want a divorce, does it matter who files first?
It depends. In the eyes of the court, the plaintiff (the party who files the complaint initiating the legal process of the divorce) and the defendant (the other spouse) are not seen differently by virtue of which party filed first.
Your attorney may advise you to file first or to wait until your spouse files, depending upon the overall strategy for your case and your circumstances. For example, if there is a concern that your spouse will begin transferring assets upon learning about your plans for divorce, your attorney might advise you to seek a temporary restraining order to protect against such an action, without giving prior notice to your spouse. However, if you are separated from your spouse but have an acceptable temporary arrangement, your attorney may counsel you to wait for your spouse to file.
Allow your attorney to assist you in making the decision about whether and when to initiate the legal process by filing a complaint for divorce.
1.6 Do I have to get divorced in the same state I married in?
No. Regardless of where you were married, you may seek a divorce in Mississippi if you meet the jurisdictional requirement of residency.
1.7 How long do I have to have lived in Mississippi to get a divorce in the state?
Either you or your spouse must have been a resident of Mississippi for at least six months to meet the residency requirement for a divorce in Mississippi.
If neither party meets the residency requirement, other legal options are available for your protection. If you do not meet the six-month residency requirement, talk to your attorney about options such as a petition for a custody and support order, or a protection order.
1.8 Is Mississippi a no-fault state or do I need grounds for a divorce?
Mississippi is both a "fault" ground state and a "no-fault" state. This means that you can get a divorce from your spouse without their consent if you can prove one of the twelve "fault" grounds against them. If you cannot prove that you are entitled to a divorce on a fault ground, then the only way to get a divorce in Mississippi is with the consent of your spouse on the "no-fault" ground of irreconcilable differences.
As referred to in this book, a "fault" ground is a basis for divorce that you are relying upon in seeking a divorce based on one of the twelve statutory marital fault grounds, such as adultery, desertion, or habitual cruel and inhuman treatment. On the other hand, "no-fault" is a divorce in which both parties consent to the divorce being granted. "Fault" and "no-fault" divorce is discussed more thoroughly in chapter 4.
1.9 Can I divorce my spouse in Mississippi if he or she lives in another state?
Yes. However, in a fault grounds divorce the court may have no jurisdiction to divide marital assets without the out-of-state spouse's consent to jurisdiction by the Mississippi court. In other words, for the Mississippi court to be granted authority to divide the marital assets, the out-of-state spouse will have to agree in writing to allow the Mississippi court to divide the assets.
1.10 I just moved to a different county. Do I have to file the divorce in the county where my spouse lives?
If the divorce is a no-fault divorce, you may file your divorce complaint either in the county where you reside or in the county where your spouse resides. If the divorce is a fault grounds divorce (and assuming you are the party filing for divorce) then you must file the divorce in the county where your spouse resides.
1.11 How can I divorce my spouse when I don't know where my spouse lives now?
Mississippi law allows you to proceed with a fault grounds divorce even if you do not know the current address of your spouse. You cannot get a no-fault divorce in Mississippi when you do not know how to contact your spouse because a "no fault" divorce in Mississippi requires your spouse's consent.
First, take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse's whereabouts. Utilize resources on the Internet that are designed to help locate people. You must make a "diligent search and inquiry" to locate your spouse. Then, let your attorney know of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse's last known address, as well as any work address or other address where this person may be found. If you and your attorney cannot locate your spouse, it is possible to proceed with the fault grounds divorce by giving notice through publication in a newspaper. This means that your attorney can have a summons issued for your spouse by the court and printed in the legal notices section of the newspaper in your county. After the newspaper has run the publication once a week for three consecutive weeks, your spouse is deemed to have been served with the summons and complaint.
1.12 I want to get divorced in my Indian tribal court. What do I need to know?
Each tribal court has its own laws governing divorce. Requirements for residency, grounds for divorce, and the laws regarding property, alimony, children and can vary substantially from state law. Contact an attorney who is knowledgeable about the law in your tribal court for legal advice on pursuing a divorce in your tribal court or on the requirements for recording a divorce obtained in state court with the clerk of the tribal court.
1.13 Is there a waiting period for a divorce in Mississippi?
For a no-fault divorce, Mississippi has a mandatory sixty-day waiting period. This waiting period begins on the day the complaint for divorce is filed with the chancery clerk.
For a fault grounds divorce, there is no defined waiting period. However, the process of a fault grounds divorce will likely be much longer than the no-fault process.
1.14 What is a divorce complaint?
A divorce complaint, also referred to as a complaint for divorce, is a document signed by the person filing for divorce and filed with the clerk of the court to initiate the divorce process. Formerly referred to as a "bill" or "petition," the complaint will set forth in very general terms what the plaintiff is asking the court to order.
1.15 My spouse said she filed for divorce last week, but my lawyer says there's nothing on file at the courthouse. What does it mean to "file for divorce?"
When lawyers use the term "filing" they are ordinarily referring to filing a legal document at the courthouse, such as delivering a complaint for divorce to the chancery clerk. Sometimes a person who has hired a lawyer to begin a divorce action uses the phrase, "I've filed for divorce," although no papers have yet been taken to the courthouse to start the legal process. If the complaint has not been filed with the chancery clerk, your spouse is likely referring to beginning the divorce process by signing papers at their attorney's office.
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Excerpted from Divorce in Mississippi by Connie M. Smith, Jon H. Powell. Copyright © 2014 Connie M. Smith and Jon H. Powell. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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