Divorce in Mississippi: The Legal Process, Your Rights, and What to Expect

By Connie M. Smith and Jon H. Powell

Providing accurate and objective information to help make the right decisions during a divorce in Mississippi, this guide provides answers to 360 queries such as What is the mediation process in Mississippi and is it required? How quickly can one get a divorce? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? How much will a divorce cost? and Will a spouse have to pay some or all attorney fees? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

• Language: English
• Publisher: Independent Publishers Group
• Release date: Jun 1, 2014
• ISBN: 9781940495750

Book preview

Authors

Introduction

At a time when your life can feel like it’s in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, driving up your fear and anxiety. But there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.

We wrote this book to give you a basic understanding of the divorce process in plain English, and not in lawyer speak. The format is designed to answer without fluff those questions most often asked. When you go to a lawyer for advice, you want answers—not a lot of legalease you don’t understand. We believe this book will answer for you some of the most common questions asked during a divorce.

Hopefully this book will lower your anxiety when your attorney starts talking about temporary hearings, discovery, depositions, or going to trial. It is designed to reduce your frustration about the length of the process by explaining each step and why each step is necessary. It will help you to begin preparing for what comes next. Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn’t prefer that?

We hope this book will be a valuable resource for you during this difficult time in your life. However, this book is no substitute for obtaining the advice of an experienced divorce attorney. No two divorces are the same. No two families are the same. Therefore, you should get advice from an attorney that is specific to your situation.

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.

Joint Complaint for Divorce

IN THE CHANCERY COURT OF________COUNTY, MISSISSIPPI

IN THE MATTER OF THE DISSOLUTION OF

THE MARRIAGE OF [HUSBAND’S NAME]

JOINT COMPLAINT FOR DIVORCE

COME NOW [Husband’s Name] and [Wife’s Name], co-plaintiffs in the above-styled and numbered cause, and file this their Joint Complaint for Divorce; and in support thereof, co-plaintiffs would respectfully show unto the Court the following facts, to-wit:

1. [Husband’s Name] and [Wife’s Name] are adult, bona fide, resident citizens of ______ County, Mississippi, and have been for more than six months next preceding the commencement of this suit. Co-plaintiffs are both members of the ______ race.

2. The Court has subject matter jurisdiction and, pursuant to the terms and provisions of Miss. Code Ann., § 93–5-11 (1972, as amended), is the proper venue for this action.

3. Co-plaintiffs were legally married in ______ County, Mississippi, on [Date of Marriage], and have continued to live together as husband and wife. [Husband/Wife] is currently living in the marital residence at ______, ______, ______ County, Mississippi. ______ (___) children were born to the union of co-plaintiffs, namely, [Child #1], a [son/daughter], born ______, 20 ______, and [Child #2], a [son/daughter], born ______ 20_. Wife is not now pregnant.

4. As grounds for divorce, co-plaintiffs allege irreconcilable differences in accordance with the terms and provisions of Miss. Code Ann. § 93-5-2 (1972, as amended).

5. Co-plaintiffs have, by written agreement, adequately and sufficiently settled all property rights between them, including all issues as to child custody, maintenance and support. The Marital Dissolution, Child Custody and Child Support Agreement entered into by the parties is being filed in this matter.

6. In compliance with Miss. Code Ann. Section 93-23-17, co-plaintiffs state as follows:

a. We have not participated as a party, witness or in any other capacity in any other litigation concerning the custody of the children named herein in this or any other state (IF SO, IDENTIFY THE COURT, THE CASE NUMBER, AND THE DATE OF THE CUSTODY DETERMINATION);

b We have no information of any custody proceeding concerning the child pending in a court of this or any other state (IF SO, IDENTIFY THE COURT, THE CASE NUMBER, AND THE DATE OF THE CUSTODY DETERMINATION);

c. We know of no other person not a party to the proceedings who has physical custody of the children named herein or who claims to have custody or visitation rights with respect to the child (IF SO, LIST THE NAMES AND ADDRESSES OF THESE PERSONS); and

d. That the children named herein currently reside, and have resided within the last five (5) years, at the following addresses:

(1) Current address is:

______________

______________

(2) _____________

______________

7. That co-plaintiffs pray that the Court will enter an appropriate order or orders necessary to restore [Wife’s Name] to her maiden name of ______________.

WHEREFORE, PREMISES CONSIDERED, co-plaintiffs, ________ and ________ pray that this Joint Complaint for Divorce be received and filed and that this Court, after such hearings as it may require and after having been duly advised in the premises, will render a judgment herein awarding unto the parties, each from the other, a full, final and absolute divorce. The parties further pray that the Marital Dissolution, Child Custody and Child Support Agreement of the parties be approved and incorporated in and made a part of this Court’s Judgment of Divorce.

And co-plaintiffs pray for all such other relief, general and specific, to which they may be entitled in the premises.

_______________________

HUSBAND’ S NAME

_______________________

WIFE’S NAME

_____________________________

SHOWSPOWELL PLLC

JON H. POWELL, MSB #_______

CONNIE M. SMITH, MSB #_______

2950 LAYFAIR DRIVE, SUITE 101

FLOWOOD, MISSISSIPPI 39232

TELEPHONE: [phone]

FACSIMILE: [phone]

ATTORNEYS FOR [HUSBAND’S NAME/WIFE’S NAME]

STATE OF MISSISSIPPI

COUNTY OF _______

This day personally appeared before me, the undersigned authority in and for the state and county aforesaid, within my jurisdiction, _____________, who, having been by me first duly sworn, stated on oath that the matters, facts, allegations and things contained and set forth in the above and foregoing Joint Complaint for Divorce are true and correct as therein stated.

_______________________

HUSBAND’S NAME

SWORN TO AND SUBSCRIBED before me, this the ___ day of _______, 20___.

_______________________

NOTARY PUBLIC

My commission expires:________

STATE OF MISSISSIPPI

COUNTY OF________

This day personally appeared before me, the undersigned authority in and for the state and county aforesaid, within my jurisdiction, ________, who, having been by me first duly sworn, stated on oath that the matters, facts, allegations and things contained and set forth in the above and foregoing Joint Complaint for Divorce are true and correct as therein stated.

_______________________

WIFE’S NAME

SWORN TO AND SUBSCRIBED before me, this the ____ day of _______, 20___.

_______________________

NOTARY PUBLIC

My commission expires:___________

1.16 Why should I contact an attorney right away if I have received divorce papers?

If your spouse has filed for divorce, it is important that you obtain legal advice as soon as possible. Even if you and your spouse are getting along, having independent legal counsel can help you make decisions now that could affect your divorce later.

After your spouse has filed for divorce, a temporary hearing can be scheduled at any time and a summons for that temporary hearing may be included in your divorce papers. A temporary hearing is a hearing in which a court can order relief that is temporary in nature and that lasts from the date of the temporary hearing until the court enters the final judgment of divorce. It is possible you will receive only a few days’ notice of a temporary hearing. Temporary hearings can set the tone for the entire divorce proceeding, such as granting one spouse temporary custody of the minor children and ordering the other spouse to pay temporary child support and temporary alimony. You will be better prepared for a temporary hearing if you have already retained an attorney.

Also, once you have been served with the summons and complaint, a written answer responding to your spouse’s divorce complaint must be filed with the court within thirty days. A summons is issued by the court to provide you notice that you are required to file an answer and to notify you of any scheduled court appearances. A complaint is the document signed by your spouse under oath and filed with the court that describes the relief which the filing spouse is asking the court grant.

1.17 Is there a way to avoid embarrassing my spouse and not have the sheriff serve him with the divorce papers at his workplace?

Talk to your lawyer about the option of having your spouse sign a document known as a waiver of service of process. The signing and