Mississippi divorce law provides specific rules and procedures for ending a marriage in the state. Whether couples agree to separate or one spouse wants to file for divorce against the other's wishes, understanding the legal requirements helps people navigate this difficult process. Mississippi recognizes both no-fault divorce based on agreement and fault-based divorce, where one spouse must prove wrongdoing.
Residency Requirements Under Mississippi Divorce Law
Before anyone can file for divorce in Mississippi, they must meet the state's residency requirement. At least one spouse must be a bona fide resident of Mississippi for at least six months before filing. This requirement ensures that Mississippi courts have the proper authority to grant the divorce.
For couples who both live in Mississippi, the divorce must be filed in the county where the defendant resides or where the defendant may be found, or in the county where the parties lived at the time of separation if the plaintiff still lives there. If the defendant is not a Mississippi resident, the plaintiff can file in their own county of residence.
Types of Divorce in Mississippi
Mississippi divorce law recognizes two main categories of divorce: irreconcilable differences and fault-based divorce. Each type follows different procedures and has different requirements.
Irreconcilable Differences Divorce
An irreconcilable differences divorce is Mississippi's no-fault option. This type of divorce requires both spouses to agree that the marriage is broken beyond repair and that they both want to end it. The couple must also agree on how to divide property, handle child custody and support, and address any alimony issues.
When filing on grounds of irreconcilable differences, Mississippi law requires a 60-day waiting period. The divorce cannot be finalized until at least 60 days have passed since filing the complaint. This waiting period gives couples time to reconsider and work out all necessary agreements.
The irreconcilable differences process is typically faster and less expensive than fault-based divorce because both parties cooperate. However, if the couple cannot agree on all terms, they cannot use this option and must pursue fault-based divorce instead.
Fault-Based Divorce
A fault-based divorce occurs when one spouse files against the other, alleging specific wrongdoing as grounds for divorce. Mississippi divorce law recognizes 12 different fault grounds. The spouse filing must prove the alleged fault by clear and convincing evidence.
Unlike irreconcilable differences, there is no waiting period for fault divorce. However, the defendant must receive notice at least 30 days before the divorce hearing. If one spouse is pregnant at the time of filing, the court will postpone the case until after the child is born to address child support and custody matters properly.
The 12 Fault Grounds for Divorce in Mississippi
Mississippi divorce law specifies exactly which types of wrongdoing qualify as grounds for divorce. Understanding these fault grounds helps people determine whether they have a valid basis to file for divorce.
Adultery
Adultery means voluntary sexual intercourse between a married person and someone other than their spouse. This includes sexual contact between persons of the same sex. Even a single act of adultery can be sufficient grounds for divorce, including adultery that occurs after the couple has separated.
Proving adultery requires clear and convincing evidence. Direct evidence includes admissions by the spouse or partner, photographs, or recordings. Circumstantial evidence must establish two elements: an adulterous inclination or infatuation with another person, and a reasonable opportunity to act on that inclination.
Phone records, computer files, witness testimony, and evidence of overnight stays together can help prove adultery. However, if the innocent spouse continues marital relations after discovering the infidelity, this may constitute condonation (forgiveness) and serve as a defense.
Habitual Cruel and Inhuman Treatment
Habitual, cruel, and inhuman treatment is the most common fallback ground when other specific grounds don't apply. This ground requires conduct that endangers life, limb, or health, creates a reasonable fear of such danger, or is so unnatural and infamous that it makes the marriage revolting to the innocent spouse.
The cruelty must be habitual, meaning a pattern of behavior rather than isolated incidents. However, a single act of severe physical violence may be sufficient. The proof must rise above mere unkindness, rudeness, incompatibility, or lack of affection.
Mental and emotional abuse can qualify if the victim's life or health was endangered. Because incidents often occur in private, proving this ground can be difficult when only the spouses witnessed the behavior.
Habitual Drunkenness
Habitual drunkenness serves as a fault ground when a spouse frequently abuses alcohol, and the marriage suffers as a result. The plaintiff must prove three elements: the defendant frequently abused alcohol, the marriage was negatively affected, and the alcohol abuse continued at the time of trial.
Evidence such as DUI arrests or convictions, job loss due to drinking, witness testimony, and other proof helps establish this ground. The drinking must be habitual and must have caused real harm to the marriage relationship.
Habitual and Excessive Drug Use
Similar to drunkenness, habitual and excessive use of opium, morphine, or other drugs constitutes grounds for divorce. The drug use must be habitual, not occasional. Courts look for evidence that the user is so addicted that they cannot control their appetite for drugs.
Proof of daily drug use over an extended period can satisfy this requirement. Evidence of loss of friends, loss of control over life, job loss, and similar adverse effects strengthens the case. Prescription drug use typically does not qualify unless there is clear abuse beyond the prescription.
A defense exists if the spouse quit using drugs before the filing of the divorce suit.
Desertion
Desertion requires that one spouse abandon the marriage for at least one year without consent, just cause, or intention to return. The deserting spouse must intend to end the marriage relationship. Desertion can occur even when both spouses live under the same roof if they live as strangers and the deserter intends to end the marriage.
The deserted spouse must show they did not consent to the separation and that they were willing to continue the marriage. If the deserting spouse makes a good-faith offer to return and the other spouse refuses, the refusing party may become the deserter.
Natural Impotency
Natural impotency discovered after marriage can serve as grounds for divorce. This refers to the physical inability to engage in sexual relations. The innocent spouse must not have known about the condition before the marriage for this ground to apply.
Conviction and Incarceration
If a spouse is convicted of a crime and sentenced to jail for one year or more, this constitutes grounds for divorce. The conviction and sentence provide objective proof of behavior incompatible with marriage.
Insanity
Incurable insanity that develops after marriage may serve as grounds for divorce. This differs from insanity that existed before marriage, which falls under a different category. The mental illness must be serious and permanent.
Pregnancy by Another Man
If a wife was pregnant by another man at the time of marriage and the husband did not know, this serves as grounds for divorce. Like natural impotency, the innocent spouse's lack of knowledge before marriage is essential.
Bigamy
Bigamy occurs when one spouse is already married to another person at the time of the second marriage. Only the innocent spouse can use bigamy as grounds for divorce.
Incest
Marriage between relatives within prohibited degrees of relationship constitutes incest under Mississippi law. Such marriages violate both law and public policy.
Being Related Within Degrees of Prohibition
Mississippi law specifies which family relationships are too close for legal marriage. Marriages within these prohibited degrees may be dissolved on this ground.
How to File for Divorce in Mississippi
The process of filing for divorce follows specific procedures under Mississippi divorce law. Understanding these steps helps ensure the case proceeds properly.
Step 1: Prepare the Complaint
The divorce process begins by preparing a complaint for divorce. This legal document states the grounds for divorce, provides information about the marriage, identifies any children, and requests specific relief such as property division, custody, and support.
Step 2: File with Chancery Court
All divorce complaints must be filed with the chancery court in the appropriate county. The complaint is filed with the clerk, who stamps it with a file date. Filing fees must be paid at this time unless the plaintiff qualifies for a fee waiver based on inability to pay.
Step 3: Serve the Defendant
After filing, the defendant spouse must be served with a copy of the complaint and a summons. Any non-party who is at least 18 years old may serve these documents. Service can occur through personal delivery, certified mail (for out-of-state defendants), or publication if the defendant cannot be located.
The defendant has 30 days to respond to the complaint. If the defendant fails to respond, the plaintiff may request a default judgment.
Step 4: Discovery and Negotiation
During the case, both parties exchange information about assets, debts, income, and other relevant matters through a process called discovery. Many couples negotiate settlements during this phase, resolving property division, custody, and support issues without going to trial.
Step 5: Trial or Settlement Hearing
If the parties agree on all terms, they present their settlement agreement to the court for approval. If they cannot agree, the case goes to trial, where a judge hears evidence and makes decisions on contested issues.
For irreconcilable differences cases, both parties must appear before the judge to confirm they agree to the divorce and the terms. The 60-day waiting period must have passed before the judge will grant the divorce.
Property Division in Mississippi Divorce
Mississippi follows the principle of equitable distribution for dividing marital property. The court divides assets and debts fairly, though not necessarily equally. Several factors influence how property is divided:
- The length of the marriage
- Each spouse's contributions to the marital estate
- The economic circumstances of each party
- Fault in the breakup of the marriage
- Tax consequences of property division
- The value and liquidity of assets
- Custody arrangements for children
Marital property includes assets acquired during the marriage, regardless of whose name appears on titles. Separate property, such as inheritances, gifts to one spouse, and property owned before marriage, typically remains with the original owner.
Child Custody and Support
When divorcing couples have minor children, Mississippi divorce law requires addressing custody and support. Courts make custody decisions based on the best interests of the child, considering factors such as:
- The emotional ties between parents and children
- Each parent's capacity to provide love, guidance, and education
- Each parent's employment and responsibilities
- The child's home, school, and community record
- Each parent's mental and physical health
- The child's preference (if old enough to express a reasonable preference)
Child support follows state guidelines based on both parents' incomes and the number of children. The non-custodial parent typically pays support to the custodial parent. Courts can deviate from guidelines in special circumstances.
Alimony Under Mississippi Divorce Law
Mississippi divorce law allows courts to award alimony (also called spousal support) to either spouse. Courts consider multiple factors when deciding whether to grant alimony and in what amount:
- The income and expenses of both parties
- The health and earning capacity of each spouse
- The needs of each party
- The obligations and assets of each spouse
- The length of the marriage
- The presence or absence of minor children
- Tax consequences of alimony
- Fault in the divorce
Fault grounds can significantly affect alimony awards. A spouse who committed adultery or engaged in cruel treatment may receive reduced alimony or none at all. However, judges do not use alimony to punish spouses but rather to address legitimate financial needs.
Alimony may be temporary (during the divorce), rehabilitative (to help a spouse become self-supporting), or permanent (continuing until death or remarriage).
Impact of Fault on Divorce Outcomes
While proving fault allows a spouse to force a divorce, the practical impact of fault grounds on financial outcomes is often limited. Mississippi divorce law instructs judges not to punish spouses for marital misconduct but to make fair decisions based on all circumstances.
Fault may influence alimony awards and property distribution to some degree. A spouse who committed serious wrongs may receive less favorable treatment. However, the difference between fault-based and irreconcilable differences outcomes is usually not dramatic from a financial standpoint.
The main advantage of fault grounds is allowing one spouse to obtain a divorce even when the other refuses to cooperate. This prevents one spouse from holding the other hostage in an unwanted marriage.
Special Considerations in Mississippi Divorce Law
Pregnancy During Divorce
If either spouse is pregnant at the time of filing, the court will postpone finalizing the divorce until after the child is born. This allows the court to properly address paternity, custody, and child support issues for the new child.
Common Law Marriage
Mississippi does not recognize common law marriage. Couples who live together without a formal marriage ceremony and license are not legally married and do not need a divorce to separate. However, they may have property rights that require legal action to resolve.
Name Changes
After divorce, either spouse may request to return to their maiden name or a previous name. This request is typically included in the divorce decree. Changing a child's name requires court approval and notice to both parents.
Military Considerations
Special federal laws protect military service members in divorce proceedings. The Servicemembers Civil Relief Act allows active duty members to request delays in proceedings if military duty prevents them from participating.
Anyone facing divorce in Mississippi should consider consulting with an attorney who understands the state's divorce laws. Legal representation helps protect rights, ensures proper procedures are followed, and works toward fair outcomes in property division, custody, and support matters. Whether filing for divorce or responding to a divorce complaint, understanding Mississippi divorce law provides the foundation for making good decisions during a difficult time.