Mississippi LGBT divorce has become a reality since the landmark Supreme Court decision legalizing same sex marriage across the United States. Before June 26, 2015, Mississippi did not recognize same sex marriage, making it impossible for same sex couples to divorce in the state. The Supreme Court ruling in Obergefell v. Hodges changed everything, making same-sex marriage the law of the land and requiring all states to recognize same sex marriage performed in other states.
Today, gay and lesbian couples in Mississippi have the same rights to marry and divorce as opposite-sex couples. However, the path to this equality was challenging, and some unique issues still affect LGBT couples going through divorce in Mississippi.
Historical Context of Same-Sex Marriage in Mississippi
Mississippi's state constitution was amended in 2004 to ban same-sex marriage. Voters approved this amendment by an overwhelming majority, defining marriage as only between one man and one woman. This constitutional provision remained in effect until federal courts declared it unconstitutional.
The state's resistance to legalizing same sex marriage meant that many LGBT couples who married in states that recognized their unions found themselves in legal limbo when they wanted to divorce. A landmark case involving Lauren Czekala Chatham and Dana Ann Melancon highlighted this problem when they sought to end their marriage in Mississippi.
The Czekala-Chatham Case
Lauren Czekala Chatham and Dana Ann Melancon married in California in 2008, during a period when that state allowed same-sex marriages. The lesbian couple later moved to Mississippi and purchased a home together. When their relationship ended in 2010, Czekala-Chatham tried filing for divorce in Mississippi.
The DeSoto County Chancery Court initially refused to grant the divorce. The judge explained that Mississippi law and the state constitution prevented the court from recognizing their marriage, so the court had no authority to dissolve it. This created a frustrating situation where the couple was legally married but could not get divorced.
Czekala-Chatham appealed the decision to the Mississippi Supreme Court. Her attorney argued that Mississippi already granted divorces to other couples who couldn't marry in the state, such as first cousins, so the state should also allow same-sex divorces. The case attracted significant attention as courts across the nation were addressing similar issues.
The Supreme Court Decision
In 2015, the U.S. Supreme Court issued its ruling in Obergefell v. Hodges, declaring that states must allow and recognize same sex marriage. This Supreme Court decision fundamentally changed family law across the country, including in Mississippi. The ruling held that denying marriage rights to same sex couples violated the Constitution.
After the Supreme Court ruling, Mississippi Attorney General Jim Hood changed his position on the Czekala-Chatham case. He requested that the Mississippi Supreme Court allow the divorce to proceed. In November 2015, the Mississippi Supreme Court ruled 5-4 to send the case back to the chancery court, where the divorce was finally granted in December 2015.
The judge who originally denied the divorce apologized to Czekala-Chatham, explaining that he felt bound by Mississippi law at the time. This case paved the way for other same sex couples to file for divorce in Mississippi.
Current Divorce Process for LGBT Couples
Same sex couples in Mississippi now follow the same divorce process as opposite-sex couples. The state recognizes two main types of divorce: fault-based divorce and divorce based on irreconcilable differences.
No-Fault Divorce
A divorce based on irreconcilable differences is an agreed divorce where both parties acknowledge the marriage cannot be saved. Both spouses want the divorce and work together to resolve issues like property division, child custody and support, and spousal support. This type of divorce in Mississippi requires a 60-day waiting period from the date of filing.
Fault-Based Divorce
Mississippi law recognizes 12 grounds for divorce where one spouse alleges wrongdoing by the other. These grounds for divorce include adultery, desertion, habitual cruel and inhuman treatment, habitual drunkenness, and other specific circumstances. In fault-based divorces, one party must prove the alleged misconduct occurred.
Residency Requirements
To file for divorce in Mississippi, at least one spouse must be a resident of the state for at least six months before filing. This residency requirement applies equally to same sex couples and opposite-sex couples. The divorce petition is typically filed in the county where either spouse resides.
Child Custody in LGBT Divorces
Child custody issues can be particularly complex in Mississippi LGBT divorce cases. The chancery court makes all custody decisions based on what serves the best interest of the child. However, same-sex couples face unique challenges, especially when only one parent has a biological connection to the child.
The Strickland v. Day Case
A significant case involving Kimberly Day and Christina Strickland illustrates the complexities of child custody for same sex couples. The lesbian couple began their relationship in 1999 and married in Mississippi in 2009. They decided to have a child together using in vitro fertilization with an anonymous sperm donor. Kimberly Day carried and gave birth to the child in 2010.
Because Mississippi did not recognize their marriage at the time, only Day's name appeared on the child's birth certificate. When the couple separated and filed for divorce, the trial court initially ruled that Strickland was not a legal parent to the child. The court suggested that the anonymous sperm donor had more parental rights than Strickland, even though she had helped plan for and raise the child from birth.
Strickland appealed this decision with help from Lambda Legal. In April 2018, the Mississippi Supreme Court reversed the lower court's ruling. The court held that married same sex couples must receive the same parental rights as married opposite-sex couples. The Supreme Court decision ordered that Strickland be listed as a parent on the birth certificate and sent the case back to determine child custody and support arrangements.
This ruling established an important principle: when a married couple uses assisted reproductive technology to have children, both spouses are legal parents regardless of biological connection. The anonymous sperm donor has no parental rights under Mississippi law.
Parental Rights and Birth Certificates
The Strickland case clarified that Mississippi must list both parents of same sex couples on their children's birth certificates. This requirement flows from the Obergefell decision and principles of equal treatment under family law.
For children born to same sex couples after marriage equality, both spouses should be listed as parents on the birth certificate from the beginning. For children born before Mississippi recognized same sex marriage, parents may need to take legal action to correct birth certificates and establish full parental rights.
Property Division in Same-Sex Divorce
Mississippi follows the principle of equitable distribution when dividing marital property in divorce cases. This means the court divides assets and debts fairly, though not necessarily equally. The same rules apply to same sex couples as to opposite-sex couples.
Marital property includes assets acquired during the marriage, regardless of whose name appears on titles or accounts. Separate property, such as assets owned before marriage or received as gifts or inheritances, typically remains with the original owner.
The court considers various factors when dividing property, including the length of the marriage, each spouse's contributions to the marital estate, the economic circumstances of each party, and the needs of any minor children.
Spousal Support and Alimony
Mississippi courts may award spousal support, also called alimony, in same sex divorces just as in other divorces. The court considers factors such as the length of the marriage, the standard of living established during the marriage, the earning capacity of each spouse, and the needs and obligations of both parties.
Spousal support can be temporary, rehabilitative, or permanent, depending on the circumstances. Temporary support helps during the divorce proceeding. Rehabilitative support assists a spouse in becoming self-supporting. Permanent support continues indefinitely, though it typically ends if the receiving spouse remarries.
Challenges Faced by LGBT Couples
Same sex couples divorcing in Mississippi may face unique challenges beyond those encountered by opposite-sex couples. Some of these challenges stem from the relatively recent recognition of same sex marriage and ongoing societal attitudes.
Pre-Obergefell Marriages
Couples who married before the Supreme Court ruling may find that some legal documents or agreements from that time do not fully protect their rights. For example, adoption paperwork, custody agreements, or property arrangements made when Mississippi did not recognize their marriage may need to be revised or clarified.
Social Stigma
Despite legal equality, some LGBT individuals still experience discrimination or judgment during the divorce process. Finding supportive legal representation and community resources can be especially important for same sex couples navigating divorce in Mississippi.
Complex Family Structures
Many same sex couples built their families through adoption, surrogacy, or assisted reproductive technology. These family formation methods can create additional legal questions during divorce, particularly regarding parental rights and child custody.
The Role of Chancery Court
Mississippi's chancery court system handles all divorce cases, including Mississippi LGBT divorce. Chancery courts are courts of equity, meaning they focus on fairness and can fashion remedies to fit specific situations. These courts have jurisdiction over divorce, child custody, property division, and spousal support.
Chancery court judges in Mississippi now routinely handle same sex divorce cases following the same procedures and applying the same legal principles used in all divorces. The Supreme Court decision in Obergefell requires equal treatment under state law.
Legal Representation
Same sex couples going through divorce should seek experienced family law attorneys who understand both general Mississippi divorce law and the specific issues that may arise in LGBT divorces. An attorney can help protect parental rights, ensure proper property division, and advocate for fair outcomes.
Legal representation is particularly important when child custody issues involve non-biological parents, when the couple married before Mississippi recognized same sex marriage, or when one party disputes the validity of the marriage or parental relationships.
Moving Forward After the Supreme Court Ruling
The law of the land now clearly establishes that same sex couples have the same marriage and divorce rights as opposite-sex couples. Mississippi courts can no longer refuse to grant divorces to same sex couples or deny parental rights based on sexual orientation.
However, the relatively recent nature of marriage equality means that some questions continue to arise. Courts are still interpreting how established family law principles apply to situations unique to same sex couples, such as determining parental rights when both parents are the same sex.
Public Opinion and Social Change
Public opinion in Mississippi regarding same sex marriage has evolved over time. While the state initially strongly opposed recognition of same sex marriage, more recent polling suggests growing acceptance. This shift in attitudes may affect how LGBT couples experience the divorce process and how they are treated by legal professionals and the community.
Despite legal equality, individual experiences may vary depending on location within the state and the attitudes of specific judges, attorneys, and court personnel. Advocacy organizations continue working to ensure that same sex couples receive fair and equal treatment throughout Mississippi's legal system.