Archive for November, 2011

Is the State of Mississippi able to have jurisdiction of my child’s custody case?

Wednesday, November 9th, 2011

This Act, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), revisits the problem of the interstate child almost thirty years after the Conference promulgated the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJEA accomplishes two major purposes.

First, it revises the law on child custody jurisdiction in light of federal enactments and almost thirty years of inconsistent case law. Article 2 of this Act provides clearer standards for which States can exercise original jurisdiction over a child custody determination. It also, for the first time, enunciates a standard of continuing jurisdiction and clarifies modification jurisdiction. Other aspects of the article harmonize the law on simultaneous proceedings, clean hands, and forum non conveniens.

Second, this Act provides in Article 3 for a remedial process to enforce interstate child custody and visitation determinations. In doing so, it brings a uniform procedure to the law of interstate enforcement that is currently producing inconsistent results. In many respects, this Act accomplishes for custody and visitation determinations the same uniformity that has occurred in interstate child support with the promulgation of the Uniform Interstate Family Support Act (UIFSA).

SECTION 201. INITIAL CHILD-CUSTODY JURISDICTION.

(a) Except as otherwise provided in Section 204, a court of this State has jurisdiction to make an initial child-custody determination only if:

(1) this State is the home State of the child on the date of the commencement of the proceeding, or was the home State of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2) a court of another State does not have jurisdiction under paragraph (1), or a court of the home State of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 207 or 208, and:

(A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and

(B) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under Section 207 or 208; or

(4) no court of any other State would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.

This section provides mandatory jurisdictional rules for the original child custody proceeding. It generally continues the provisions of the UCCJA § 3. However, there have been a number of changes to the jurisdictional bases.

1. Home State Jurisdiction. The jurisdiction of the home State has been prioritized over other jurisdictional bases. Section 3 of the UCCJA provided four independent and concurrent bases of jurisdiction. The PKPA provides that full faith and credit can only be given to an initial custody determination of a “significant connection” State when there is no home State. This Act prioritizes home state jurisdiction in the same manner as the PKPA thereby eliminating any potential conflict between the two acts.

The six-month extended home state provision of subsection (a)(1) has been modified slightly from the UCCJA. The UCCJA provided that home state jurisdiction continued for six months when the child had been removed by a person seeking the child’s custody or for other reasons and a parent or a person acting as a parent continues to reside in the home State. Under this Act, it is no longer necessary to determine why the child has been removed. The only inquiry relates to the status of the person left behind. This change provides a slightly more refined home state standard than the UCCJA or the PKPA, which also requires a determination that the child has been removed “by a contestant or for other reasons.” The scope of the PKPA’s provision is theoretically narrower than this Act. However, the phrase “or for other reasons” covers most fact situations where the child is not in the home State and, therefore, the difference has no substantive effect

In another sense, the six-month extended home state jurisdiction provision is this Act is narrower than the comparable provision in the PKPA. The PKPA’s definition of extended home State is more expansive because it applies whenever a “contestant” remains in the home State. That class of individuals has been eliminated in this Act. This Act retains the original UCCJA classification of “parent or person acting as parent” to define who must remain for a State to exercise the six-month extended home state jurisdiction. This eliminates the undesirable jurisdictional determinations which would occur as a result of differing state substantive laws on visitation involving grandparents and others. For example, if State A’s law provided that grandparents could obtain visitation with a child after the death of one of the parents, then the grandparents, who would be considered “contestants” under the PKPA, could file a proceeding within six months after the remaining parent moved and have the case heard in State A. However, if State A did not provide that grandparents could seek visitation under such circumstances, the grandparents would not be considered “contestants” and State B where the child acquired a new home State would provide the only forum. This Act bases jurisdiction on the parent and child or person acting as a parent and child relationship without regard to grandparents or other potential seekers of custody or visitation. There is no conflict with the broader provision of the PKPA. The PKPA in § (c)(1) authorizes States to narrow the scope of their jurisdiction.

2. Significant connection jurisdiction. This jurisdictional basis has been amended in four particulars from the UCCJA. First, the “best interest” language of the UCCJA has been eliminated. This phrase tended to create confusion between the jurisdictional issue and the substantive custody determination. Since the language was not necessary for the jurisdictional issue, it has been removed.

Second, the UCCJA based jurisdiction on the presence of a significant connection between the child and the child’s parents or the child and at least one contestant. This Act requires that the significant connections be between the child, the child’s parents or the child and a person acting as a parent.

Third, a significant connection State may assume jurisdiction only when there is no home State or when the home State decides that the significant connection State would be a more appropriate forum under Section 207 or 208. Fourth, the determination of significant connections has been changed to eliminate the language of “present or future care.” The jurisdictional determination should be made by determining whether there is sufficient evidence in the State for the court to make an informed custody determination. That evidence might relate to the past as well as to the “present or future.”

Can both parties to a No-Fault Divorce have the same attorney in the State of Mississippi?

Wednesday, November 9th, 2011

This is a common question that comes to our office, and the simple answer is absolutely not.  Attorneys are bound by certain ethical guidelines, and one of those guidelines requires zealous advocacy of a client; unlike in the real estate context, where a dual agency is permitted under certain circumstances in the purchasing of residential or commercial real estate (as in the buyer and seller can be represented by the same party).  This dual representation is not permitted in divorce in the State of Mississippi or any other state in the United States.  There are certain limited exceptions in which dual representation is possible however, they must be strictly limited due to the inherent nature of divorce and property settlement which entails that both parties have conflicting interests in the matter.  In other words, it’s not possible for an attorney to equally represent the interests of two parties whose interests are diametrically opposed to one another.

A wife, for instance, who has an interest in a property or real estate that was the marital household, would under most circumstances seek to gain as much equity or interest in the property as possible from her husband from whom she seeks a divorce.  Conversely, a husband who maintains interest in that property will have the opposite interests financially upon a dissolution of the marriage, which is to say that he will seek to retain as much interest or equity in the property as possible.  In other words, the interests of the husband and wife in this scenario are diametrically opposed and cannot be congruent under any set of circumstances.

The same can be said for custody of a child or children.  In a marriage the interest of a wife are often to retain as much custodial rights and seek the maximum amount of child support permissible by statue and under current equitable distribution laws and child support guidelines in the State of Mississippi.  A husband would seek to minimize his obligation, or in some cases where a husband retains custody, to maximize the amount of he can obtain from a wife from whom he seeks a divorce.  There’s absolutely no set of circumstances in which a husband and wife can have congruent or similar interests which would not later cause an attorney to be treading in deep water if he/she is faced with a complaint for malpractice.   For this reason, Mississippi and every other state in the union prohibits an attorney from divulging that he has an equal interest  in representing both parties to either a property settlement which is part of a divorce, or a post divorce decree, or the divorce itself.  This is the way the rules should work and any exception to this should be looked upon with extreme scrutiny.  If an attorney tells you, “I can represent you and your husband/ wife in this matter and save you both costs,”  this is a major red flag and should be looked upon with extreme scrutiny as described herein.  Please call our office with any questions about similar scenarios which you or a friend may have experienced.  Hopefully we will be able to iron them out without having to seek the assistance of the Court.  However in many circumstances where an attorney has mislead a client to believe that they can simply hire one attorney to represent the interests of two people (whose interest are by definition opposed to one another) this would likely be grounds for a bar complaint and disciplinary action.  If you have any questions or concerns please call our office at any time.

In the State of Mississippi is terminating Parental Rights necessary to adopt a child?

Wednesday, November 9th, 2011

In several Mississippi Chancery Court jurisdictions, Courts have begun requiring that a third party or interested person/relative step in and adopt any child in order to grant the termination of parental rights against a natural parent.  This same situation can be said to apply to parents who have previously adopted or had other custodial rights adjudicated by a court.  Conversely, it is absolutely necessary to terminate the parental rights of biological parents in order to have a valid adoption.  The interplay between these two distinct sections of Mississippi statue present some difficult questions for lawyers, but they can be addressed relatively simply by review of both statues and common law principles.

First of all, the standard definition for adoption is the statutory process of terminating a child’s legal rights and duties toward the natural parents and substituting similar rights and duties toward adopted parents.  In this regard it appears that adoption is actually akin to effecting the rights of a child in relation to both natural and adoptive parents.  This tends to explain the reason that a termination of parental rights is necessary in order for an adoption to take place and be upheld by a court in Mississippi if later challenged.

Adoption exists solely by the virtue of statue in the State of Mississippi; however it needs to be stated clearly that the court’s consideration of the child’s best interest can only arise in adoption proceedings at a point of which the court has determined that the natural parents have either consented to the adoption, are unfit to rear the child or children, or have abandoned the child.  Also the parental rights must have previously have been terminated in order for the adoption to take place.  This can be done in the same proceeding although commonly terminations take place in a separate proceeding before the adoption, however they usually do end up in the same action and case file.

Chancery Court has exclusive jurisdiction over adoptions in the State of Mississippi, see Mississippi Code Ann., 93-17-3.  The proper venue for adoption proceedings is the place of residence of the plaintiff, or where the child resides.  It is possible to actually have an adoption proceeding where the child was born or where the child to be adopted was found or abandoned although, the residence of the child or plaintiff’s as appropriate venue has been challenged less often than these later mentioned possibilities.

According to the MS Code Annotated any person including an adult may be adopted.  An unmarried adult may adopt a child, or an adult, or a married couple may adopt together thereby vesting joint rights of parentage and two people both jointly and severely.  If natural parents have not abandoned a child, or have not been determined to be unfit, or had their parental rights terminated, the consent of both would be necessary for an adoption to take place.  The consent to adoption that is procured by fraud, duress, or undue influence, proved by clear and convincing evidence may be set aside.  However recent Mississippi jurisprudence makes clear that in a situation where a father is not served with process of an adoption and has no notice of the proceeding, it does not absolutely guarantee that he will be able to set that adoption aside upon filing a petition with the chancery court when he becomes aware of the proceeding.  This creates some confusion when compared with due process requirements as well as  the 5th and 14th Amendments to the United States Constitution which tend to require notice of just about any proceeding effecting the property rights or other rights which are fundamental to a respondent or one that should have been made a respondent in a chancery court matter.

Generally speaking, a father will have to show additional facts in order to mandate that he be served with process in the adoption if he seeks to set aside an adoption ex post facto.  For instance, the Mississippi statute now indicates that the father must demonstrate the responsibilities of parenthood  by taking care or providing for the mother while pregnant, paying for medical bills, or other showings that he committed himself to being a parent and is not simply a semen donor.  In essence, the Mississippi statute and common law requires that a father take steps to legitimize the child as his own before permitting him to challenge an adoption later for lack of proper notice, as would normally be required by due process.  This area of law is still developing but the Mississippi Code seems to have taken some steps toward providing unwed father’s rights which they may not have had fifty years ago, but they’re still not placed in the same standing as a biological mother in terms of their ability to challenge an adoption ex post facto, even where no notice was provided.

The Constitution upholds the right to be a parent and it is cherished virtually by every state and country in the world. However, the term “dead beat dad” has become a commonly used word and one of concern to many.  There’s several grounds for termination of parental rights recognized by Mississippi Statutory law.  Firstly this applies to a parent who has deserted a child without means of identification; or has abandoned and made no contact with the child under the age of three for six months, or a child three years or older for the period of one year.  Similarly a parent responsible for a series of abusive incidents concerning one or more children may meet the statutory grounds for termination of their rights.  Also, if the child has been in care and custody of a licensed child care agency for a year and the agency has made diligent efforts to develop and implement a plan for retuning the child to it’s parents but the parent or parents have failed to exercise reasonable available visitation with the child, or the parent has agreed to a plan to effect placement of a child with a parent but has failed to implement the plan so that the child care agency is unable to return the child to the parent.

Another possibility is that the parent has exhibited ongoing behavior which would make it impossible to return the child to the parent’s care and custody because the parent is diagnosed as a alcoholic, drug addict, or is so severely mentally deficient, mentally ill, or physically handicapped that the parent is unable to provide minimally acceptable care of the child; or if the parent has failed to eliminate behavior which prevents placement of the child with a parent in spite of diligent efforts of the child care agency to  assist the parent.  If there is an existing and extreme deep-seated antipathy by the child toward the parent, or there is some substantial erosion of the relationship between parent and child which was caused at least in part by serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or  communicate, or prolonged imprisonment on the part of the parent, there are grounds for termination of parental rights.  I hope this brief summary gives you a basic grasp of termination of parental rights and adoption laws in the State of Mississippi and the common  interplay between them.

I am divorcing in the State of Mississippi, is my spouse entitled to alimony?

Wednesday, November 9th, 2011

There are several misconceptions about alimony and its applicability when dealing with domestic cases in the State of Mississippi.  Some states do present unique alimony laws, although those in Mississippi tend to be relatively moderate in terms of their application.  It’s important to realize that alimony’s not the only possibility for disbursement of funds by an ex-spouse.  See a discussion regarding marital assets and the Ferguson v. Ferguson case (located on mspoole.com). By definition, “alimony” is a court ordered allowance that one spouse pays to the other for maintenance and support while they’re separated, while they’re involved in a lawsuit, or after they’re divorced.  Usually you will see the term “separate maintenance” applied when the payment or allowance from one spouse to another is still married.  Alternative terms are estover and spousal support.  Alimony on a temporary basis, before a court has had a chance to hear an entire case on the merits, can possibly be received in the State of Mississippi upon a showing of need and or rehabilitation or fault of the opposing spouse.

There are several types of alimony: permanent, rehabilitative, and reimbursement.  Permanent alimony refers to alimony which is payable either weekly or monthly, either indefinitely or until a specific date.  This usually may be modified for changed circumstances of either party.  Rehabilitative alimony is alimony necessary to assist a divorced person in regaining a useful and constructive role in society through vocational or other training.  This type of alimony would be particularity common in situations where a spouse lacks the ability to reenter the work force and has little earning capacity in comparison with his or her ex-spouse.

Along a similar note, reimbursement alimony is designed to repay a spouse whom during the marriage made financial contributions that directly enhanced the future earning capacity of the other spouse.  An example of this is a wife working full time supporting herself and her husband while he attends law school, medical school, or some other professional training.  We have seen this at the office several situations wherein a person makes significant contributions towards tuition, room and board, etc. for their spouse while they attend school.

Although alimony is often based upon fault there are several exceptions to this generally accepted principle, including the fact that rehabilitative and reimbursement alimony do not take into consideration the fault of either party. However, in courts of equity in Mississippi it is unlikely that anyone will be awarded alimony if it is deemed that their conduct was a substantial contributing factor to the dissolution of the marriage.  Alimony, often termed spousal support, maintains statutory authority from Mississippi Code Ann., Section 93-5-23, “When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders… touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee.”

Alimony was in the past awarded as a periodic payment without any clear ending date and could be modified based upon a change in circumstances.  Until recently, a wife could be awarded alimony based upon need if she was without fault in the break up of the marriage.  It is now equally available to a husband and wife (see Walker vs. Walker, Mississippi Supreme Court 1980).  It is required in Mississippi that a court have specific findings of fact to support any finding that  an award of alimony is appropriate given the considerations of the state’s jurisprudence.  The Walker case also reemphasized Ferguson and that alimony should only be awarded if, after a division of marital property along with non marital assets, the spouse is left with a deficit.  The court held that it could not uphold an alimony award without a specific finding justifying the need for the same.  See Henderson vs. Henderson (Mississippi Supreme Court 1997).

A court could potentially also award a combination of various types of alimony.  If an award does not fit the traditional characteristics as previously discussed, it is to be construed as periodic.  In other words, if its not clearly labeled, it will deemed periodic alimony.  The Mississippi Supreme Court recently recognized and enforced agreements that do not fit the traditional schemes, indicating that some flexibility may be allowed in determining a proper alimony agreement and or award.  Although it is clear that a person at fault is unlikely to receive and award of alimony, Hammons vs Hammons (Mississippi Supreme Court 1992)  overruled older cases stating that a wife at fault was not entitled to alimony regardless of other circumstances.  The Court held that where the alimony is otherwise appropriate, it should not be denied solely because she is at fault, and that fault is only one factor for the consideration of the court.  In short, consider that alimony can be paid in a variety of circumstances outside of considerations concluding marital assets and property, which are to be divided per the Ferguson factors as outlined on mspoole.com.

Although this body of case law continues to develop it is clear that fault is a very important factor for consideration in whether or not an award of alimony is appropriate, although its not the sole determinative factor.  Factors such as contribution to a spouse, participation in a spouse’s business venture, and other equitable factors will be taken into consideration as well.

Circumstances Where Grandparent Can Be Granted Custody/Visitation in Mississippi

Wednesday, November 9th, 2011

First of all let’s make clear that natural parents do have a presumptive right to have custody of their child.  This is because the child’s best interest is presumed to be best served by being placed with natural parents.  Custody can only be granted to a third party with clear and convincing evidence that the natural parent has either abandoned the child, is unfit to have custody, or engages in conduct which is so immoral as to be detrimental to the child’s best interests.  However, in Mississippi the Supreme Court has reversed an award of custody to grandparents based on a chancellor’s finding that the natural father was unprepared to take custody as opposed to unfit to have custody of his children.  In other words, there is a very high standard applied to these cases, although grandparents could potentially have custody of a child that is their biological grandchild, the bar is set fairly high as it should be.  For instance, in one case the court denied a custody award to grandparents who made a claim that the mother abandoned the child. The mother left the child for several years in the care of the grandparents, however; she still sent gifts and maintained contact, even visiting with the child.  She never stated that she was going to permanently give custody to the grandparents see Payne vs. Payne (Mississippi Supreme Court 1952).

Visitation rights also pose a difficult set of circumstances for most grandparents because although some states do permit grandparent visitation by statute, many including Mississippi rely also on common law principles.  Mississippi will only permit a court to order a visitation of grandparents under a showing of either the custody is awarded to a parent and a parent dies, or a parent’s rights are terminated.  The parents of the non-custodial dead or terminated parent may obtain visitation rights.  Alternatively, if the grandparent had a viable relationship with the child, (which means they supported the child in whole or part for at least six months, had frequent visitation including overnight visitation for at least a year, and that the visitation order is in the best interest of the minor child) may also obtain rights to visit their grandchild.  One case that gives grandparents some hope for visitation of their grandchildren under exigent circumstances is Galloway vs. Galloway (Mississippi Supreme Court 1996).  In this instance the lower court ordered the grandparent be permitted visitation on every other weekend and on several holidays. The court of appeals did express concern over the extent of the visitation but did uphold the order because the visitation appeared to be in lieu of visitation by the father, who could not exercise it because of his military service.

It is also clear that grandparents do have rights to visit under certain circumstances once  facts are shown that meet the threshold for the court’s approval, however; natural grandparents don’t have a right to visit grandchildren as comprehensive as the rights of natural parents –see Martin vs. Coop (Mississippi Supreme Court 1997).  In summation, grandparents do have some hope for gaining visitation rights of their grandchildren in disputed custody matters however, it is not as comprehensive as that of a natural parent.  Anything the grandparent can do to further the relationship between themselves and the child including exercising visitation at any time possible and supporting the child will be viewed in the best light if the case comes in front of a judge who has to make a determination in the furtherance of a child’s best interests.  Remember the polestar consideration is the best interest of the minor child. (See Albright vs Albright which is located on our website mspoole.com).  Also please let it be clear that even though the bar is set high, it doesn’t mean that grandparents should give up on having a viable relationship with their grandchild.  There is hope!  It does take a significant showing of fact and this can be done particularly for those who have made extensive efforts to have a relationship with their grandchild or for those people whose son or daughter is the biological parent who is unavailable to exercise visitation and or custody.

Child Custody without a Court Order in the State of Mississippi; Is it possible?

Wednesday, November 9th, 2011

This office often receives calls from potential clients stating that they have custody of their child simply because the child has always lived with them and doesn’t even know, or barely knows the opposite biological parent.  To give a specific example, we had a female client call and state that she has custody of her child and wants to make sure that the biological father pays child support . Sometimes in similar scenarios the caller may request that the biological father’s right be terminated altogether.  As per usual, as well as in the above mentioned scenarios, there’s a substantial amount of misunderstanding of the term “custody” and what it means.  In one sense, in the use of many laymen, while even without a court order a mother or father could have custody of a child because they do exercise care and control of that person.

It is important to distinguish the difference between “physical” and “legal” custody for the purpose of this discussion.  “Physical” custody has to do with the right to have a child or children live with the person awarded that custody.  “Legal” custody has to do with the ability of a parent to make decisions on behalf of a minor child,  this can include but is not limited to medical and educational decision making.

Sometimes we have clients call and say, “We have custody of our child because there’s a DHS order in place that requires the father to pay support.”  Although we hate to be the bearer of bad news, I have to let them know that DHS cannot adjudicate custody.  The Department of Human Services only has jurisdiction to adjudicate child support and some limited abilities to set up visitation schedules or require that the non-custodial parent be permitted visitation with the child for whom they’re paying support.

The moment that a Mississippi chancery court has a petition filed by either party to determine custody, DHS has no ability to mandate any sort of visitation or custody award on behalf of one parent.  The long and short of this topic is that in order to have true custody that is legally enforceable by any court, it requires more than a DHS order, more than a parent having exercised control and care over a child, and most importantly it requires that the parent obtain a court order which adjudicates or decides all rights between the parents related to the minor child  and their well being.  For a further discussion on custody and what factors a court in Mississippi will consider in making these decisions see Albright vs. Albright which is on our website mspoole.com.

A No-Fault Divorce in the State of Mississippi; What does it mean? Am I eligible?

Wednesday, November 9th, 2011

In the State of Mississippi many divorces are termed Irreconcilable differences and in actuality represent the vast majority of divorces in any given chancery court. We often receive calls from people inquiring about a No-Fault divorce and tell us that they wish to pursue their divorce without alleging fault grounds.  However when we ask them, “Does your spouse agree with getting divorced?” They quickly answer, “No.” This is one of the most common situations we deal with.  They are optimistic that some action can be taken to obtain a No-Fault divorce even in spite of the fact that their spouse won’t agree, either to a divorce in principle or to the terms which will govern division of assets and child custody.

Unfortunately, obtaining a No-Fault divorce requires some steps that aren’t always easily obtained by clients.  It is a requirement by the State of Mississippi that both parties agree to the divorce if it is to be granted without fault grounds.  All of the issues that are germane or relevant to the marriage must be addressed and upon agreeing, both parties must sign in front of a notary.  Some of the issues that are often disputed may include but are not limited to custody and visitation of the children, amount of child support, whether or not health or life insurance will be required, as well as all of the issues surrounding the property of the parties if they do in fact own real property (real estate, a home. Etc.).  Often times personal property also becomes an issue and dividing the personal property can often present a conflict as well.

A No-Fault divorce, synonymously termed Irreconcilable Differences in the State of Mississippi, really has nothing to do with whether or not there’s fault alleged in the marriage.  Quite often No-Fault divorces are granted by a court in a situation where there’s an allegation of fault by both parties.  Under those circumstances both parties would have to file a request with the court to have the fault grounds be dropped and the court would then grant them permission to drop their fault grounds before proceeding with a No-Fault divorce.  For the purposes of this discussion, we’re focusing solely on the fact that the State of Mississippi does have some of the toughest divorces laws in the country and insofar that we do not allow a party to obtain a No-Fault divorce simply by being separated from their spouse for a certain amount of time such   as which is permitted in some states.  Regardless of all the other facts or circumstances in the divorce our clients may seek, if their spouse does not agree to a No-Fault or Irreconcilable Differences divorce in principle (even if an agreement on division of property and issues related to child custody are settled between the parties), there is absolutely no way to obtain one.  At this point, discuss with your attorney the option of filing a divorce on fault-based grounds.

My suggestion to anyone who is seeking a No-Fault divorce that is unable to come to an agreement is to possibly have each party sit down with an attorney.  It is important to note that one attorney cannot represent both parties in a No-Fault divorce in the Sate of Mississippi or any other State that we are aware of.  This is the case because it’s an inherently conflicting set of ideals that would have to be in place in order for a party to be represented by the same person as their spouse.  In other words, there’s too much propensity for those two parties to have disagreement on any issue and the lawyer would likely inherently favor one party over the other.  There is no way for the lawyer to equally represent both parties to a No-Fault divorce.  So if it is a No-Fault divorce you’re seeking and for whatever reason wish to avoid any allegations that will be made public in a chancery court file, my suggestion is to make a list of the things that you can agree on.  Bring with you the list of the things that you can agree on along with those other matters that you cannot agree on to your attorney. Meet with your attorney and see if there’s any way to resolve those issues without filing a fault-based complaint. Often times this can be accomplished, sometimes it cannot.  Often it is absolutely necessary for you to make some sort of fault allegation that is well founded in the facts such as habitual cruel treatment, adultery, desertion, or any of the other accepted grounds for divorce in the State of Mississippi in order to obtain a final and outright cessation of the marriage.  Although we perfectly understand that this isn’t always what people want to hear, it is necessary that all people have an understanding of the general philosophy behind Mississippi Divorce law.  In understanding that, you’ll be better prepared to deal with whatever lies ahead.