Mississippi Divorces – Fault vs. No Fault Divorce 101

You have made the difficult decision to divorce your spouse.  Now you are probably wondering how to begin the divorce process and what type of divorce to seek.  In Mississippi, there are two central ways to obtain a divorce.

No Fault Divorce

The first is by way of agreement between you and your soon to be former spouse.  This type of divorce is based on irreconcilable differences and is commonly termed a “no-fault divorce.”  There are two main requirements for a no-fault divorce in Mississippi:

  1. Residency—in order to establish residency, one spouse (at least) must reside in the state of Mississippi for at least six months prior to filing for divorce.
  2. Agreement between the parties—in Mississippi, to divorce on the grounds of irreconcilable differences, both spouses must agree to the divorce.  The parties need not agree to all the terms of a divorce, such as alimony, division of assets, custody, but they must agree to the divorce.   If both parties cannot reach such agreement, it is often advisable to have each consult with an experienced divorce attorney.  A skilled divorce attorney may be able to negotiate between the parties and help the parties reach some sort of agreement so that they can file for a no-fault divorce.

Once these requirements are met, there are two ways to obtain a no-fault divorce.  The first is for the parties to reach an agreement on every aspect of the divorce, including: division of assets; alimony; child support; and child custody.  The parties must agree to the terms of the divorce in writing and sign their assent before a notary.

If the parties cannot reach an agreement to all terms of the divorce, then the court can decide matters in a trial on irreconcilable differences.  The judge (chancellor) will hear evidence by both sides and issue an opinion on the case.  Evidence of marital fault can be admitted and can impact things like division of assets, alimony, and child custody.  However, such evidence will be limited as the divorce is not based on fault grounds.

Fault Based Divorce

The second method for divorcing your spouse in Mississippi is based on fault grounds.  The Mississippi state legislature set out 12 marital faults which are grounds for divorce.  The list is as follows:

  1. Adultery
  2. Custody in the Mississippi Department of Corrections
  3. Incurable insanity
  4. Wife’s pregnancy by a different person at time of marriage where the husband was unaware
  5. Natural impotency
  6. Insanity or idiocy at the time of marriage, where spouse did not know of it
  7. Habitual drunkenness
  8. Habitual drug use
  9. Habitual cruel or inhumane treatment
  10. Desertion for one year
  11. Parties are related to each other to such degree that it is prohibited by law
  12. Marriage to some other person at the time of marriage to current spouse

A spouse requesting a divorce based on one of the above fault grounds must prove by a preponderance of the evidence that their spouse is guilty of such fault.  Adultery can be proven by circumstantial evidence.  If the divorcing spouse proves at trial that their spouse is guilty of one of the 12 fault grounds, then they will be granted a divorce without the consent of the other spouse.  In many cases, a party starts out filing for a fault divorce and, through later negotiations, ends up proceeding with a no fault divorce.

There are numerous factors to consider when determining whether to file for a fault or no fault divorce.  A no fault divorce will proceed quicker, but filing for a fault based divorce may provide you leverage in negotiating for aspects of the divorce that matter most to you, such as alimony or child custody.  The advice of a skilled divorce attorney is essential in determining what your best course of action may be.

Mississippi Divorce Attorney Matthew S. Poole Can Help

Matthew S. Poole has extensive experience representing spouses in both fault and no fault divorce cases.  With his expertise, you can rest assured that you are utilizing the best divorce method for your individual case.  Matthew is a skilled negotiator who will zealously argue on your behalf so that you achieve the best possible outcome from your divorce.  Call Matthew S. Poole today at (601) 573-7429 to schedule a consultation.

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