Divorce

In order to obtain a divorce in the state of Mississippi, a court must determine first that a valid marriage exists.  In order to establish that a marriage is valid, a court will have to determine first that the parties were eligible to marry under state law, that they both consented to the marriage, and they both complied with the form of requirements that are established by the state.   In the state of Mississippi, a female under the age of fifteen or a male under the age of seventeen is prohibited from marriage per statute unless waived by consent of the parents or showing of good cause.  It is required that a judge of competent jurisdiction waive the normal age restrictions for permitting those under the age previously stated to marry.  Mississippi does pose one unique requirement in order to have a valid marriage: that the parties’ marriage was solemnized in a ceremony.

Common law marriages are not recognized in Mississippi unless they were contracted prior to 1956.  Although many parties seek annulment of a marriage, it is much more difficult in most instances to obtain an annulment because of the strict statutory grounds that exist for obtaining one. An annulment is recognition that a marriage is void or voidable and can be set aside.  Voidable marriages are those that are provided by statute and include incurable impotency, insanity, failure to meet licensure requirements if there is no cohabitation, incapacity to consent due to lack of age or understanding,  physical incapacity to enter into the state of marriage, consent obtained by force or fraud, or if the wife is pregnant by another man at the time of the marriage without the knowledge of the husband.  Several of these instances do require that the suit be brought within six months of the time the ground is or should have been discovered.  Because annulment sets aside rather than terminates a marriage, neither spouse is entitled to spousal support or marital property division.  However, the court may award custody of children and other child support and grant equitable relief regarding custody and visitation.

Divorces often present problems of child custody as well as the division of property rights that are obtained during a marriage.  Mississippi does recognize equitable distribution of marital property; however each spouse may own and maintain property separately titled to that spouse in some instances.  If the spouse acquires property titled in their name alone, the other has no claim to the property in most circumstances.  Some exceptions do exist where marital property was comingled, or used for the benefit of the marriage. Real estate including homestead property is not able to be mortgaged or transferred without the consent of the non-owning spouse.   Property that is acquired during the marriage and used for the benefit of the marriage is generally deemed to be community property that is equally owned by both the husband and the wife and subject to a courts distribution upon the divorce.

Mississippi recognizes several fault-based grounds for divorce.  Natural impotency, adultery, one spouse being sentenced to a penitentiary, willful obstinate and continued desertion for the space of one year, constructive desertion (where one spouse engages in conduct that renders the continuation of the marriage unendurable or where the continuation of the marriage is dangerous to life, health, and safety.) Mississippi also recognizes that the refusal to have sexual relations in certain circumstances can constitute grounds for a divorce.  Also recognized by statute as grounds for divorce in the state of Mississippi are habitual drunkenness, habitual use of opium, morphine, or other like drug, habitual cruel and inhumane treatment, insanity at the time of the marriage, if the complainant was without knowledge of the insanity, bigamy, pregnancy of the wife by another at the time of the marriage without the knowledge of the husband, relation within the prohibited degrees of kindred (incest), and incurable insanity.

It is notable that the Court of Appeals in Mississippi in 2012 has substantially loosened the requirements of both the habitual and excessive use of opium, morphine, or other like drug.  The court of appeals found that a husbands continued use of marijuana constituted of other like drug.  Additionally the court of appeals has loosened standards that constitute habitual cruel and inhumane treatment.  Habitual cruel and inhumane treatment has been found in cases where one spouse has had severe addictions to gambling, pornography, and other immoral behavior.

Mississippi also recognizes several defenses to divorce.  Those defenses are provided by statute.  Recrimination (where both spouses are guilty at fault and neither is entitled to a divorce) the court must grant a divorce to the party who is most innocent in those circumstances.  Insanity is also a defense to a divorce based upon adultery, desertion, or cruelty if the offending spouse lacked the capacity at the time of the offense to form the necessary intent.  Condonation is also a ground for divorce and constitutes forgiveness of marital fault of the wrong spouse with the understanding that hate conduct is not to recur.  Condonation most often is used as a defense against claims of adultery.  It is important to know that condonation is generally not a defense to habitual drunkenness or cruelty. Connivance is another often sited defense to a divorce is Mississippi.  It arises from the notion that a person who is wronged and did not appear object to that conduct that they have not been wronged.  This theory has been eroded to some extent but it is still seen from time to time. Mississippi also recognizes collusion as a defense to divorce in such instances where the parties agree to frustrate the divorce procedure in some way by creating grounds or agreeing not to defend the case; this is not commonly seen in the state of Mississippi.  Provocation is another defense to divorce and mentioned in several early Mississippi cases.  It is a bar or a prohibition of divorce where the complainant provoked the conduct of wrong doing spouse through conduct of a grave and serious nature as to justify the actions of the defendant.  This is most likely to be used in response to a divorce action based upon desertion.

The last ground for divorce in the state of Mississippi is the soldiers and sailors relief act (50 U.S.C. 521).  This act allows the stay of the proceedings for persons of the military it does not constitute an appearance and must be granted unless it can be shown that the applicant’s rights will not be material affected by the proceedings.

Matthew feels strongly that parties to a divorce should consider sitting down and discussing a fair resolution of the marriage with your spouse if that is possible.  Although a divorce is never a desirable outcome, it will save the parties a significant amount of time and expense to attempt to reconcile.  If they are unable to reconcile, the next best solution is to come to an agreement dissolving marital property and distributing property between the husband and the wife, that provides for proper child support and custody, visitation for the minor children, insurance (life and health), and any other matter that is deemed important to the parties and needs to be a part of the courts final order.

Matthew Poole offers low cost flat fees in uncontested (no fault or “irreconcilable differences”) divorces which may save potential clients a large amount of time and stress which accompanies most contested divorce and child custody matters.  We encourage you to make a good faith effort to come to a comprehensive agreement with your spouse.  If all else fails, we will help you navigate the challenges of litigating your divorce.