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Grounds and Defenses for Divorce In Mississippi
There are basically three ways that you can get a divorce in Mississippi. You and your spouse can agree that you want to be divorced and agree to all aspects of your property division and all the intricate details dealing with your continued care for your children post divorce. If you choose this route you will sign a Joint Complaint for Divorce- Irreconcilable Differences, Child Custody and Property Settlement Agreement and Final Judgment of Divorce. You will also exchange sworn Financial Declarations, which expressly lay out income, monthly expenses, assets and liabilities. The Joint Complaint is filed with the Chancery Clerk's office after paying a modest filing fee. The Complaint must be on file for at least sixty days before I can set up a meeting with the Judge to have him review and approve the Agreement, which is incorporated within the Final Judgment.
If you have children, most judges will require that you also file your Financial Declarations, and some counties have a requirement that divorcing parents attend a parenting class that discusses children of divorced families. Once the Judge is satisfied that all the paperwork is in order and the children are going to be properly maintained, the Judge will sign off on the Final Judgment and I will take the document back to the Chancery Clerk's office and place the Final Judgment on file in the public record, accessible by anyone. I will give you an attested copy of your Divorce, and you should keep the original among all of you important papers, with a copy close at hand for ready reference.
The second way that you can get a divorce is if you or your spouse has a reason to get a divorce. A divorce based upon any one of the twelve statutory grounds must go to trial. Reasons for divorce in Mississippi are as follows:
The most frequent grounds for divorce are cruelty, adultery, desertion, and habitual use of drugs and/or alcohol. Cruelty is a culmination of conduct perpetrated by one spouse against the other over a period of time that makes the marital relationship unbearable to the innocent spouse and which endangers the offended spouse's life, limb or health, or which creates a reasonable apprehension of such danger. What is cruelty in one household may not be cruelty in another. What is cruelty to one Judge may not be cruelty to another. What constitutes cruelty is open to interpretation and it is one of the most difficult grounds for divorce to prove. Cruelty can be actions or inactions. Cruelty can be characterized by emotional abuse and physical violence, neglect and non-support, drunkenness, drug addiction, refusal of sexual relations, adultery, profanity and verbal abuse. Many lawyers see cruelty as the "catch all" ground for divorce. If a person wants a divorce and the other party will not agree, cruelty is often what will be pled.
Adultery does not require proof of sexual intercourse. Adultery can be proven if it is shown that the offending party had the inclination and opportunity to consummate an adulterous relationship. You can use your imagination as to how this can be shown in court.
Abandonment is the withdrawal of marital relations for the space of one year when during that year the abandoned spouse was ready and willing to accept the abandoner back into the marital relationship. Abandonment can occur when one party actually leaves, but it can also occur under the same roof due to a withdrawal of one party from the normal functions of a marriage, like sexual relations.
If seeking a divorce on grounds, make sure you have your proof first, because once you file, you can rest assured that your spouse will probably walk a straight line. Also, before you are actually divorced, you should not do anything to give your spouse any grounds for divorce because it can and will be used against you. If you cannot prove your grounds for divorce, you can be denied a divorce in Mississippi. In other words, if your spouse does not agree to give you a divorce and you do not have a reason for divorce, you stay married.
There are various defenses to the grounds for divorce; the most obvious is a showing that the claimant did not prove the requirements for the particular ground. Some others are collusion, consent, condonation, unclean hands, provocation, reformation, lack of capacity, antenuptial knowledge, waiver, lack of jurisdiction, fraud and res judicata. Condonation is the forgiveness of a marital offense. Collusion as a defense is a little dated, as it was implemented before people could agree to get a divorce based upon irreconcilable differences. The idea was that fraud was perpetrated on the court to obtain a divorce. The current impact of this is that I will place a "no collusion" affidavit in a fault-based complaint for divorce. The unclean hands defense or "recrimination" is the idea that a person cannot gain relief in chancery court if they are guilty of misconduct themselves. People must come to court with clean hands to gain a divorce.
Lack of jurisdiction means that suit was brought without complying with the statutory requirements for divorce. Res judicata is a Latin phrase that entails one not being able to make the same claim twice to obtain a divorce. The other defenses to divorce are very technical and should be discussed with me if they are applicable or you have questions. If a person wants to be divorced from you, you cannot make that person live with you and carry on as a loving spouse. However, there are tactical advantages to defending a divorce. Often times you can gain a better monetary settlement if your spouse wants a divorce and cannot get it without your cooperation. In other words, "I will not give you a divorce, but I will certainly sell you one."
The third way that people may be divorced in Mississippi is by a combination of the first two. Parties may consent to a divorce on the ground of irreconcilable difference or they may simply not contest that their spouse has a reason to divorce them, but allow the Chancellor to decide whatever issues that they may not be able to agree upon. For example, a divorcing couple may be able to settle all of the issues between them except what, if any, alimony the husband will pay his wife. Typically the parties will enter into a written stipulation that sets out what they agree to and what they do not, which will be entered into evidence as the first order of business in the trial of the issues that remain contested. The Chancellor will decide all of the other issues, and only those issues will be subject to appeal.
Mississippi decides property division based on equitable distribution, and they are the only state in the U.S. that takes the name on the title of property into account.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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