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Mississippi Terms and Definitions for Divorce
Prenuptial agreements are documents signed before marriage that set out the terms of dissolution of a marriage as a result of death or divorce. If you signed one of these, it is important for me to know. We may want to defend the terms of the agreement or we may want to see if there is any way to overcome the terms of the agreement for a number of technical reasons. The law as it relates to these agreements changes a great deal, and most Mississippians do not have prenuptial agreements.
Postnuptial agreements are often signed when divorce is a possibility, but the parties want to attempt to make their marriage work. A postnuptial agreement contemplates reconciliation, but deals with the terms of a divorce if the marriage fails.
There is no such thing as a legal separation in Mississippi. One is either married or not. In a contested divorce proceeding or one based upon grounds, one party or the other may ask for temporary relief, and if granted, the effective order is tantamount to a "legal separation", but neither party is free to date or conduct him or herself as a single person for any legal purpose until they are actually divorced. There is also such a thing as separate maintenance, which is alternative to divorce and entails the entry of an Order similar to one for temporary relief, which sets out the parties' respective obligations during the parties' separation. The types of issues that are addressed in a temporary order and an order for separate maintenance are child custody, visitation, child support and related matters, life insurance, health insurance, alimony, use of the martial domicile, use of personal property and vehicles, payment of debts and other issues that parties face while living separate and apart. Separate maintenance ends when the parties resume cohabitation, and it is not uncommon for a husband who is paying separate maintenance to magically decide to come home.
An annulment is a decree that invalidates a marriage from its inception. The decree is based upon some defect that existed at the inception of the marriage. Situations that would constitute an annulment are rare, but they may occur if the marriage is void due to bigamy or incest. Marriages may also be annulled in the case of incurable impotency, insanity or failure to comply with the statutory provisions for marriages when a marriage was not followed by cohabitation. A marriage may be annulled if either of the parties to a marriage is incapable of getting married due to age or inability to understand or consent to a marriage, or due to a marriage procured by force or fraud. Finally, a marriage may be annulled if the wife is pregnant by another person and the husband did not know of such pregnancy. An annulment suit must be brought within six months after the ground therefore is discovered, and annulment is separate and apart from divorce and does not affect the thirteen total grounds for divorce.
Divorce actions take place in chancery court and are heard by a chancellor. Other matters that are heard in chancery court are matters of estate when a person dies; minor's business; cases dealing with persons of unsound mind; and cases dealing with real estate. There is no jury in a divorce case and the trial is held in open court.
Laws related to divorce vary greatly from state to state. Mississippi is a good place to live if you would like to stay married and your spouse has no reason to divorce you, but it is not a great place to live when it comes to payment of child support. Our child support guidelines are some of the lowest in the nation, but they do extend to age twenty-one, whereas some states stop at age eighteen. To be eligible for a divorce in Mississippi, you or your spouse must be an actual resident within this state for six months before you file. If you are a member of the armed services of the United States and are stationed in the state and residing within the state with your spouse, you will be considered a resident, provided you were here at the time of your separation. In any case where residence is acquired in this state with a purpose of securing a divorce, the court will not hear the case.
Venue means the county that will hear your divorce. Venue is very important because different chancellors have different interpretations of our laws that may be beneficial or harmful to your case. Chancellors do not always follow the law to the letter, because they may not understand the law or they may know that in certain instances an appeal is impractical or too expensive. I am very familiar with all of our local chancellors, and there are some that I would prefer to hear your case than others. Some know and follow the law, but others have no real grasp of what being fair and equitable means. We have many good judges, but we also have many bad judges. We have many hard working judges, but we also have many lazy judges.
Basically, all divorce complaints, except those based solely on the ground of irreconcilable differences, must be filed in the county in which the person filing first lives if the spouse lives out of state or is absent from the state. However, if your spouse is also a resident of Mississippi, the complaint will be filed in the county in which he or she resides or may be found, or in the county where you and your spouse lived at the time of separation, so long as the person filing is still a resident of that county.
A complaint for divorce based solely on the grounds of irreconcilable differences can be filed in the county of residence of either party if both parties are residents of this state. If you or your spouse is not a resident of this state, the complaint shall be filed in the county of the person living in Mississippi.
The Mississippi court determines child custody based on the best interests of the child. The court can award sole or joint custody, and if the child is 12 years old or older, the court considers the wishes of the child.
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