Divorce – State FAQ – Mississippi
Residency requirements, venue and procedures
Q: How long must I have lived in Mississippi prior to filing for divorce in an Mississippi court?
A: In order to file a fault or no-fault divorce, one party must be a resident of Mississippi for at least 6 months before filing for divorce.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Mississippi, proper venue for the divorce action is the Chancery Court. A complaint for divorce based solely on the grounds of irreconcilable differences shall be filed in the county of residence of either party where both parties are residents of the state. If one party is not a resident of the state, then the complaint shall be filed in the county where the resident party resides.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Petition for Divorce, while the title of the order granting the divorce is referred to as the Decree or Judgment of Divorce.
Q: Are there any waiting periods associated with a divorce action?
A: A waiting period of 60 days after filing the joint complaint is required before a divorce may be granted.
Grounds for Divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Mississippi. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Mississippi?
A: Mississippi law allows for no-fault divorces, no fault divorces with contested issues, and fault divorces. The no-fault divorce is based upon irreconcilable differences and may only be granted were both parties agree to a divorce. If both parties agree to the divorce, but cannot agree on all aspects of custody, property division, etc., then they can let the court decide these matters (this is a no-fault divorce with contested issues).
If the parties do NOT agree to get divorced, then one party must seek the divorce based on one of twelve recognized grounds. These include:
1. Habitual cruel and inhuman treatment;
3. Being sentenced to any penitentiary;
4. Desertion for one year;
5. Habitual drunkenness;
6. Habitual and excessive use of opium, morphine or other like drug (including addiction to prescription drugs);
7. Natural impotency;
8. Insanity or idiocy at the time of marriage, if the party complaining did not know of such infirmity;
9. Marriage to some other person at the time of the pretended marriage between the parties;
10. The wife’s pregnancy by another person at the time of the marriage, if the husband did not know of such pregnancy;
11. Incest; and,
12. Incurable insanity.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: The court will consider a wide range of factors and has broad discretion in determining whether to award alimony and how much to award.
Q: On what basis does the court decide how marital property is divided?
A: Mississippi is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in determining property division.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: Can grandparents be awarded visitation rights in Mississippi?
A: Yes. Grandparents can be awarded visitation rights even after being denied visitation by the parents if visitation would be in the best interest of the child and that the grandparent had established a viable relationship with the child and the parents had unreasonably denied such visitation rights.
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court may award custody of the children in a divorce to wife, husband or joint custody. Provisions in separation agreements are not binding on the court. The court looks to the best interest of the children. Mississippi allows physical and legal custody. Joint custody is also allowed if the court finds that joint custody is in the best interest of the children. Custody shall be awarded as follows according to the best interests of the child:
1. Physical and legal custody to both parents jointly;
2. Physical custody to both parents jointly and legal custody to either parent;
3. Legal custody to both parents jointly and physical custody to either parent; and,
4. Physical and legal custody to either parent.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Mississippi has adopted guidelines for child support. The guidelines are based on the number of children:
Children – Percent of Adjusted Gross Income 1 child – 14% 2 children – 20% 3 children – 22% 4 children – 24% 5 or more children – 26%
The guidelines may be modified by showing various factors (see the Law Summary for the form package you select).