No two cases are exactly alike. While people’s lives can seem similar for sure, what appears to be subtle distinctions on the surface can make a huge difference as to how a situation will turn out. What follows are ten things everyone should know about divorce in Mississippi, dispelling a few common misconceptions:
- There must be an agreement or a reason to divorce in Mississippi. This fact doesn’t just puzzle people faced with divorce, family law attorneys who practice in other states think it is bizarre as well. Mississippi is in a small minority of states viewing marriage through this lens. Notwithstanding an annual try by a few brave legislators, our state simply refuses to make it easier to get a divorce. Because proving a legal reason is often pretty difficult, it puts the more motivated spouse in a less leveraged position. Simply stated, whether or not grounds for divorce exist can create unjust outcomes.
- There is nothing magic about sixty-days. A request for an irreconcilable differences has to be on file for sixty-days before it is granted. Other than that, there is nothing special about sixty-days in Mississippi divorce law. Many people think after the sixty-days have elapsed you are automatically divorced, and this is not true.
- Kids who turn twelve get a say not a choice. Another common misconception is once a child is twelve, he or she can pick their primary custodian. This is not true. Child custody is always governed by the best interest of a child. Best interest in an original custody action is measured by a list we call the Albright Factors. A child’s choice is one of them, but it is not necessarily controlling. In a custody modification case, you usually have to prove a material change in circumstances and an adverse affect on the child before you even get to the Albright analysis, with the child’s choice again being but one of twelve.
- Leaving the house is not the same as abandoning a marriage. Many people have good reasons to physically separate, and this does not start the clock for desertion, also called abandonment. Abandonment to be legally recognized takes a full year, and the spouse left behind must be ready and willing to resume the marital relationship during that time. Abandonment can also happen within the home when a spouse unplugs from the marital relationship and the two live separate lives, even though they are under the same roof.
- Having sex does not necessarily make all legal grounds for divorce null and void. If the spouse at fault makes a full confession of their wrong behavior and the innocent spouse accepts their confession and the couple resumes physically intimacy, all grounds for divorce can be considered forgiven or condoned. However, continuing the bad behavior can revive the grounds, and one cannot forgive something they did not know.
- Equitable distribution does not mean equal distribution. Mississippi is an equitable distribution state. This does not necessarily mean everything will be divided equally down the middle, as multiple factors are considered, which are called the Ferguson Factors.
- Alimony is alive and well. I have sat with more than one person who thought alimony awards are outdated. The truth is alimony is alive and well in Mississippi, although we do not have hard and fast statutory guidelines like we do with child support. As equitable distribution increases, alimony recedes. As equitable distribution decreases, the likelihood of alimony increases. There are multiple types of alimony, but the factors making up an award of alimony are amount, duration, modifiability, tax consequences, and the effect of remarriage and/or death.
- There is no such thing as legal separation in Mississippi. Unlike some states, in Mississippi you are married until you are divorced. There is no middle ground legal distinction. The closest thing we have to a legal separation is when two people are living under the terms and conditions of a temporary order or order for separate maintenance, which is an interim court ruling saying who pays what and how any children will be co-parented.
- Divorce is hard. There is no such thing as an easy divorce. They simply do not exist. While some divorces have less legal issues or more acrimony than others, all are raw with emotion and sorrow, and your kids will be impacted. Believe it or not, I firmly stand on the premise that reconciliation is no more difficult than divorce, which is why I almost always encourage a client to explore individual counseling to make sure they are positive about their chosen path.
- You need an attorney. Attempting to do your divorce on your own or with a discount attorney is a mistake you are almost certain to regret. Solid legal representation is the foundation of your new life, and you should choose wisely when it comes to choosing your counsel.
