Mississippi Divorce Procedures

Mississippi Divorce Procedures

Complete overview of Mississippi divorce laws for people considering a Mississippi divorce or filing a Mississippi divorce with issues to be resolved about child custody, child support, visitation and alimony.

Mississippi Divorce Residency Requirements

In order to file your Bill of Complaint in Mississippi, you must make sure the Chancery Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Mississippi residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

A spouse must be a resident of the state of Mississippi for a least 6 months prior to filing. If a member of the armed forces is stationed in Mississippi, he or she and his or her spouse is considered a resident. The divorce should be filed in the county in which either spouse resides if they are both residents and if the plaintiff is the only resident then in the county in which he or his resides.

(Mississippi Code – Section 93 – Chapters: 5-5, 5-11)

Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Mississippi. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the Mississippi residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

Mississippi Grounds for Divorce

The Bill of Complaint for Divorce is the initial document filed with the Mississippi court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

A divorce will be granted by the court for the following grounds:

No-Fault Based Grounds:
(1) Irreconcilable Differences

Fault Based Grounds:
a) Impotence; b) Adultery; c) Imprisonment, Felony Conviction; d) Drug or alcohol abuse; e) Insanity for a period of at least 3 years; f) wife being pregnant by another without spouse knowing it; g) Willful desertion for a period of at least 1 year; h) Cruel and inhuman treatment; i) one spouse lacking mental capacity to consent to terminating the marriage; j) incest.

(Mississippi Code – Section 93 – Chapters: 5-1, 5-2, 5-7)

Every divorce case that is filed in the state of Mississippi must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

Mississippi Uncontested Divorce

To file for a divorce in Mississippi, one of the spouses must have been a resident of the state for at least six months, not merely a resident to obtain a divorce. A servicemember is considered a resident if he or she and a spouse are stationed in the state. A divorce on grounds of irreconcilable differences can be filed in a) the county where either spouse resides, if both spouses are residents of Mississippi and b) the county where a spouse resides if the other spouse is not a resident of the state. A divorce sought on fault grounds should be filed in the county where the Defendant resides if her or she is a resident of Mississippi, b) the county where the Plaintiff resides if the Defendant is not a resident of the state, or c) the county where the spouses last resided together prior to separating if the Defendant is still a resident of the state.

Grounds for divorce are No-Fault, which is irreconcilable differences, as well as general grounds of 1) impotence, 2) adultery, 3) imprisonment, 4) alcoholism and/or drug addiction, 5) confinement for incurable insanity for at least three years before the divorce is filed, 6) wife pregnant by another man without the husband’s knowledge; 7) willful desertion for a year, cruel and inhuman treatment, 9) spouse lacked mental capacity to consent (including incapacity from alcohol and drug use), and 10) incest.

Divorce actions are filed in the Chancery Court of the county. The person filing the action is called the Complainant; the party responding is called the Defendant.

There is no legal separation in Mississippi.

A No-Fault divorce on grounds of irreconcilable differences is granted if 1) a Joint Complaint for Divorce is filed by both spouses or 2) a Bill of Complaint is filed and a) the Defendant has entered an appearance by written waiver of process or b) has been personally served with divorce papers. The parties may incorporate written agreements for the care and custody of any children and the division of all property into the divorce judgment. If, however, the spouses cannot agree, they must consent to allow the court to decide all contested issues. There is a 60-day waiting period after the filing before any hearing is scheduled. A Complaint meeting the above qualifications is taken as proved, and no addition proof is required. If one spouse denies there are irreconcilable differences, a divorce may not be granted on these grounds.

Here are some of the forms that must be filed for a divorce in Mississippi:

a) Bill of Complaint for Divorce, which identifies the parties and states the grounds;

b) Verification, which authenticates, under oath, the truth of the Complaint;

c) Marital Settlement Agreement, which describes the terms and conditions of the division and distribution of the marital estate;

d) Financial Disclosure Statement (Complainant), which profiles the finances of the person initiating the action;

e) Financial Disclosure Statement (Defendant), which profiles the finances of the person responding to the action;

f) Affidavit Regarding the Children, which authenticates the residence and custody of the children of the marriage, if applicable;

g) Child Support Computation Worksheet, which shows the calculation of child support based on state guidelines;

h) Child Support Guidelines, which deal with the calculation of child support;

i) Acknowledgment, Acceptance of Service and Appearance, which is used when the Defendant enters and appearance in the case and waives service of process;

j) Request for Hearing, which is used to schedule a hearing in the action;

k) Notice of Hearing, which gives the Defendant notice of the divorce hearing;

l) Decree of Divorce, which when signed ends the marriage.

Mississippi Simplified Divorce Procedures

A no-fault divorce on the grounds of irreconcilable differences will be granted if: (1) a joint bill of complaint for divorce is filed by both the husband and wife or (2) a bill of complaint has been filed and: (a) the defendant has entered an appearance by written waiver of process or (b) has been personally served with the divorce papers. In addition, if there is a written agreement between the spouses for the care and custody of any children and for the division of all property, the court may incorporate such an agreement into the divorce judgment. If the spouses cannot agree on the terms of an agreement, they must consent to the divorce in writing and consent to allow the court to decide all contested issues. There is a 60-day waiting period after filing before a hearing may be scheduled. A bill filed meeting these qualifications will be taken as proved and no testimony or proof will be required at the hearing. However, if the defendant denies that there are irreconcilable differences, the divorce may not be granted on these grounds.

[Mississippi Code Annotated; Section 93, Chapter 5-2].

Each state has its own unique filing procedure. When filing for divorce in Mississippi, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Mississippi Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Mississippi Laws and the filing requirements.

Mississippi Property Division Factors

In Mississippi, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Chancery Court within the Decree of Divorce.

Mississippi is referred to as a “Title” state. When the parties are unable to reach a settlement, the Chancery Court will take the following approach to dividing the assets; First, it will go though a discovery process to find out who has title to what property. Second, under normal conditions, the spouse who has title will be awarded that property.

Mississippi Spousal Support/Maintenance/Alimony Factors

In Mississippi the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Chancery Court will order support from one spouse to the other on a case-by-case basis as follows:

The court will make a support award that it believes to be appropriate and fair to both spouses. In doing so, the court will consider the following factors, but not limited to; 1. income and expenses of each spouse; 2. the spouse’s health and medical condition; 3. the spouse’s needs and debt obligations; 4. the custodial award; 5. the ages of the spouse’s; 6. the standard of living while married; 7. tax consequences; 8. any marital fault or misconduct; and dissipation of assets.

(Mississippi Code – Section 93 – Chapters: 5-23)

Mississippi Child Custody Factors

In Mississippi, the court will award child custody with the best interest of the children in mind. The court will award sole or joint custody at any time it deems appropriate. If the parties are filing under the no-fault grounds of irreconcilable differences, they may both a agree to a joint custody arrangement and the court will except that this is what is best for the children. If the divorce is filed on fault grounds, either parent has the right to petition for joint custody. The court will consider the wishes of a child if he or she is 12 years or older. Any accusation of abuse will be investigated by the court.
(Mississippi Code – Section 93 – Chapters: 5-23, 5-24, 11-65)

In Mississippi, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Mississippi Child Support Factors

Child support may be ordered as the court finds just and equitable. Where both parents have income or estates, each parent may be ordered to provide support in proportion to his or her relative financial ability. A parent may be required to provide health insurance coverage for the child, if such insurance coverage is available at a reasonable cost through an employer or organization. A bond or sureties may be required to guarantee payments. There are specific child support guidelines contained in the statute.

[Mississippi Code Annotated; Section 93, Chapters 5-23 and 11-65 and Section 99, Chapter 19-101].

Mississippi child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Mississippi child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Mississippi child support deviation factors that may be applicable to the situation.

Mississippi Grandparent’s Rights

Grandparent Rights to Visitation: Visitation may be granted to the parents of a parent who is not awarded custody in a proceeding in Mississippi, to the parents of a parent whose parental rights have been terminated, or to the parents of a parent who has died. If the court finds that the grandparent of the child has established a viable relationship with the child and the parent or custodian of the child has unreasonably denied the grandparent visitation and that the visitation would be in the child’s best interest, any grandparent can file. Title 93, Section 93-16-1 (M.C. §93-16-1 et. seq.).

When Adoption Occurs: Visitation rights terminate upon adoption by anyone other than a stepparent or if one of the child’s adopted parents was related to the child by blood or-marriage before the adoption.

Child Custody Statutes: No statutory factors. Child may choose if at least 12 years of age. Court may require a custody plan from the parties. M.C. §93-13-1 et seq. and 93-23-1 et seq.

Parents May Choose: Yes

Mississippi Military Divorce Laws

A Mississippi military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Mississippi Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Mississippi court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Mississippi court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in Mississippi
b) You or your spouse must be stationed in Mississippi

Grounds for Mississippi Military Divorce

The grounds for a military divorce in Mississippi are the same as a civilian divorce.

Dividing the Property

Along with the normal Mississippi property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Mississippi, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Mississippi child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Mississippi Child Support Guidelines

The Mississippi child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Mississippi child support order.

Mississippi Child Support Guidelines:

Income Share Model *: NO
Percent of Income Model *: YES
Worksheets Available: YES
Extraordinary Medical Expenses Add on: NO
Childcare Add on: NO
Secondary Education Support: NO
UIFSA: NO

* Percent of Income Model: Mississippi utilizes the percentage of income formula which determines the amount of child support as a percentage of the income of the parent obligated to pay the child support. This percentage is determined by factoring the number of children requiring support. This is the most basic or primitive method for calculating support. Many people believe that it does not take into consideration many important details, which makes this model of support calculation the least exact.

Mississippi Child Support Definitions

1) The following child support award guidelines shall be a rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state:

Child/Percentage
1 – 14%
2 – 20%
3 – 22%
4 – 24%
5 or more -26%

2) The guidelines provided for in subsection (1) of this section apply unless the judicial or administrative body awarding or modifying the child support award makes a written finding or specific finding on the record that the
application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Section 43-19-103.

3) The amount of “adjusted gross income” as that term is used in subsection (1) of this section shall be calculated as follows:

a) Determine gross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; absent parent’s portion of any joint income of both parents; workers’ compensation, disability, unemployment, annuity and retirement benefits, including an individual retirement account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse;

b) Subtract the following legally mandated deductions:

i) Federal, state and local taxes. Contributions to the payment of taxes over and beyond the actual liability for the taxable year shall not be considered a mandatory deduction;

ii) Social security contributions;

iii) Retirement and disability contributions except any voluntary retirement and disability contributions;

c) If the absent parent is subject to an existing court order for another child or children, subtract the amount of that
court-ordered support;

d) If the absent parent is also the parent of another child or other children residing with him, then the court may subtract an amount that it deems appropriate to account for the needs of said child or children;

e) Compute the total annual amount of adjusted gross income based on paragraphs (a) through (d), then divide this amount by twelve (12) to obtain the monthly amount of adjusted gross income.

Upon conclusion of the calculation of paragraphs (a) through (e), multiply the monthly amount of adjusted gross income by the appropriate percentage designated in subsection (1) to arrive at the amount of the monthly child support award.

4) In cases in which the adjusted gross income as defined in this section is more than Fifty Thousand Dollars ($50,000.00) or less than Five Thousand Dollars ($5,000.00), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.

5) The Department of Human Services shall review the appropriateness of these guidelines beginning January 1, 1994, and every four (4) years thereafter and report its findings to the Legislature no later than the first day of the regular legislative session of that year. The Legislature shall thereafter amend these guidelines when it finds that amendment is necessary to ensure that equitable support is being awarded in all cases involving the support of minor children.

RESEARCH REFERENCES
ALR. Change in financial condition or needs of parents or children as ground for modification of decree for child
support payments. 89 A.L.R.2d 7.

Excessiveness or adequacy of money awarded as child support. 27 A.L.R.4th 864.

Excessiveness or adequacy of amount of money awarded for alimony and child support combined. 27 A.L.R.4th 1038.

Application of child-support guidelines to cases of joint-, split- or similar shared-custody arrangements. 57 A.L.R.5th 389.

AM JUR. 24 Am. Jur. 2d, Divorce and Separation §§ 1018 et seq.

LAW REVIEWS. 1989 Mississippi Supreme Court Review: Child Support. 59 Miss. L. J. 891, Winter, 1989.

DEVIATION FROM GUIDELINES.

Where the chancellor awarded no child support in connection with an award of split custody, but did not cite the statute in reasoning its deviation from the guidelines, the matter would be remanded for the chancellor to specifically reference, in writing, why the statutory guidelines were inappropriate or unjust. Brocato v. Brocato, 731 So. 2d 1138 (Miss. 1999).

FINDINGS OF FACT.

Under subsection (2) of this section, an on-the-record finding as to the applicability of the child support guidelines is required on both the initial award of child support and any subsequent modification of child support. Turner v. Turner, — So. 2d — (Miss. Ct. App. 1999).

NEEDS OF OTHER CHILDREN.

Subsection (3)(d) of this section does not allow for a deduction for children of a noncustodial parent’s subsequent spouse. Kilgore v. Fuller, 741 So. 2d 351 (Miss. Ct. App. 1999).

MODIFICATION OF SUPPORT.

The chancellor erred in not referencing the statutory guidelines in making his specific findings of fact regarding an increase in child support. Wallace v. Bond, — So. 2d — (Miss. 1999).

The court erred in increasing the amount of child support to be paid by a father for his teenage daughter where the guidelines provided for an award of 14 percent of the father’s adjusted gross income and the award was 22 percent of his adjusted gross income. Kilgore v. Fuller, 741 So. 2d 351 (Miss. Ct. App. 1999).

RETROACTIVITY OF AWARD.

The court properly made a modification of child support retroactive to the date that the petition was filed, rather than the date the order was entered, notwithstanding that the modification was based in part on an annual bonus received after the date that the petition was filed; the chancellor was justified in including the bonus received in July in the appellant’s income for the whole year, not just for the latter half of the year. Alderson v. Morgan ex rel. Champion, 739 So. 2d 465 (Miss. Ct. App. 1999).

CHILD SUPPORT PRINCIPLES AND SUMMARY

Child support may be ordered as the court finds just and equitable. Where both parents have income or estates, each parent may be ordered to provide support in proportion to his or her relative financial ability. A parent may be required to provide health insurance coverage for the child, if such insurance coverage is available at a reasonable cost through an employer or organization. Bond or sureties may be required to guarantee payments.

[Mississippi Code Annotated; Section 93, Chapters 5-23, and 11-65].

Mississippi Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Mississippi Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Complainant

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Defendant

The spouse who does not initiate the Divorce with the court.

Court Name:
Chancery Court of ___________ County, State of Mississippi

The proper name of the court in which a Divorce is filed in the state of Mississippi. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Bill of Complaint of Divorce

The title and name of the legal document that will initiate the Mississippi Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Decree of Divorce

The title and name of the legal document that will finalize the Mississippi Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
Office of the Clerk of the County Chancery Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

There is no specific legal provision in Mississippi for legal separation.

Property Distribution:
Title Property

The applicable Mississippi law that will dictate how property and debt is to be divided upon Divorce.

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