Many clients are, at first, indecisive about whether they should get divorced on the ground of “IRRECONCILABLE DIFFERENCES” or whether they should file a “FAULT” or what is more commonly known as a “CONTESTED DIVORCE.”
1. You should know that in order to file an “irreconcilable differences” (a so-called “no-fault”) divorce, you and your spouse must first agree to get a divorce on that ground, but just as importantly and more difficult to resolve are questions involving, custody and visitation with children, child support, alimony (if any) and division of property.
You cannot get a “no-fault” divorce without agreement in these areas.
2. If you and your spouse can agree to at least getting a divorce on “irreconcilable differences,” you can submit the other issues (child custody, child support, alimony, division of property) or any combination thereof, to a judge for decision.
So, the fact that you and your spouse can’t agree to everything does not mean that you cannot get a no-fault divorce.
3. If you and your spouse cannot agree to a divorce on the ground of irreconcilable differences and there is just too much disagreement about the other issues mentioned above, then the only way to get a divorce is a “fault” divorce in which you must sue your spouse for divorce and claim that spouse committed one or more of the several grounds for divorce in Mississippi.
4. In the fault divorce, at least at the beginning, all issues are for the judge to decide. That means the judge decides whether you have proven your ground or grounds for divorce against your spouse and then the judge will decide who gets the kids, how much the non-custodial parent pays in child support, how much and when the non-custodial parent gets visitation with the children, whether a spouse gets alimony (and yes, it is possible for a husband to get child support and alimony) and division of property.
5. In almost every “contested divorce” filed there are alleged “fault grounds” as well as “irreconcilable differences” as a ground for divorce. This is done because, after litigation is commenced, the parties may well reconsider their positions, agree to all the matters required to be agreed to for a no-fault, and the divorce can proceed as a no-fault divorce.
6. However, if the parties just cannot agree to the matters necessary to do a no-fault divorce, then the case proceeds as a fault divorce. The most common grounds for a fault divorce are habitual cruel and inhuman treatment, adultery and desertion.
There are 12 grounds for divorce in Mississippi, and here they are:
- First. Natural impotency.
- Second. Adultery, unless it should appear that it was committed by collusion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after a knowledge by complainant of the adultery.
- Third. Being sentenced to any penitentiary, and not pardoned before being sent there.
- Fourth. Willful, continued and obstinate desertion for the space of one (1) year.
- Fifth. Habitual drunkenness.
- Sixth. Habitual and excessive use of opium, morphine or other like drug.
- Seventh. Habitual cruel and inhuman treatment.
- Eighth. Having mental illness or an intellectual disability at the time of marriage, if the party complaining did not know of that infirmity.
- Ninth. Marriage to some other person at the time of the pretended marriage between the parties.
- Tenth. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy.
- Eleventh. Either party may have a divorce if they are related to each other within the degrees of kindred between whom marriage is prohibited by law.
- Twelfth. Incurable mental illness. However, no divorce shall be granted upon this ground unless the party with mental illness has been under regular treatment for mental illness and causes thereof, confined in an institution for persons with mental illness for a period of at least three (3) years immediately preceding the commencement of the action.
7. In the case of a contested divorce, a complaint will be filed with court, and the complaint and a summons served on your spouse. Very often, one party or the other will ask for a “temporary hearing” to establish matters on a “temporary” basis, such as temporary child custody and support and such things as who has possession of the marital home during the pendency of the divorce.
8. The parties then engage in what is known as “discovery.” Discovery can take the form of written questions to the other party asking a variety of things, such as the facts supporting the ground for divorce charged against the other and details about financial matters (in other words, what have you got and where is it?).
Often the depositions of the parties are taken. A deposition is a sworn statement taken under oath conducted by the opposing party’s attorney in which the husband’s or wife’s attorney gets to ask the other spouse questions covering many topics.
My favorite question is…
“Tell me everything you intend to tell the judge in court to support your charge of habitual cruel and inhuman treatment (or adultery or whatever the charge is).”
When children are involved, there will be many questions about and dealing with the fitness of the parent being deposed to have the custody of the children, or why that spouse contends the other should not have custody.
9. Once discovery is completed, the case will be set for trial. At trial the husband and wife will testify, as well as any witnesses or documentary proof presented for the judge to consider in making his/her decision. (Facebook chats, emails and phone records are becoming increasingly used).
10. After hearing all the proof (and this can take days in court to do), the judge will issue his or her opinion and judgment and decide whether one or both of the parties have proven grounds for divorce, and decide who gets the kids, who pays child support, when and how much visitation the non-custodial parent gets and under what circumstances (supervised visitation is sometimes ordered) and division of marital assets, which would include the home, cars, household goods and furnishings, bank accounts, savings accounts, IRA’s, 401ks and any other assets.
The judge will also determine whether an award of alimony should be made and if, so, how much and how paid: in a lump sum, or in periodic payments over a period of time.
11. Of course, after all is said and done, if one or both parties disagree (“are aggrieved” is the legal term) of the judge’s decision, then appeal can be taken to the Mississippi Supreme Court for review of the judge’s decision.