In Mississippi married couples can get a divorce on the ground of “irreconcilable differences.”
Such a divorce eliminates the need to prove one or more of the traditional grounds for divorce, such as habitual cruel and inhuman treatment, adultery, desertion, etc. To get a “no-fault” divorce, the parties must agree to all issues arising from the divorce, such as child custody, child support, visitation, alimony and division of property.
In a contested divorce, however, the parties can agree to a divorce on the ground of irreconcilable differences and submit other issues on which they can’t agree to the Chancellor for decision. After filing with the Court, the parties must wait 60 days to become eligible for grant of the “no-fault” divorce and, during that time, if one or more of the parties changes their mind about either wanting a divorce or the terms agreed to, they may “contest” the divorce and it is immediately dismissed.
Many divorcing couples are under the impression that once a “no-fault” decree of divorce is signed by the Judge, and they are officially divorced, that the agreement they entered into is written in stone thereafter.
Not so… Just like a contested divorce, a no-fault may be later modified.
However, support obligations most certainly can be modified when there is a finding of a material change in circumstances which were not foreseeable at the time of divorce.
The parties are allowed to create their own agreement, then with the chancellor’s approval, the agreement is incorporated into the divorce judgment. A lapse of time will exist between when the parties made the agreement and when the agreement is incorporated into the divorce judgment.
The chancellor should look to when the parties’ agreement was finalized into the divorce judgment when determining if a material change in circumstances, which was not foreseeable at the time of the judgment of divorce, has occurred [Tingle v. Tingle, 573 So. 2d 1389, 1391 (Miss. 1990)]
This point was recently demonstrated in the case of Short v. Short, decided February 6, 2014 by the Mississippi Supreme Court (No. 2011-CT-01096 SCT).
In this case, the husband, in a “no-fault” divorce, had agreed to child support payments of $50,000 per year, never to be less than $36,000 per year. The husband’s payments of support dropped below $36,000 a year, and the wife petitioned the lower court to find him in contempt and to raise the child support payment even above that maximum amount originally agreed.
The husband alleged that his income had decreased to such an extent that he could not make the agreed upon child support payments, even the minimum agreed to, and asked the court to reduce his child support obligation. The lower court required the husband to pay the least amount agreed to, i.e., the $36,000 per year.
The Supreme Court, in a case of first impression (that is, the question had not been decided before) ruled that while the parties should provide escalation clauses because everyone knows that a child’s expense increases over the years, (which had been the law for years), lower courts should in appropriate cases decrease, child support obligations where there had been a material change in the income of the paying party.
So, in the appropriate case, a “no-fault” agreement ain’t. You can read the Short case, in its entirety, here or simply view the case below: