Divorce is a legal proceeding which dissolves a marriage between a man and a woman, called husband and wife. After the divorce is finalized and the marriage is dissolved, both the man and woman are free to remarry whomever they choose.
Every state in the United States requires that the spouse who files for divorce, known as the plaintiff, is a resident of the state in which their divorce is filed. The requirements for residency varies by state but is usually between 6 months to 1 year.
Additionally, each state has its own procedures for divorce proceedings. Most states have adopted a no fault divorce system while other states still retain a fault divorce system. In Mississippi, a divorce can be either no fault or fault.
In a no fault divorce, the spouse who is filing for the divorce is not required to allege any fault or wrongdoing on behalf of either party in order to obtain a divorce. Some states require spouses to declare that they are no longer able to get along. In addition, some states require that the divorcing couple reside separately for a specified period of time, which may be months or years, prior to filing for a no fault divorce.
The only no fault ground for divorce in Mississippi is irreconcilable differences. This means that the spouses are no longer able to get along and there is no reasonable chance they will get back together.
In order for spouses to obtain a divorce based on irreconcilable differences, pursuant to Mississippi law, both spouses must agree those differences exist. If one of the spouses does not agree, the spouse seeking the divorce must prove that the other spouse committed one of the fault grounds listed below.
In a fault divorce, on the other hand, a spouse who is filing for divorce must provide a reason why the divorce should be granted. The rules regarding fault divorces and the justifications that can be provided vary by state. Commonly cited fault reasons in a divorce include:
- Cruelty, or the infliction of unnecessary or emotional pain;
- Adultery;
- Desertion for a specified period of time;
- Incarceration for a set number of years; and
- The physical inability to consummate the marriage.
In Mississippi, there are several possible fault grounds on which a divorce will be granted. These include:
- Natural impotence;
- Adultery;
- Criminal conviction and a sentence of incarceration;
- A willful and continued desertion for at least 2 year;
- Habitual drunkenness;
- Habitual and excessive use of opium, morphine, or another similar drug;
- Habitual cruel and inhumane treatment, which includes spousal domestic abuse;
- One spouse having a mental illness or an intellectual disability at the time of the marriage that the other spouse was unaware of;
- Bigamy, or being lawfully married to another individual at the time of the marriage;
- A wife’s pregnancy by another man at the time of the marriage, which the husband was unaware of; and
- The hospitalization or institutionalization of one spouse for 3 years due to mental illness.
Legal separation occurs when spouses separate and seek court approval. It typically involves a court order outlining the legal rights and obligations of the spouses.
A legal separation is a more formal separation than a trial separation because the terms are reviewed and approved by a court. Legal separations do not dissolve marriages.
Legal separations may include many of the same issues that are resolved through divorce proceedings, including the distribution of assets and child custody issues, the spouses remain legally married. On the other hand, when spouses divorce, their marriage is dissolved and they are free to remarry, as noted above.
In Mississippi, spouses may seek a legal separation or a divorce, depending on their situation and their needs. In some cases, a legal separation is used when the spouses are living separately but there is a possibility the marriage can be saved. It may also be used to allow one spouse to retain a benefit of the marriage, such as health insurance.
A divorce, however, is the final and legal end of a marriage. The differences between a legal separation and a divorce may become very nuanced.
For example, a legal separation may permit the husband and wife to begin accumulating assets separate from the marriage. These assets, therefore, would not be included in a divorce proceeding.
A spouse must be a resident of Mississippi for at least 6 months prior to filing for divorce. There is also a 60 day waiting period. This means the spouses will have to wait 60 days after filing for divorce for a court to hear the case.
