1. I’ll get half of everything.

False (sort of). The popular belief is that each spouse is entitled to half of what the couple owns together. That is, for the most part, true in a community property state. However, Mississippi follows the doctrine of equitable division.

Under equitable division, the judge attempts to achieve a fair and equitable division of the marital property. The judge will consider a number of factors, including

• The length of the marriage;
• Tax consequences of the property division;
• Income and earning potential of each spouse;
• The contribution by each spouse to the accumulation of assets;
• … and more.

So, it is possible that you will get half of your combined assets, but there is no guaranty that such a result will happen.

2. I’ll get all of the property because my spouse is at fault for the divorce.

False.  As stated above, the judge will attempt to achieve an equitable result in the division of the property. Of all the factors to be considered, fault is not even named.

There is a “catch-all” factor, and that is presumably where fault can be considered. Even so, a judge is not to use property division to punish an at-fault spouse. This means that it is almost impossible that one party will bet all of the marital property just because the other was at fault.

3. I’ll get the kids because I’m the mother.

False (and true). There used to exist what was known as the tender years doctrine. This doctrine called for mothers to be given preference for custody of young children. It was based on the belief that a female is more caring, nurturing, and loving than a male.

The tender years doctrine now appears as one factor among many for the judge to consider. Those factors, called the Albright factors, are:

• Age, health, and sex of the child;
• Continuing care of child prior to separation;
• Parenting skills;
• Capacity to provide primary child care & employment responsibilities;
• Physical & mental health and age of children;
• Emotional ties of child and parent;
• Moral fitness;
• Home, school, and community record of the child;
• Preference of a child twelve or older;
• Stability of the home environment and employment of each parent; and
• Other factors the judge believes relevant

My opinion, however, is the Albright factors tends to favor mothers. This is because mothers are typically the primary caregivers of the children, which results in closer emotional ties, and more easily proven parenting skills. I have seen men win custody of children, but it is typically only when the judge finds some problems with the moral fitness of the mother.

4. I can get a no-fault divorce.

Not in Mississippi. A true no-fault divorce can be filed by just one spouse. You can, without having any reason, unilaterally decide you want to end your marriage.

Mississippi does not have a true no-fault divorce. We have fault-based divorces and irreconcilable differences divorces. In a fault-based divorce, you will have to prove you are entitled to a divorce. An irreconcilable differences divorce requires both spouses to agree to the divorce, and they can also agree to child custody, alimony, and property division, or leave any combination of those considerations up to a judge to decide.

5. I can’t get a divorce because I’m pregnant.

True & false. Mississippi law contains no provision prohibiting a divorce when the wife is pregnant. Most judges, though, will not grant a divorce if the wife is pregnant.

The reason behind this is that there is a presumption that the husband is the father of any child born during the marriage. By delaying the divorce until after the child is born, the husband will be responsible for any child support unless he can prove the child is not his. If the divorce was granted before the child was born, there would only be one parent, the mother, responsible for support of the child.

As stated above, to obtain an ID divorce, both parties must give written consent to the divorce. This can be done where both spouses agree to the divorce from the beginning, and they both sign a joint complaint.An ID divorce can also be granted when a divorce began life on fault grounds. In that situation, the fault-based grounds will have to first be dismissed and a written consent to an ID divorce filed with the court.

The courts (and lawyers) definitely prefer when the parties to an ID divorce agree to child custody, child support, alimony, and property division. Such a divorce is usually granted within a few minutes once it has its day in court. However, if the spouses cannot agree to all of the above-listed issues, then the spouses may give written consent to the court to decide those issues on which they can’t agree.

This is why I do not like the term “uncontested divorce” when it is used as a synonym for an ID divorce. Many prospective clients will tell me they have agreed to an uncontested divorce with their spouse. Upon further questioning, though, I learn that they don’t agree on whether alimony will be paid, or child custody, or …. In my book, that’s not an uncontested divorce. If there’s some fighting left to do, I don’t call it uncontested.

Once the divorce is filed, it must remain on file for at least 60 days (not including the day on which it was filed). This is a “cooling-off” period that allows people to reconsider the divorce. If, at any time prior to the divorce being granted, one of the spouses revokes their consent, the ID divorce cannot proceed unless the consent is reinstated.

The bases on which a divorce may be granted in Mississippi are to be strictly construed by the courts. This means that if you don’t meet the requirements just so, the courts should not grant the divorce on the basis on which it is sought. This is one of several reasons why I recommend people do not try to obtain a divorce without a lawyer.

Under Mississippi law, there are two broad categories of divorces: irreconcilable differences and fault-based. I will very briefly describe each of those categories in this post.

Although many people refer to an irreconcilable differences (ID) divorce as “no-fault,”  that characterization is, strictly speaking, incorrect. Both spouses must give their written consent to an ID divorce before it may be granted. A true no-fault divorce may be granted with only one of the spouses consenting to it.

If you wish to proceed on fault, then Mississippi recognizes 11 different grounds: (1) adultery; (2) habitual cruel and inhuman behavior; (3)habitual drunkenness; (4) habitual drug use; (5) bigamy; (6) insanity at the time of marriage; (7) wife’s pregnancy by another at the time of marriage; (8) desertion; (9) imprisonment for a period of more than one year; (10) natural impotency; and (11) institutionalization for insanity during the course of the marriage. Of these, the most common two grounds are adultery and habitual cruel and inhuman behavior.

You can find more information on irreconcilable differences divorces and those based on fault in other posts.