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.

• Be sure he is gone. It is best if he is far enough away that he cannot get back in time if he is alerted.
• Be prepared for the possibility he may have alerted a neighbor to keep an eye on things for him.
• Move fast. Make sure all arrangements are made ahead of time and the timing is closely coordinated.  Have enough people there at once to get the job done fast (note, however, the more commotion you cause, the greater the likelihood of being caught).
• Identify what you want to take before you go so you do not have a delay in deciding.
• Take what you must have; if you leave it, kiss it good bye.
• If you have a connection with local law enforcement, let them know what you are doing. Law enforcement are fickle on this issue. I have had some prevent a move when they were alerted by the other spouse.
• Be careful not to damage things or to destroy the home. This will be used against you.  You might even want to take pictures of what you left and the condition you left the house in.
• Either parent has equal access to children until a court order is entered.  You may take your child with you, but, remember, if you leave your child somewhere to which he has access without trespass, he can go get the child back. (Mississippi law)

Mark has more good tips there as well.

I would just add that if you are taking your children with you, it is best to allow some contact between them and your spouse. The judges I’m usually before do not like it when one spouse “abducts” the children from the other.