In the State of Mississippi many divorces are termed Irreconcilable differences and in actuality represent the vast majority of divorces in any given chancery court. We often receive calls from people inquiring about a No-Fault divorce and tell us that they wish to pursue their divorce without alleging fault grounds. However when we ask them, “Does your spouse agree with getting divorced?” They quickly answer, “No.” This is one of the most common situations we deal with. They are optimistic that some action can be taken to obtain a No-Fault divorce even in spite of the fact that their spouse won’t agree, either to a divorce in principle or to the terms which will govern division of assets and child custody.
Unfortunately, obtaining a No-Fault divorce requires some steps that aren’t always easily obtained by clients. It is a requirement by the State of Mississippi that both parties agree to the divorce if it is to be granted without fault grounds. All of the issues that are germane or relevant to the marriage must be addressed and upon agreeing, both parties must sign in front of a notary. Some of the issues that are often disputed may include but are not limited to custody and visitation of the children, amount of child support, whether or not health or life insurance will be required, as well as all of the issues surrounding the property of the parties if they do in fact own real property (real estate, a home. Etc.). Often times personal property also becomes an issue and dividing the personal property can often present a conflict as well.
A No-Fault divorce, synonymously termed Irreconcilable Differences in the State of Mississippi, really has nothing to do with whether or not there’s fault alleged in the marriage. Quite often No-Fault divorces are granted by a court in a situation where there’s an allegation of fault by both parties. Under those circumstances both parties would have to file a request with the court to have the fault grounds be dropped and the court would then grant them permission to drop their fault grounds before proceeding with a No-Fault divorce. For the purposes of this discussion, we’re focusing solely on the fact that the State of Mississippi does have some of the toughest divorces laws in the country and insofar that we do not allow a party to obtain a No-Fault divorce simply by being separated from their spouse for a certain amount of time such as which is permitted in some states. Regardless of all the other facts or circumstances in the divorce our clients may seek, if their spouse does not agree to a No-Fault or Irreconcilable Differences divorce in principle (even if an agreement on division of property and issues related to child custody are settled between the parties), there is absolutely no way to obtain one. At this point, discuss with your attorney the option of filing a divorce on fault-based grounds.
My suggestion to anyone who is seeking a No-Fault divorce that is unable to come to an agreement is to possibly have each party sit down with an attorney. It is important to note that one attorney cannot represent both parties in a No-Fault divorce in the Sate of Mississippi or any other State that we are aware of. This is the case because it’s an inherently conflicting set of ideals that would have to be in place in order for a party to be represented by the same person as their spouse. In other words, there’s too much propensity for those two parties to have disagreement on any issue and the lawyer would likely inherently favor one party over the other. There is no way for the lawyer to equally represent both parties to a No-Fault divorce. So if it is a No-Fault divorce you’re seeking and for whatever reason wish to avoid any allegations that will be made public in a chancery court file, my suggestion is to make a list of the things that you can agree on. Bring with you the list of the things that you can agree on along with those other matters that you cannot agree on to your attorney. Meet with your attorney and see if there’s any way to resolve those issues without filing a fault-based complaint. Often times this can be accomplished, sometimes it cannot. Often it is absolutely necessary for you to make some sort of fault allegation that is well founded in the facts such as habitual cruel treatment, adultery, desertion, or any of the other accepted grounds for divorce in the State of Mississippi in order to obtain a final and outright cessation of the marriage. Although we perfectly understand that this isn’t always what people want to hear, it is necessary that all people have an understanding of the general philosophy behind Mississippi Divorce law. In understanding that, you’ll be better prepared to deal with whatever lies ahead.Matthew Poole