Mississippi Divorce Rules When One Party Refuses the Divorce
By Beverly Bird
Although the divorce laws in most states bear a similarity to each other, Mississippi departs somewhat from the norm. A resistant spouse who wants to fight a divorce has more ability to do so in this state than in others. Qualifications for no-fault grounds are more stringent than in other jurisdictions as well.
Most states allow you to file for divorce on a no-fault ground simply to avoid going through the hassle of proving your spouse guilty of some wrongdoing. In these jurisdictions, using a no-fault ground has no effect on whether you’re contesting the issues of your divorce, such as custody or alimony. This is not the case in Mississippi. You can file on the state’s no-fault ground of irreconcilable differences only if you and your spouse already have a written agreement in place resolving all issues of your marriage and indicating that you both want a divorce.
Read More: How to File a No Fault Divorce Without a Lawyer
If your spouse is refusing to give you a divorce so you can’t file on grounds of irreconcilable differences, you have no choice but to choose a fault ground. Fortunately, Mississippi offers 12 of them. They range from the usual adultery, cruelty and desertion grounds available in most states to issues like an addiction to morphine or impotency. If your spouse doesn’t want the divorce, he can contest your ground to try to stop the proceedings. You have what’s called the burden of proof; you have to convince the court that your allegations are true. Mississippi law takes this burden seriously. Your spouse can answer your complaint for divorce, denying your charges, and force a trial where you would have to submit the proof of your ground to the court in order to receive your divorce.
In most states, if your spouse refuses your divorce by simply not responding to your complaint, you can file for default judgment against him and proceed. Mississippi’s laws do not allow this. Under Section 93-5-7 of Mississippi’s code, if your spouse reacts to service of your complaint by ignoring the whole process, the court will not enter a default judgment against him. Instead, you must go to trial anyway, even without his participation, and prove your grounds to the judge’s satisfaction. If you're successful, the judge will grant your divorce, generally giving you what you asked for in your complaint.
Another quirk in Mississippi’s family court rules is that if you are pregnant at the time you file your divorce complaint, the court has the right to put your divorce on hold until you give birth. Although this provision is to ensure you receive an adequate child support order to cover your unborn baby, it can also delay your efforts to move forward if your spouse is resisting the divorce.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.