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.

No-Fault Law

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.

Contesting Grounds

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.

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Default Provisions

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.

Complicating Factors

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.

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References

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Michigan No-Fault Divorce Law

Michigan is a true no-fault divorce state; you cannot receive a divorce on any other grounds. There aren't any fault options available. This makes filing for divorce relatively simple and contesting the divorce, itself, virtually impossible. However, in some cases, the court can still address a spouse's misconduct.

New York Laws on a Divorce Adultery Countersuit

New York has recognized no-fault grounds for divorce since 2010, but this doesn’t prevent a spouse from filing on fault grounds instead. A spouse can file on grounds that her partner committed adultery, but the state doesn’t make this particularly easy. As a holdover from the days when spouses had to prove misconduct to receive a divorce, New York’s laws require somewhat stringent proof of adultery, whether you allege it in a complaint or in a countersuit.

How Long Can a Divorce Be Postponed in Indiana?

For all practical purposes, Indiana is a no-fault state. Its statutes don't include the typical fault grounds of adultery, abandonment or cruelty. If you file for divorce in this state, your only options are to use the no-fault grounds and tell the court your marriage is irretrievably broken, or your spouse is impotent, insane or convicted of a felony. If you file on grounds of irretrievable breakdown, your spouse can't stop the divorce without your consent. Under some circumstances, however, you or your spouse may be able to postpone the proceedings for a little while.

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