Overview: The Process of Divorce in Mississippi
What happens between the time you first meet with your lawyer until your divorce is finally completed? Why do some divorces take years, while others are resolved in a matter of weeks? How hard is it to get a divorce, anyway?
In our other Ultimate Guides, we have talked about what the law is and how judges apply it. In this Guide, we want to talk about process — that is, the mechanics of how cases are resolved, from start to finish.
To make this Guide easier to navigate, we’ve broken out chapters that deserve their own, smaller Guides. We’ll talk about each of these topics below in a cursory way, so that you can see how all of the gears in the machine work together. But if you want to go into the fine details, you can explore these separate guides:
Road Map to This Guide
We’re going to work through the things that often happen in divorce cases, but just because you see things discussed here doesn’t mean that they’re likely to happen in your divorce case. This Ultimate Guide to the Process of Divorce assumes a worst case scenario. Chances are that there’s no reason for you to assume that your divorce case will be a worst case scenario. Something like 80 percent of people getting a divorce do so by agreement. That means they get it done in less than 100 days, and the legal fees are minimal — certainly in comparison to high-conflict divorces.
But so that you can see the entire road from beginning to end, we’re going to assume that your case never gets settled, that it goes all the way to a full-blown trial at the courthouse, and that there will be an appeal after that.
Just remember that, even though we won’t talk about them here, the road that we’re describing has lots of off-ramps — you can exit the litigation at any time by reaching an agreement with your ex. The only reason that you’ll stay on this road of litigation is because you have not yet been able to reach that agreement. Maybe you never will. But if you do, the lawyers will write up an agreed judgment (using whatever terms you have agreed to) for everyone to sign, and you won’t have to travel any further on the road of litigation. But until you’ve reached that agreement, here’s what you can expect.
Hiring Your Lawyer Before the Lawsuit Is Filed
It’s not uncommon for spouses to discuss the divorce before either of them files the divorce lawsuit. If you and your spouse can sit down at the kitchen table to figure out who gets what and how to handle custody and visitation, then it’s easy to write up the bullet points and take them to a lawyer to draw up the papers to make your informal agreement “legal.”
For that matter, both of you could hire lawyers to see if, with their help, the two of you can reach an agreement. Your lawyer has more experience negotiating these kinds of agreements than you do, and he or she also might have some ideas about how to work around a perceived impasse. Also, your lawyer can advise you on what’s a good deal and what’s a bad deal, so that you’ll know that you’re not giving up more than you should.
Even if there won’t be an agreement, it’s still a good idea to at least talk to a lawyer in person as soon as you can — well before your divorce is filed. You need to know what to expect and what your game plan will be to get you to the result you’re trying to reach.
Part of this conversation is about shoring up the weaknesses in your case or building upon its strengths, while you still have time to do something about it. Some standard questions that are addressed include, Should I get a new job/quit my current job? When is it ok for me to start dating? Should I pay off credit cards and other debts? Or should I take out more debt? Should I be spending more or less than I usually do? What can I be doing now to improve my chances of getting custody? If I want to relocate to another state, should I do it now or wait? I’m thinking about starting a business or closing a business — what should I do? There’s no universal right answer to any of these questions; it all depends on your particular situation. Spending an hour or so with a lawyer well before a lawsuit is filed can go a long way toward starting your case on the right foot.
Filing the Divorce Lawsuit
The lawsuit that begins the divorce case is known as the complaint or the petition. At the same time that the complaint is filed, your lawyer will file a statistical document, listing everyone’s name, address, and the names of your children with your spouse. The idea of the separate document is to prevent the children’s information from becoming part of the public record, as it would be if it were contained in the complaint.
The idea behind the complaint is that you are notifying both the court and the opposing party of what you are asking the court to do for you and, in general terms, why you are entitled to it. There’s no need to go into great detail; the important thing is that you give notice of your intentions. For example, if you want custody of the children, it’s enough to say that you want custody. You don’t have to go into all the reasons why you’re the better parent. Later on, your opponent can ask you to list all the reasons why you should have custody. But the complaint is usually not the place where you get into all of those details.
It is important, though, to be clear about what you are asking the court to do for you. If you do not ask for something in the complaint, there’s a good chance that the court will not award it to you because you didn’t ask. There are a few exceptions, but if you’re going to ask for something at trial, be sure that you asked for it in your complaint.
The two foregoing paragraphs might seem contradictory — do I say that I want my grandfather’s gold watch or not? Your lawyer will guide you through the level of detail that you should provide.
The complaint will list one or more grounds for divorce. You can read more about the grounds for divorce in our Ultimate Guide to Divorce. Mississippi is unlike most states, in that to obtain a divorce, you are still required to either prove that your spouse has committed substantial marital misconduct (i.e., fault grounds) or that you and your spouse have agreed to a no-fault divorce (i.e., irreconcilable differences).
Just because you include a fault ground in your complaint for divorce does not mean that you cannot later settle the case as an agreed, no-fault divorce. It just means that, for now, you intend to get a divorce whether your spouse agrees or not.
This is an unfortunate requirement in the law. Nobody likes being formally accused in a public document of being an adulterer, a drunkard, an addict, an abuser, etc. We sometimes see spouses who had an informal understanding that they were going to “play nice” in the divorce suddenly go to Defcom 5 when they see what they’ve been accused of. It’s an understandable response. But as we’ve noted, unless you and your spouse have filed a formal agreement to a no-fault divorce, you have no guarantee that you will get a divorce unless you list a fault ground in your divorce petition and then prove it at trial.
Temporary Hearing, Service of Process
When your lawyer files your divorce complaint, he will probably ask the court to schedule a temporary hearing. We’ll talk more about temporary hearings below, but we’ll note here that the point of a temporary hearing is to put in place some court orders for maintaining a status quo while the case is being litigated. The temporary hearing is where the court decides who will live in the marital residence, who will pay which bills, who will have custody, what the visitation will be, how much child support and alimony (if any) will be paid, and so forth while the case is pending.
There’s something akin to a waiting list to get in front of the chancellor for a temporary hearing; after all, you’re not the only person in your county who’s getting a divorce. So the sooner your case “gets in line” for the hearing, the sooner it will be held.
Your spouse will be served with a copy of the divorce complaint and the summonses. These are written notifications to your spouse that (a) you’ve filed a divorce complaint, and (b) the court is going to conduct a temporary hearing at the courthouse on the date listed on the summons.
When we say that “your spouse will be served,” we mean that someone will physically hand the documents to your spouse. This is known as serving process. Usually, the person serving process is either the county constable, whose job it is to serve legal papers, or else a private process server. This is not a confrontational event. Constables and process servers are not trying to embarrass anyone, and they won’t make a scene. It’s not unusual for a constable to call the person that they’re serving and ask if the person wants to come by the constable’s office to pick up the summonses or else offer to meet them somewhere (like a gas station) to serve process.
Sometimes people avoid service of process, which is never a good idea. And sometimes a spouse has been gone for so long that nobody knows where they are. If for whatever reason your spouse can’t be served with process in person, there are other ways to serve process. Your lawyer will advise you on how that works.
Incidentally, we’re writing this Guide as if you are the party who initiated the lawsuit. If you’re the spouse who got served with process and still haven’t hired a lawyer, this is the point by which you should have (a) asked the people that you trust to refer you to a good lawyer, (b) interviewed lawyers, and (c) hired a lawyer. Do this ASAP because you are in one of the more challenging parts of the divorce process, and you need representation to help you navigate it.
We’ve mentioned that in most contested divorce cases, there will be a temporary hearing and that its purpose is for the court to hear evidence and enter a temporary order to establish what will be the status quo while the case is pending. The temporary order will set forth who gets to live in the marital residence, what the custody and visitation arrangements will be, who will pay the bills and support to the other spouse, and so forth.
The problem is that in most cases, until the temporary order is entered, neither party has a court-ordered right to custody, visitation, exclusive use of the marital residence, vehicles, financial accounts, and so forth. This is a tricky area to navigate. On the one hand, there’s no court order that says that you have to let your husband see the children, or that you can’t take all of the money from the joint account, or sell your boat to your cousin for $20, or any of the other goings-on that spouses sometimes engage in on the way to the courthouse.
On the other hand, you’re about to be in front of a judge who doesn’t know anything about you or your spouse. If you’ve been throwing sharp elbows in the weeks leading up to the hearing, the judge might decide that you’re the bad guy. First impressions are hard to overcome, especially in chancery court. If the judge’s initial impression of you is that you’re the bad guy and your spouse is the good guy, this could haunt you all the way through the rest of the case.
Combine the foregoing with the overwhelming emotions that accompany a contested divorce case, and you have a recipe for far-reaching decisions that should have been avoided. This is why it is critical that you hire a lawyer and that you don’t do anything significant without consulting with your lawyer. Many divorce litigants aren’t skilled at evaluating how their actions are going to look to a chancellor. You need to be guided by someone who knows how actions taken outside of the courtroom are going to play inside of the courtroom.
In the absence of court orders, it sometimes happens that the lawyers are able to negotiate a temporary arrangement that will put rules in place until the court can conduct the temporary hearing. For that matter, sometimes a temporary order can be negotiated so that no hearing is necessary.
You will want to explore with your lawyer the possibility of negotiating such an agreement. The more structure is in place, the more amicable the divorce is likely to be. Obviously, some litigants have no interest in amicability. If you have the misfortune of being married to one of these, you have little choice but to go to court for a temporary hearing.
The Temporary Hearing
In an ideal world, people would be ready to try their case at the courthouse within a few weeks after the lawsuit is filed, and the chancellor would be prepared to enter a final judgment at the conclusion of the trial. That’s almost never the case. People need time to assemble their case by collecting the documents that they will be using at trial, assembling the witnesses who will testify, learning about the other side’s case, and more — as we will discuss in this Guide.
When the judgment is finally entered, it will include provisions for custody, visitation, financial support, payment of debts, ownership of the marital residence, division of assets and so forth — all the things necessary for the parties to go on their separate ways.
The problem is, those provisions (for custody, visitation, financial support, etc.) won’t be made until the final judgment is entered. Worse, when a divorce is filed, there’s no way to know how long it will take before the case is resolved. That means that the husband and wife can be in litigation for months, if not years, without any court orders in place for custody, visitation, financial support, etc.
That is often an intolerable situation, so the law provides that very early in the life of the case, while the parties and their lawyers are just getting started in preparing the case for trial, the chancellor can make orders on these issues (e.g., temporary custody while the case is pending, temporary visitation while the case is pending, who will pay the bills while the case is pending, etc.). Because these orders usually remain in effect only so long as the case is pending, they are called temporary orders (as opposed to the permanent orders in a final judgment).
As we’ve noted, a hearing date will be scheduled for the court to make a decision as to what the temporary order should say. The process leading up to and on the day of the temporary hearing is one of the more complicated events in divorce litigation. Usually, you and your lawyer are working on several projects, all at the same time:
Preparing a Rule 8.05 financial declaration, which must be submitted at the temporary hearing
Deciding what terms to ask the chancellor to put into the temporary order
Preparing your testimony for the temporary hearing
Deciding which witnesses to call at the temporary hearing and sending subpoenas to compel their appearance at court
Collecting physical evidence to use at the temporary hearings, such as bank account statements, tax returns, photographs, videos and recordings, etc., anything that you intend to offer into evidence
Requesting and/or responding to written discovery (discussed below)
Negotiating an agreed temporary order with the other side
Getting ready for a temporary hearing is a big job. There are two practical complications in this process. First, your attorney is probably new to the case, so there is a fairly steep learning curve. Your attorney has only a few weeks (if that) to get up to speed before the temporary hearing.
Second, due to the press of other clients and other commitments, it’s not unusual for the other side’s lawyer to be unavailable/unable to enter into meaningful discussions about the case until a day or two before the temporary hearing. This can be frustrating when you and your attorney have prepared for the temporary hearing, while the other side hasn’t gotten around to it. There’s not much that can be done about this.
What happens if the parties don’t agree on the terms of the temporary order? Before he can make an informed decision about the provisions that should be included in the temporary order, the chancellor needs to know what’s going on in the case. There are a number of different approaches that chancellors take to gather this information. For example, the chancellor could meet with the attorneys, with each arguing his position as to what the temporary order should say.
The chancellor can conduct a hearing (with or without meeting with the attorneys ahead of time). This is a formal hearing, in which you and your spouse would be sworn in as witnesses, giving testimony under oath and subject to cross-examination. Some chancellors will give the parties as much time as they like to present their case; others impose time limits, such as 30–60 minutes to each party. Particularly if your chancellor imposes time limits, it is critical that you and your attorney prepare to use your time efficiently so that you do not waste time on trivialities. You will not have enough time to address every issue that you would like to, and you must prepare accordingly.
We’ve said that the chancellor would be the person to rule on your request for a temporary order. That’s how it works in most counties. But particularly in more populous counties, it’s not unusual for the chancellor to have appointed a special master to hear your case. The special master is an attorney who is experienced in family law, whom the court has appointed to hear temporary hearings and perhaps other matters, too. Chancellors being as busy as they are, the practical upshot of a special master appointment is that your temporary hearing is conducted within a few weeks after the case is filed, rather than a few months.
Under some circumstances you have the ability to object to the special master’s appointment in your case and insist that the chancellor be the person to decide the matter. Your attorney can help you weigh the pros and cons of this decision. One likely consequence is that it will take longer for the temporary hearing to be conducted, since the point of appointing a special master was to expedite the resolution of the temporary issues.
The temporary order governs the case while it’s pending, and this could be for years. So it’s a big deal. Properly preparing for the temporary hearing goes a long way toward obtaining a favorable temporary order.
