Irreconcilable Differences Divorce

An Irreconcilable Differences divorce is one of two ways to get a divorce in the State of Mississippi, the other being a fault-based divorce. Mississippi's Irreconcilable Differences statute specifically provides that both parties must agree to a divorce on this basis and that no divorce may be entered  until all custody, child support and property rights between the parties are resolved and found to be adequate and sufficient by the court.

Therefore, an initial requirement for an Irreconcilable Differences divorce in Mississippi is that both husband and wife must agree to a divorce based on Irreconcilable Differences.  Without such agreement, no such divorce will be granted by the court. That is, a divorce in Mississippi is not available based on one party's claim that the marriage is simply broken. If the parties can agree to a divorce on the basis of Irreconcilable Differences, they have two options on how to proceed.
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First, the parties may not only agree to the divorce, but also agree to settle any and all issues relating to property distribution, child custody, child support and visitation. The advantage of this is that it cuts many of the costs usually invovled in a divorce because litigation time is eliminated and court appearances are reduced for the attorneys. Short term marriages without children and property routinely benefit from this type of divorce as there are not many to dispute. Longer marriages with children and property may also benefit from this method if the spouses can work together to reach an agreement without the need for court intervention. 

The second approach involves the parties being able to agree to the divorce, but being unable to agree on some issues, like custody, property rights, or visitation.  The parties can enter a consent decree where they agree in writing to submit any remaining issues relating to property and/or child custody/support terms to the court for decision. Under this method, the court will have a hearing where the parties will present evidence that is relevant to the issues to be decided. 

Under Mississippi statute, the waiting period for an Irreconcilable Differences divorce is sixty (60) days from the time the joint complaint is filed. Furthermore, at least one of the parties must have resided in the State of Mississippi for at least six (6) months prior to the filing of the divorce.
If you need representation in a divorce or other family law matter, please feel free to contact our firm at (601) 706-9757.

Property Division and Equitable Distribution in Mississippi
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Mississippi is an equitable distribution state.  Under this manner of distribution, it does not matter which spouse has title to a particular asset.  The court will divide marital property between the two parties upon divorce based on the equities of their particular situation.  It is important to remember that equitable distribution does not necessarily mean equal distribution, so property will not always be divided straight down the middle.  Instead, Mississippi courts follow a series of steps when making equitable distributions of marital property.  

These steps include:

  1. classifying assets as marital or separate;
  2. valuing assets (occasionally using experts);
  3. dividing marital property equally based on the factors outlined in Ferguson; and,
  4. awarding alimony if needed after the division of assets.
Classifying Assets as Marital or Non-Marital

In general terms, non-marital property includes assets brought into a marriage and any value accumulated by those assets, or an asset that was received as a gift or through inheritance during the marriage.  Marital property includes assets acquired or accumulated by marital efforts during the course of the marriage. It is important to remember that just because property originally may have been categorized as non-marital property, it can lose this status if combined or commingled with marital property to the point that you can no longer identify its non-marital characteristics. Separate property may also become marital if it is used by the family and intended to be family property.  For instance, if you own a house and get married, and you and your spouse use the house as your marital home, your house can lose its status as non-marital property through a concept called the family use doctrine. An asset can have both marital and non-marital components, and there is a presumption in favor of marital property in Mississippi.

Valuing Assets

This step could involve nothing more than looking at bank statements or other financial information; however, real estate appraisers, accountants or other professionals who specialize in valuation may be required to place a proper value on certain assets.  Sometimes the parties may estimate the value of an asset to save litigation expenses.  Usually, fair market value is used to measure value of an asset. 

Dividing Marital Property Equally Based on the Ferguson Factors

After all of the assets have been identified and valued, a division can be made either by agreement or court order, taking the "Ferguson Factors into account. It is important to remember that equitable distribution does not always mean equal distribution, so do not assume that everything will be divided straight down the middle. The Ferguson Factors include:

  1. spousal use or disposition of assets and distribution by agreement;
  2. substantial contribution to property accumulation;
  3. the needs for each spouse;
  4. the value of each spouse's separate estates;
  5. the tax and legal consequences to third parties;
  6. the extent to which property division can eliminate the need for alimony;
  7. the market or emotional value of the assets;
  8. Any other factor that should be considered in equity.

The polestar consideration in determining how to distribute property is the needs for each spouse.  In Mississippi, there is the added consideration as to whether marital fault exists, but divisions shouldn't be made to punish a party for marital misconduct. It is important to remember that if you do not have a fault based ground for divorce and you do not have an agreement, you will not get a divorce in Mississippi. 

Awarding Alimony

After identifying, valuing and distributing marital assets and debts, the last step in equitable distribution is to award alimony, if the award is made necessary due to the inadequacy of the property distribution. This means that if one party was financially dependent on the other party during marriage, and it is likely that they will still need financial support after divorce, the court may award alimony to that party for living expenses.  If the property division is large, an alimony award is much less likely. 

Call Us Today to Schedule a Consultation

We believe in aggressive, diligent and compassionate representation of our clients involved in family law proceedings. Should you need representation or have questions relating to a divorce property division or other family law matter in Mississippi, please  contact our firm at (601) 706-9757 to schedule a consultation with an experienced Brandon, Mississippi family law attorney.
Phone:  (601) 706-9757
Fax: (601) 825-3677

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Brandon, MS 39042
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