Understanding the Divorce Process

Divorce is a scary word. What other word can you think of that means both "liberation" and "loss". Many emotions surface during divorce, sometimes daily. This is a stressful period when uncertainty is the rule and not the exception. How will you divide your possessions? Who will get custody of the children? How will you separate one household into two households when you and your spouse were struggling to make ends meet together? What are people saying behind your back? What is your soon-to-be-ex-spouse telling others about you? All of this creates stress ... and anger ... and emotions that you can't seem to control — and you haven't even begun the divorce process.

What is the divorce process? How long will the divorce last? How much will the divorce cost? What interaction will I have with my spouse during the divorce? What embarrassing things will I have to tell my attorney? Will this be told in court? What will happen at court? Will my spouse's attorney yell at me in court?

If you can identify with any of these thoughts, you're human. Hopefully, this chapter will answer some of the main questions that you have about the divorce process.

1.1 What is my first step?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation.

Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce, your spouse might be.

Ask what documents you should bring to your initial consultation. Make a list of your questions to bring to your first meeting. Also, start making plans for how you will pay your attorney to begin work on your case.

1.2 Must I have an attorney to get a divorce in Mississippi?

No. However, if your case involves children, alimony, significant property, or debts, you should avoid proceeding on your own.

A person who represents himself in a legal matter is referred to as being pro se (pronounced pro-say), meaning "on one's own." If you are considering proceeding without an attorney, at a minimum you should have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations of which you are unaware. Meeting with a lawyer can help you decide whether to proceed on your own.

1.3 Can one lawyer represent both of us in our divorce if we agree on everything?

No. In Mississippi, one attorney cannot represent both spouses in a divorce. This is a conflict of interest. An attorney can only represent one spouse in a divorce. Therefore, the unrepresented spouse must either hire his own attorney or go unrepresented in the divorce. If the unrepresented spouse remains unrepresented, he will likely be required to sign a document that has language acknowledging that he is unrepresented and has received no legal advice from his spouse's attorney except to obtain independent legal representation of his own.

1.4 My spouse and I both want our divorce to be amicable. How can we keep it that way?

You and your spouse are to be commended for your willingness to cooperate while focusing on moving through the divorce process. This willingness to work together not only will save time and money and is likely to result in an outcome that you are both satisfied with, but it will also preserve a relationship that will be amicable after the divorce is finalized — a goal that should always be strived for when there are children to be raised after the divorce.

Find a lawyer who understands your goal to reach a settlement and encourage your spouse to do the same. Cooperate with the prompt exchange of information. Then ask your attorney about the options of mediation and negotiation for reaching an agreement. Even if you are not able to settle all of the issues in your divorce, these actions can increase the likelihood of agreement on many of the terms of your divorce decree.

1.5 If we both want a divorce, does it matter who files first?

It depends. In the eyes of the court, the plaintiff (the party who files the complaint initiating the legal process of the divorce) and the defendant (the other spouse) are not seen differently by virtue of which party filed first.

Your attorney may advise you to file first or to wait until your spouse files, depending upon the overall strategy for your case and your circumstances. For example, if there is a concern that your spouse will begin transferring assets upon learning about your plans for divorce, your attorney might advise you to seek a temporary restraining order to protect against such an action, without giving prior notice to your spouse. However, if you are separated from your spouse but have an acceptable temporary arrangement, your attorney may counsel you to wait for your spouse to file.

Allow your attorney to assist you in making the decision about whether and when to initiate the legal process by filing a complaint for divorce.

1.6 Do I have to get divorced in the same state I married in?

No. Regardless of where you were married, you may seek a divorce in Mississippi if you meet the jurisdictional requirement of residency.

1.7 How long do I have to have lived in Mississippi to get a divorce in the state?

Either you or your spouse must have been a resident of Mississippi for at least six months to meet the residency requirement for a divorce in Mississippi.

If neither party meets the residency requirement, other legal options are available for your protection. If you do not meet the six-month residency requirement, talk to your attorney about options such as a petition for a custody and support order, or a protection order.

1.8 Is Mississippi a no-fault state or do I need grounds for a divorce?

Mississippi is both a "fault" ground state and a "no-fault" state. This means that you can get a divorce from your spouse without their consent if you can prove one of the twelve "fault" grounds against them. If you cannot prove that you are entitled to a divorce on a fault ground, then the only way to get a divorce in Mississippi is with the consent of your spouse on the "no-fault" ground of irreconcilable differences.

As referred to in this book, a "fault" ground is a basis for divorce that you are relying upon in...