Family Law

Mississippi Supreme Court sets the record straight

By Robert M. Kisselburgh, Esq.

Mississippi Supreme Court resolves conflicting opinions in irreconcilable divorces

Last week, the Mississippi Supreme Court settled a dispute to a technical question in irreconcilable divorce cases. Many times, one party will file for divorce alleging a fault-based ground but also alleging irreconcilable differences as an alternative ground. As the case proceeds, the parties agree to divorce on irreconcilable differences. Before the court can approve the divorce on irreconcilable differences, the party that alleged fault-based grounds must file a motion to withdraw those grounds and the court must sign an order withdrawing those grounds. That is what Mississippi Code Section 93-5-2(5) requires. If the Court approves the divorce without the fault-based grounds being withdrawn, then the judgment is void. There is one exception to this rule.

Under Mississippi Code Section 93-5-2(3), the parties may agree to a divorce based upon irreconcilable differences, but submit for the court?s determination other matters such as child custody, support, or property division. In those cases, the parties must file a written consent, signed by both parties, stating that the parties agree to divorce based on irreconcilable differences and voluntarily consent to permit the court to decide the remaining issues. If one of the parties previously alleged a fault-based ground before the parties agreed to irreconcilable differences, that party is not required to file a motion to withdraw the fault-based grounds. In O'Neal v. O'Neal, decided last week, that is what occurred.

Full post as published by Mississippi Family Law Blog on September 21, 2009 (boomark / email).