Marital Domestic Separation and Property Settlement Agreement Minor Children no Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all-inclusive
discussion of the law of separation agreements in Mississippi, but does
include basic and other provisions.
General Summary: Separation and Property Settlement Agreements
may be signed by the parties to be effective upon dissolution of their
marriage. The property settlement is incorporated in the divorce
decree, and such property settlement is not subject to modification. It
is treated as a true and genuine contract, and the mere fact that it is
between a divorcing husband and wife, and incorporated in a divorce decree,
does not change its character.
Statutes:
Mississippi Code
Title 93 Domestic Relations
Chapter 005 Divorce and Alimony
Irreconcilable differences:
(1) Divorce from the bonds of matrimony may be granted
on the ground of irreconcilable differences, but only upon the joint complaint
of the husband and wife or a complaint where the defendant has been personally
served with process or where the defendant has entered an appearance by
written waiver of process.
(2) If the parties provide by written agreement for the custody
and maintenance of any children of that marriage and for the settlement
of any property rights between the parties and the court finds that such
provisions are adequate and sufficient, the agreement may be incorporated
in the judgment, and such judgment may be modified as other judgments for
divorce.
(3) If the parties are unable to agree upon adequate and sufficient
provisions for the custody and maintenance of any children of that marriage
or any property rights between them, they may consent to a divorce on the
ground of irreconcilable differences and permit the court to decide the
issues upon which they cannot agree. Such consent must be in writing, signed
by both parties personally, must state that the parties voluntarily consent
to permit the court to decide such issues, which shall be specifically
set forth in such consent, and that the parties understand that the decision
of the court shall be a binding and lawful judg ment. Such consent may
not be withdrawn by a party without leave of the court after the court
has commenced any proceeding, including the hearing of any motion or other
matter pertaining thereto. The failure or refusal of either party to agree
as to adequate and sufficient provisions for the custody and maintenance
of any children of that marriage or any property rights between the parties,
or any portion of such issues, or the failure or refusal of any party to
consent to permit the court to decide such issues, shall not be used as
evidence, or in any manner, against such party. No divorce shall be granted
pursuant to this subsection until all matters involving custody and maintenance
of any child of that marriage and property rights between the parties raised
by the pleadings have been either adjudicated by the court or agreed upon
by the parties and found to be adequate and sufficient by the court and
included in the judgment of divorce. Appeals from any orders and judgments
rendered pursuant to this subsection may be had as in other cases in chancery
court only insofar as such orders and judgments relate to issues that the
parties consented to have decided by the court.
(4) Complaints for divorce on the ground of irreconcilable differences
must have been on file for sixty (60) days before being heard. Except as
otherwise provided in subsection (3) of this section, a joint complaint
of husband and wife or a complaint where the defendant has been personally
served with process or where the defendant has entered an appearance by
written waiver of process, for divorce solely on the ground of irreconcilable
differences, shall be taken as proved and a final judgment entered thereon,
as in other cases and without proof or testimony in termtime or vacation,
the provisions of Section 93-5-17 to the contrary notwithstanding.
(5) Except as otherwise provided in subsection (3) of this section,
no divorce shall be granted on the ground of irreconcilable differences
where there has been a contest or denial; provided, however, that a divorce
may be granted on the grounds of irreconcilable differences where there
has been a contest or denial, if the contest or denial has been withdrawn
or cancelled by the party filing same by leave and order of the court.
(6) Irreconcilable differences may be asserted as a sole ground
for divorce or as an alternate ground for divorce with any other cause
for divorce set out in Section 93-5-1. § 93-5-2.
Children; spousal maintenance or alimony:
When a divorce shall be decreed from the bonds of matrimony,
the court may, in its iscretion, having regard to the circumstances of
the parties and the nature of the case, as may seem equitable and just,
make all orders touching the care, custody and maintenance of the children
of the marriage, and also touching the maintenance and alimony of the wife
or the husband, or any allowance to be made to her or him, and shall, if
need be, require bond, sureties or other guarantee for the payment of the
sum so allowed. Orders touching on the custody of the children of the marriage
may be made in accordance with the provisions of Section 93-5-24. The court
may afterwards, on petition, change the decree, and make from time to time
such new decrees as the case may require. However, where proof shows that
both parents have separate incomes or estates, the court may require that
each parent contribute to the support and maintenance of the children of
the marriage in proportion to the relative financial ability of each. In
the event a legally responsible parent has health insurance available to
him or her through an employer or organization that may extend benefits
to the dependents of such parent, any order of support issued against such
parent may require him or her to exercise the option of additional coverage
in favor of such children as he or she is legally responsible to support.
Whenever the court has ordered a party to make periodic payments
for the maintenance or support of a child, but no bond, sureties or other
guarantee has been required to secure such payments, and whenever such
payments as have become due remain unpaid for a period of at least thirty
(30) days, the court may, upon petition of the person to whom such payments
are owing, or such person's legal representative, enter an order requiring
that bond, sureties or other security be given by the person obligated
to make such payments, the amount and sufficiency of which shall be approved
by the court. The obligor shall, as in other civil actions, be served with
process and shall be entitled to a hearing in such case.
Whenever in any proceeding in the chancery court concerning the
custody of a child a party alleges that the child whose custody is at issue
has been the victim of sexual or physical abuse by the other party, the
court may, on its own motion, grant a continuance in the custody proceeding
only until such allegation has been investigated by the Department of Human
Services. At the time of ordering such continuance the court may direct
the party, and his attorney, making such allegation of child abuse to report
in writing and provide all evidence touching on the allegation of abuse
to the Department of Human Services. The Department of Human Services shall
investigate such allegation and take such action as it deems appropriate
and as provided in such cases under the Youth Court Law (being Chapter
21 of Title 43, Mississippi Code of 1972) or under the laws establishing
If after investigation by the Department of Human Services or final
disposition by the youth court or family court allegations of child abuse
are found to be without foundation, the chancery court shall order the
alleging party to pay all court costs and reasonable attorney's fees incurred
by the defending party in responding to such allegation.
The court may investigate, hear and make a determination in a custody
action when a charge of abuse and/or neglect arises in the course of a
custody action as provided in Section 43-21-151, and in such cases the
court shall appoint a guardian ad litem for the child as provided under
Section 43-21-121, who shall be an attorney. Unless the chancery court's
jurisdiction has been terminated, all disposition orders in such cases
for placement with the Department of Human Services shall be reviewed by
the court or designated authority at least annually to determine if continued
placement with the department is in the best interest of the child or public.
The duty of support of a child terminates upon the emancipation
of the child. The court may determine that emancipation has occurred and
no other support obligation
exists when the child:
(a) Attains the age of twenty-one (21) years, or
(b) Marries, or
(c) Discontinues full-time enrollment in school and obtains full-time
employment prior to attaining the age of twenty-one (21) years, or
(d) Voluntarily moves from the home of the custodial parent or
guardian and establishes independent living arrangements and obtains full-time
employment prior to attaining the age of twenty-one (21) years. §
93-5-23.
Case Law:
In Mississippi, the parties may, upon dissolution of their marriage,
have a property settlement incorporated in the divorce decree, and such
property settlement is not subject to modification. A true and genuine
property settlement agreement is no different from any other contract,
and the mere fact that it is between a divorcing husband and wife, and
incorporated in a divorce decree, does not change its character. East
v. East, 493 So.2d 927, 931-32 (Miss. 1986).
Miss. Code Ann. § 93-5-2 provides that before granting a divorce
the parties must by written agreement make adequate provision for child
custody and maintenance, and also settle all property rights between them.
The statute further provides that the decree may be modified as other decrees
for divorce, which could only refer to child custody and maintenance, because
property right settlements are fixed and final.
East v. East, 493
So.2d 927 (Miss. 1986); In re Estate of Kennington, 204 So.2d 444
(Miss. 1967). A divorce judgment relating to child support is not a settlement
of property rights, which is immutable, fixed and not subject to change,
but a decretal provision based upon the reasonable needs of a child coupled
with the ability of a parent to pay, Carpenter v. Carpenter, 519
So.2d 891, 894 (Miss. 1988), and which can vary, dependent upon future
developments.
