Mississippi Family Lawyer Blog
We have all heard the term “consenting adults.” Well, Mississippi law requires such consent before a divorce on the ground of irreconcilable differences (also known as a “no-fault” or “agreed divorce”) will be granted. A divorce will not granted simply because he or she no longer desires to be married to the other person. Without a fault-based ground for divorce, both parties must be in agreement and give consent to an irreconcilable differences (or “no fault”) divorce. Consent is accepted by the court in one of two ways: (1) a written agreement defining all child custody, child support, child visitation, and division of marital assets and marital debts; or (2) both parties must give consent to allow the court to decide these issues for them if they cannot agree. Either way, consent is required by both parties for an irreconcilable divorce to be valid.
If either party refuses to accept the terms demanded by the other party and refuses to allow the court to choose for them, the only other option is to sue for divorce. This involves alleging a fault-based ground on the other party of which this party may admit or challenge these allegations of fault. If both parties can agree to and consent to wanting the divorce, an irreconcilable differences divorce may be your best bet.
Mississippi Code Section 93-5-2 (3) pertains to consent agreements for irreconcilable differences divorces and provides the following:
(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 judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining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…Mississippi Code Section 93-5-2 (3)
Once the final judgment has been entered, the agreement to divorce is valid and standing. The withdrawal of a party’s prior consent to the agreement must occur before the final judgment is entered. It is simply too late to withdraw or expunge the required consent once the final judgment has been entered by the court. As long as the consent has not been revoked as of the day the chancellor considers the issues and signs the judgment, the divorce is valid and final.
In summation, consent (or lack thereof) is a word that plays a role in both validating a marriage, invalidating a marriage, and in validating a divorce. As discussed above, consent of just one party is not enough. Consent is required by both parties for a marriage to be valid. And consent is required by both parties for an ID divorce to be valid. On the same token, lack of consent for either marriage or divorce, makes the marriage or divorce invalid. For example, if it is shown that one party was mentally unable to consent to marriage or divorce, then the marriage agreement or divorce agreement is invalid and unenforceable. If a party does not willingly and knowingly consent to marry, there is no marriage; likewise, if a party does not willingly and knowingly consent to an ID divorce, there is no ID divorce.
Even if you and your spouse feel you both have “consented” to the divorce, it is always a good idea to have an experienced divorce attorney on your side. As often what begins as a “consensual divorce” or an agreed divoce quickly turns into contested divorce or it remains an ID divorce later to find it is not valid because all of the elements required were not met.
For a free consultation, contact M. Devin Whitt, an experienced Mississippi divorce attorney. As an experienced divorce and family law attorney practicing in Jackson, Mississippi, I can offer you the advice you need and help you make sure that the required elements, such as consent, are covered for your divorce to be valid. Contact the Law Office of M. Devin Whitt for a free consultation at 601-607-5055 for a free consultation.