Essential Jurisdictional Facts for Divorce

September 9, 2015 § 7 Comments

There are four fundamental facts you need to know about divorce in Mississippi:

  1. Venue is jurisdictional.
  2. Residence is jurisdictional.
  3. There must have been a marriage for there to be a divorce.
  4. Pleadings are not evidence.

Knowing those four things, then, you need to make sure that you put proof in the record, most usually in the form of testimony, that establishes venue and residence — ergo jurisdiction  — and that there was a marriage.

Here are the jurisdictional facts that need to be in the record for the court to exercise jurisdiction over a divorce:

  • That there was a valid marriage. When and where were the parties married?
  • When was the separation? Separation is not essential for the granting of a divorce, per MCA 93-5-4, but it helps the judge understand the context of the divorce. Many chancellors will want you to establish that, despite the non-separation, they have not had consensual sexual intercourse.
  • Where is venue? For a fault-based divorce, the case must be filed in: (1) the county where the defendant resides; or (2) the county where the plaintiff resides if the parties lived in that county up to the time of the separation and the plaintiff has continued to live there; or (3) the county where the plaintiff resides if the defendant is a non-resident or not to be found in the state. If the ground for divorce is solely irreconcilable differences, the complaint may be filed in the county of either party. MCA 93-5-11. If the action is not filed in the proper county, the court has no jurisdiction, and the case must be transferred to the proper county, per MCA 93-5-11 and MRCP 82(d).
  • Is there the requisite residential period? One of the parties must have been a bona fide resident of the State of Mississippi “within this state” for six months “next preceding” the commencement of the case. That means that there must be six uninterrupted months of actual residence inside the state. It is not enough to move here four months before filing and claim that you actually changed your residence to Mississippi two months before moving here, or to stitch together several periods of residency to make six months. The six-month period does not apply to U.S. military actually stationed in Mississippi, provided that the member resided with the spouse in Mississippi, and the separation occurred in Mississippi. Residency must not have been acquired to secure a divorce. MCA 93-5-5.

Don’t forget the UCCJEA allegations if custody is an issue.

Just because you plead all of the jurisdictional requirements, that does not prove anything because pleadings are not evidence, and the only way to prove something is to get evidence into the record — meaning the trial transcript.

I find that even experienced lawyers fail to get this vital proof into the record in some cases. It happens primarily in cases where the plaintiff’s attorney calls the other party adversely as the first witness. Those jurisdictional fact questions somehow never get asked. Maybe the attorney is afraid that the adverse party will deny residency or something similar. Maybe the attorney is more preoccupied with confronting the cheater with videos, or making him admit he squandered the family fortune gambling. Maybe it’s simple oversight. Whatever, it should not be left up to the judge to inquire about these jurisdictional nuances.

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§ 7 Responses to Essential Jurisdictional Facts for Divorce

  • Judge Doleac says:

    Chancellor Primeaux – always good to get

    Back to the basics…..this post is right on

    Target…..As former Senior Chancellor

    Sebe Dale, Jr., would opine…never

    Presume anything at trial….and that

    Goes to all evidence absent agreement

    Of counsel opposite or stipulated facts

    Put in the record.

    As always, thanks for your practice points

    For the bar and the bench….….

    R Doleac

    Chancellor

  • Reid says:

    Quick question, Judge: did you mean to say that “Residency must not have been acquired to secure a divorce. MCA 93-5-5.” That sounds…inconsistent. Makes me think there’s a typo.

    • Larry says:

      I could have phrased that more precisely. The statute means that you can not move to Mississippi and acquire residence for the purpose of obtaining a divorce in this state (as if …). It reads, “In any case where the proof shows that a residence was acquired in this state with the purpose of securing a divorce, the court shall not take jurisdiction thereof, but [shall] dismiss the bill [i.e., complaint] at the cost of the complainant.”

  • Lou Walker says:

    Would it be your opinion that if a court grants Irreconcilable Difference Divorce without a hearing, granted on the pleadings, that the divorce would be invalid because no evidence was presented? If the period for appeal passes without appeal would the couple then be legally divorced despite the lack of evidence in the record?

    • Larry says:

      The court must make a finding that there is jurisdiction. Without evidence in the record, the judge should not make such a finding. I think a good argument could be made that a divorce judgment without that proof in the record is void for lack of jurisdiction.

  • Chris Tabb says:

    I’ve found lawyers forget to prove jurisdiction in temporary hearings and then get their clients no relief. However sometimes the Judges will allow them to reopen to get in the evidence.

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