Q&A: FAULT BASED (CONTESTED) DIVORCE

A contested divorce springs from disagreements between the spouses as to the divorce. A contested divorce can include one party filing a fault-based divorce, a complaint for divorce seeking for a court to grant a divorce based upon a fault ground, or where the parties agree to an irreconcilable divorce, but are unable to agree as to all of the other terms for the divorce, such as property division, child custody, etc. 

The party must pay a filing fee to the court for the filing of a contested divorce, and the filing fee varies from county-to-county. In Harrison County, Mississippi the filing fee for a contested divorce is $163.00. This fee is payable directly to the clerk of the court, and is apart from the fee that the attorney charges. In a contested case your spouse must be served with the complaint for divorce, and the cost for a process server which will serve your spouse generally begins at $45.00. 

Most attorneys charge an hourly rate in contested cases. This means that the client pays per the hour for the services provided in the case.  No one can provide you with the exact cost of a contested case.  If the case settles the costs will be less than a case that proceeds to trial.  

Most divorces are filed base upon irreconcilable differences. However, if the spouses do not agree upon the divorce then it is necessary for a fault ground to be proven for the divorce to be granted. In a fault based, or contested, divorce one party files suit against the other party to end the marriage. The suing party must prove one of the fault grounds for the court to grant the divorce. Mississippi has twelve (12) fault grounds by which the filing party must allege and prove to obtain a divorce. 

Once a contested divorce is filed and the other party is properly served with process, or served with the complaint for divorce or through service by publication, the other spouse has no choice but to undertake the divorce process once it is filed. However, the filing spouse is required to prove his/her case for a divorce to be granted. 

The following are the fault grounds:  

1.  Natural and incurable impotence;
2. Adultery;
3. A stay in a penitentiary for any duration of time;
4. Willful, continued, and obstinate desertion for a year;
5. Habitual drunkenness;
6. Habitual and excessive use of opium, morphine, or other like drugs;
7. Continual cruel and inhuman treatment, including spousal domestic abuse;
8. Hidden mental illnesses or intellectual disabilities at the time of marriage;
9. Bigamy;
10. Husband is unaware of the wife being pregnant by another person at the time of the marriage;
11. Degree of kindred that is prohibited by law; and 
12. Incurable mental illness.

The contested divorce process is anything but speedy. Each court has a high number of cases filed, and the process can take months to years depending upon the complexity of the case. If the speed and cost of obtaining a divorce are important factors, depending upon the unique circumstances of your case, an uncontested case may be better for you. 

A temporary hearing is often requested in contested cases. Generally, the temporary hearing is the first formal event in a contested divorce after the complaint for divorce is filed with the court and served on the other spouse. The temporary hearing is set for a specific date and time for the spouse to seek a temporary court order which dictates temporary custody and support for minor children, temporary access to finances, temporary access to support, etc. The availability for and format of a temporary hearing varies from jurisdiction-to-jurisdiction and from judge-to-judge.