Mississippi Supreme Court sets the record straight
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 If the Court approves the divorce without the fault-based grounds being withdrawn, then the judgment is void.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.
Gene O’Neal initially filed for divorce asserting a fault-based ground with an alternative ground of irreconcilable differences. His wife answered the complaint and countered with her own fault-based grounds for divorce as well as an alternative ground of irreconcilable differences. Prior to trial, the parties filed a Consent Agreement to a divorce on the ground of irreconcilable differences. Neither party filed a motion to withdraw the previously alleged fault-based grounds. The Chancellor decided the other issues at trial and entered a judgment of divorce. Both parties filed post-trial motions, but the Court never ruled on them. More than a year later, the wife filed a petition to set aside the divorce arguing that the judgment of divorce was void as neither party withdrew their fault-based grounds for divorce as required by Mississippi Code Section 93-5-2(5). As such, she argued, the court lacked jurisdiction to grant the divorce based on irreconcilable differences.
The Mississippi Supreme Court, having recently decided this same issue in Irby v Irby, said its decision in Irby “made it exceedingly clear that, pursuant to Mississippi Code Section 93-5-2, no such withdrawal of the initially asserted fault-based grounds is necessary.” Irby v. Irby, 7 So. 3d 223 (Miss. 2009). The problem was six weeks prior to the Irby decision, the Mississippi Court of Appeals dealt with the same issue and reached the opposite conclusion. Pittman v. Pittman, 4 So. 3d 395 (Miss. Ct. App. 2009). However, the Mississippi Supreme Court did not specifically overrule the Court of Appeals’ decision in Pittman when it handed down the Irby decision. It has now. As the Court said,
The ‘trial by mutual consent’ found in subsection (3) permits divorces to proceed based on irreconcilable differences where the parties consent to such after previously asserted fault-based grounds... Therefore, our decision in Irby reasoned, without expressly stating, that the filing of the mutual-consent agreement detailed in subsection (3) of Section 93-5-2 operates as a cancellation and withdrawal of the contests or denials referenced in subsection (5).
While this issue will mean little to most other than divorce lawyers, it resolves the confusion left after the Pittman and Irby cases.
