Mississippi Divorce Laws

 

		§ 93-5-1. Causes for divorce.

 

		Divorces from the bonds of matrimony may be decreed to the injured party for any one or more of the following twelve (12) causes:

		First. Natural impotency.

		Second. Adultery, unless it should appear that it was committed by collusion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after a knowledge by complainant of the adultery.

		Third. Being sentenced to any penitentiary, and not pardoned before being sent there.

		Fourth. Willful, continued and obstinate desertion for the space of one (1) year.

		Fifth. Habitual drunkenness.

		Sixth. Habitual and excessive use of opium, morphine or other like drug.

		Seventh. Habitual cruel and inhuman treatment.

		Eighth. Mental illness or mental retardation at the time of marriage, if the party complaining did not know of that infirmity.

		Ninth. Marriage to some other person at the time of the pretended marriage between the parties.

		Tenth. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy.

		Eleventh. Either party may have a divorce if they are related to each other within the degrees of kindred between whom marriage is prohibited by law.

		Twelfth. Incurable mental illness. However, no divorce shall be granted upon this ground unless the party with mental illness has been under regular treatment for mental illness and causes thereof, confined in an institution for persons with mental illness for a period of at least three (3) years immediately preceding the commencement of the action. However, transfer of a party with mental illness to his or her home for treatment or a trial visit on prescription or recommendation of a licensed physician, which treatment or trial visit proves unsuccessful after a bona fide effort by the complaining party to effect a cure, upon the reconfinement of the party with mental illness in an institution for persons with mental illness, shall be regular treatment for mental illness and causes thereof, and the period of time so consumed in seeking to effect a cure or while on a trial visit home shall be added to the period of actual confinement in an institution for persons with mental illness in computing the required period of three (3) years confinement immediately preceding the beginning of the action. No divorce shall be granted because of mental illness until after a thorough examination of the person with mental illness by two (2) physicians who are recognized authorities on mental diseases. One of those physicians shall be either the superintendent of a state psychiatric hospital or institution or a veterans hospital for persons with mental illness in which the patient is confined, or a member of the medical staff of that hospital or institution who has had the patient in charge. Before incurable mental illness can be successfully proven as a ground for divorce, it shall be necessary that both of those physicians make affidavit that the patient is a person with mental illness at the time of the examination, and both affidavits shall be made a part of the permanent record of the divorce proceedings and shall create the prima facie presumption of incurable mental illness, such as would justify a divorce based on that ground. Service of process shall be made on the superintendent of the hospital or institution in which the defendant is a patient. If the patient is in a hospital or institution outside the state, process shall be served by publication, as in other cases of service by publication, together with the sending of a copy by registered mail to the superintendent of the hospital or institution. In addition, process shall be served upon the next blood relative and guardian, if any. If there is no legal guardian, the court shall appoint a guardian ad litem to represent the interest of the person with mental illness. The relative or guardian and superintendent of the hospital or institution shall be entitled to appear and be heard upon any and all issues. The status of the parties as to the support and maintenance of the person with mental illness shall not be altered in any way by the granting of the divorce.

		However, in the discretion of the chancery court, and in those cases as the court may deem it necessary and proper, before any such decree is granted on the ground of incurable mental illness, the complainant, when ordered by the court, shall enter into bond, to be approved by the court, in such an amount as the court may think just and proper, conditioned for the care and keeping of the person with mental illness during the remainder of his or her natural life, unless the person with mental illness has a sufficient estate in his or her own right for that purpose.

 

		Sources: Codes, Hutchinson's 1848, ch. 34, art. 2 (3, 4, 6), art. 6 (1); 1857, ch. 40, arts. 11, 12, 13, 15; 1871, §§ 1767, 1768, 1770; 1880, §§ 1155, 1156, 1157; 1892, § 1562; 1906, § 1669; Hemingway's 1917, § 1411; 1930, § 1414; 1942, § 2735; Laws,  1932, ch. 275; Laws, 1938, ch. 264; Laws, 1956, ch. 248; Laws, 2008, ch. 442, § 25, eff from and after July 1, 2008.

 

		§ 93-5-2. Divorce on ground of 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 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. 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 ground 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.

		(7)  For the purposes of orders touching the maintenance and alimony of the wife or husband, "property" and "an asset of a spouse" shall not include any interest a party may have as an heir at law of a living person or any interest under a third-party will, nor shall any such interest be considered as an economic circumstance or other factor.

 

		Sources: Laws,  1976, ch. 451, § 1; Laws, 1978, ch. 367, § 1; Laws, 1990, ch. 584, § 1; Laws, 2008, ch. 547, § 1, eff from and after July 1, 2008.

 

		§ 93-5-3. Not mandatory to deny divorce because of recrimination.

 

		If a complainant or cross-complainant in a divorce action shall prove grounds entitling him to a divorce, it shall not be mandatory on any chancellor to deny such party a divorce, even though the evidence might establish recrimination on the part of such complainant or cross-complainant.

 

		Sources: Codes, 1942, § 2735.5; Laws,  1964, ch. 297, eff from and after passage (approved April 24, 1964).

 

		§ 93-5-4. Offended spouse's failure to leave marital domicile or separate from offending spouse no impediment to divorce.

 

		It shall be no impediment to a divorce that the offended spouse did not leave the marital domicile or separate from the offending spouse on account of the conduct of the offending spouse.

 

		Sources: Laws,  1976, ch. 451, § 2, eff from and after July 1, 1976.

 

		§ 93-5-5. Residence requirements for divorce.

 

		The jurisdiction of the chancery court in suits for divorce shall be confined to the following cases:

		(a) Where one (1) of the parties has been an actual bona fide resident within this state for six (6) months next preceding the commencement of the suit. If a member of the armed services of the United States is stationed in the state and residing within the state with his spouse, such person and his spouse shall be considered actual bona fide residents of the state for the purposes of this section, provided they were residing within the state at the time of the separation of the parties.

		(b) In any case where the proof shows that a residence was acquired in this state with a purpose of securing a divorce, the court shall not take jurisdiction thereof, but dismiss the bill at the cost of complainant.

 

		Sources: Codes, 1892, § 1567; 1906, § 1675; Hemingway's 1917, § 1417; 1930, § 1415; 1942, § 2736; Laws,  1966, ch. 362, § 1; Laws, 1977, ch. 311, eff from and after July 1, 1977.

 

		§ 93-5-7. Conduct of divorce proceedings.

 

		The proceedings to obtain a divorce shall be by complaint in chancery, and shall be conducted as other suits in chancery, except that (1) the defendant shall not be required to answer on oath; (2) no judgment by default may be granted but a divorce may be granted on the ground of irreconcilable differences in termtime or vacation; (3) admissions made in the answer shall not be taken as evidence; (4) the clerk shall not set down on the issue docket any divorce case unless upon the request of one (1) of the parties; (5) the plaintiff may allege only the statutory language as cause for divorce in a separate paragraph in the complaint; provided, however, the defendant shall be entitled to discover any matter, not privileged, which is relevant to the issues raised by the claims or defenses of the other; (6) the court shall have full power in its discretion to grant continuances in such cases without the compliance by the parties with any of the requirements of law respecting continuances in other cases; and (7) in all cases, except complaints seeking a divorce on the ground of irreconcilable differences, the complaint must be accompanied with an affidavit of plaintiff that it is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the complaint are true as stated.

 

		Sources: Codes, Hutchinson's 1848, ch. 34, art. 2 (2); 1857, ch. 40, art. 18; 1871, § 1773; 1880, § 1161; 1892, § 1568; 1906, § 1676; Hemingway's 1917, § 1418; 1930, § 1416; 1942, § 2737; Laws,  1922, ch. 233; Laws, 1924, ch. 151; Laws, 1958, ch. 272, § 2; Laws, 1974, ch. 556; Laws, 1976, ch. 451, § 3; Laws, 1991, ch. 573, § 129, eff from and after July 1, 1991.

 

		§ 93-5-9. Minors as parties to divorce proceedings.

 

		A married minor may bring or defend a suit for divorce, separate maintenance and support, temporary maintenance or support, custody of children, or any other action involving marital rights without the necessity of a next friend or guardian ad litem, and a judgment in such cases shall be as effective as if the minor were an adult.

 

		Sources: Codes, Hutchinson's 1848, ch. 34, art. 2 (2); 1857, ch. 40, art. 18; 1871, § 1773; 1880, § 1161; 1892, § 1568; 1906, § 1676; Hemingway's 1917, § 1418; 1930, § 1416; 1942, § 2737; Laws,  1922, ch. 233; Laws, 1924, ch. 151; Laws, 1958, ch. 272, § 2; Laws, 1991, ch. 573, § 130, eff from and after July 1, 1991.

 

		§ 93-5-11. Filing of complaints; transfer of venue.

 

		All complaints, except those based solely on the ground of irreconcilable differences, must be filed in the county in which the plaintiff resides, if the defendant be a nonresident of this state, or be absent, so that process cannot be served; and the manner of making such parties defendants so as to authorize a judgment against them in other chancery cases, shall be observed. If the defendant be a resident of this state, the complaint shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the plaintiff be still a resident of such county when the suit is instituted.

		A complaint for divorce based solely on the grounds of irreconcilable differences shall be filed in the county of residence of either party where both parties are residents of this state. If one (1) party is not a resident of this state, then the complaint shall be filed in the county where the resident party resides.

		Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.

 

		Sources: Codes, Hutchinson's 1848, ch. 34, art. 2 (10); 1857, ch. 40, art. 21; 1871, § 1776; 1880, § 1164; 1892, § 1569; 1906, § 1677; Hemingway's 1917, § 1419; 1930, § 1417; 1942, § 2738; Laws,  1978, ch. 368, § 1; Laws, 1991, ch. 573, § 131; Laws, 2005, ch. 448, § 1, eff from and after July 1, 2005.

 

		§ 93-5-13. Guardian ad litem.

 

		If the defendant is an infant or a person with mental illness, the court may appoint a guardian ad litem for the defendant.

 

		Sources: Codes, 1857, ch. 40, art. 22; 1871, § 1777; 1880, § 1165; 1892, § 1570; 1906, § 1678; Hemingway's 1917, § 1420; 1930, § 1418; 1942, § 2739; Laws, 2008, ch. 442, § 26, eff from and after July 1, 2008.

 

		§ 93-5-15. Guardian for spouse who becomes mentally ill may sue for divorce.

 

		From and after March 15, 1934, any marital contract previously or hereafter solemnized by and under which parties have been duly and legally married, and one (1) of the parties to the marriage contract has become or becomes mentally ill to such an extent that it is necessary for a guardian to be appointed for that party, and the other party to the marital contract has committed any act that constitutes ground for divorce under the present laws, the guardian for the party with mental illness to the contract of marriage shall have the right to file a bill as the guardian, in the name of his ward, for the dissolution of the marriage, in the same way and manner and at the same place and on the same process that the person with mental illness could have done, if he had not become mentally ill.

 

		Sources: Codes, 1942, § 2740; Laws,  1934, ch. 306; Laws, 2008, ch. 442, § 27, eff from and after July 1, 2008.

 

		§ 93-5-17. Proceedings to be had in open court.

 

		(1)  The proceedings to obtain a divorce shall not be heard or considered nor a judgment of divorce entered except in open court. A chancellor may, in his discretion, hear or consider proceedings to obtain a divorce in vacation and make and enter judgments of divorce in the same manner as he may in other cases that may be heard in vacation pursuant to Section 9-5-91. Any judgment made or entered contrary to the provisions of this section shall be null and void.

		(2)  The chancellor in vacation may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.

		(3)  As used in this section, the term "chancellor in vacation" shall include any chancellor who is holding court at any location in any county in his district.

 

		Sources: Codes, Hutchinson's 1848, ch. 34, art. 2 (2); 1857, ch. 40, art. 18; 1871, § 1773; 1880, § 1161; 1892, § 1568; 1906, § 1676; Hemingway's 1917, § 1418; 1930, § 1420; 1942, § 2742; Laws,  1922, ch. 233; Laws, 1974, ch. 482; Laws, 1976, ch. 451, § 4; Laws, 1985, ch. 432; Laws, 1990, ch. 428, § 1; Laws, 1991, ch. 573, § 132, eff from and after July 1, 1991.

 

		§ 93-5-19. Witnesses; depositions.

 

		In the trial of suits for divorce, witnesses may be summoned, and examined in open court, as in the trial of issues of fact in the circuit court, or depositions may be taken and read as in other cases and the parties shall be competent witnesses for or against each other.

 

		Sources: Codes, 1880, § 1166; 1892, § 1571; 1906, § 1679; Hemingway's 1917, § 1421; 1930, § 1419; 1942, § 2741.

 

		§ 93-5-21. Exclusion of spectators from courtroom.

 

		The court may, in its discretion, exclude all persons from the court room during the trial except the officers of the court, attorneys engaged in the case, parties to the suit and the witness being examined.

 

		Sources: Codes, 1880, § 1166; 1892, § 1571; 1906, § 1679; Hemingway's 1917, § 1421; 1930, § 1419; 1942, § 2741.

 

		§ 93-5-23. Custody of children; alimony.

 

		When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, 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 shall be made in accordance with the provisions of Section 93-5-24. For the purposes of orders touching the maintenance and alimony of the wife or husband, "property" and "an asset of a spouse" shall not include any interest a party may have as an heir at law of a living person or any interest under a third-party will, nor shall any such interest be considered as an economic circumstance or other factor. 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.

		At the discretion of the court, any person found in contempt for failure to pay child support and imprisoned therefor may be referred for placement in a state, county or municipal restitution, house arrest or restorative justice center or program, provided such person meets the qualifications prescribed in Section 99-37-19.

		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 family courts (being Chapter 23 of Title 43, Mississippi Code of 1972).

		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 pursuant to Section 93-11-65.

		Custody and visitation upon military temporary duty, deployment or mobilization shall be governed by Section 93-5-34.

 

		Sources: Codes, Hutchinson's 1848, ch. 34, art. 2 (7); 1857, ch. 40, art. 17; 1871, § 1772; 1880, § 1159; 1892, § 1565; 1906, § 1673; Hemingway's 1917, § 1415; 1930, § 1421; 1942, § 2743; Laws,  1954, ch. 228; Laws, 1979, ch. 497; Laws, 1983, ch. 513, § 3; Laws, 1985, ch. 518, § 15; Laws, 1989, ch. 434, § 1; Laws, 1993, ch. 558, § 2; Laws, 1994, ch. 591, § 6; Laws,  1996, ch. 345, § 1; Laws, 2000, ch. 453, § 2; Laws, 2006, ch. 565, § 1; Laws, 2008, ch. 389, § 2; Laws, 2008, ch. 547, § 2; Laws, 2009, ch. 367, § 3, eff from and after July 1, 2009.

 

		§ 93-5-24. Types of custody awarded by court; joint custody; no presumption in favor of maternal custody; access to information pertaining to child by noncustodial parent; restrictions on custody by parent with history of perpetrating family violence; rebuttable presumption that such custody is not in the best interest of the child; factors in reaching determinations; visitation orders.

 

		(1)  Custody shall be awarded as follows according to the best interests of the child:

		(a) Physical and legal custody to both parents jointly pursuant to subsections (2) through (7).

		(b) Physical custody to both parents jointly pursuant to subsections (2) through (7) and legal custody to either parent.

		(c) Legal custody to both parents jointly pursuant to subsections (2) through (7) and physical custody to either parent.

		(d) Physical and legal custody to either parent.

		(e) Upon a finding by the court that both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to:

		(i) The person in whose home the child has been living in a wholesome and stable environment; or

		(ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

		In making an order for custody to either parent or to both parents jointly, the court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.

		(2)  Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.

		(3)  In other cases, joint custody may be awarded, in the discretion of the court, upon application of one or both parents.

		(4)  There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.

		(5) (a)  For the purposes of this section, "joint custody" means joint physical and legal custody.

		(b) For the purposes of this section, "physical custody" means those periods of time in which a child resides with or is under the care and supervision of one (1) of the parents.

		(c) For the purposes of this section, "joint physical custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.

		(d) For the purposes of this section, "legal custody" means the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child.

		(e) For the purposes of this section, "joint legal custody" means that the parents or parties share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.

		An award of joint physical and legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and unless allocated, apportioned or decreed, the parents or parties shall confer with one another in the exercise of decision-making rights, responsibilities and authority.

		(6)  Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.

		(7)  There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.

		(8)  Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including, but not limited to, medical, dental and school records, shall not be denied to a parent because the parent is not the child's custodial parent.

		(9) (a) (i)  In every proceeding where the custody of a child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.

		(ii) This presumption may only be rebutted by a preponderance of the evidence.

		(iii) In determining whether the presumption set forth in subsection (9) has been overcome, the court shall consider all of the following factors:

		1. Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent's absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;

		2. Whether the perpetrator has successfully completed a batterer's treatment program;

		3. Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;

		4. Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;

		5. If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and

		6. Whether the perpetrator of domestic violence has committed any further acts of domestic violence.

		(iv) The court shall make written findings to document how and why the presumption was or was not rebutted.

		(b) (i) If custody is awarded to a suitable third person, it shall not be until the natural grandparents of the child have been excluded and such person shall not allow access to a violent parent except as ordered by the court.

		(ii) If the court finds that both parents have a history of perpetrating family violence, but the court finds that parental custody would be in the best interest of the child, custody may be awarded solely to the parent less likely to continue to perpetrate family violence. In such a case, the court may mandate completion of a treatment program by the custodial parent.

		(c) If the court finds that the allegations of domestic violence are completely unfounded, 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 allegations.

		(d) (i) A court may award visitation by a parent who committed domestic or family violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of domestic or family violence can be made.

		(ii) In a visitation order, a court may take any of the following actions:

		1. Order an exchange of the child to occur in a protected setting;

		2. Order visitation supervised in a manner to be determined by the court;

		3. Order the perpetrator of domestic or family violence to attend and complete to the satisfaction of the court a program of intervention for perpetrators or other designated counseling as a condition of visitation;

		4. Order the perpetrator of domestic or family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for twenty-four (24) hours preceding the visitation;

		5. Order the perpetrator of domestic or family violence to pay a fee to defray the cost of supervised visitation;

		6. Prohibit overnight visitation;

		7. Require a bond from the perpetrator of domestic or family violence for the return and safety of the child; or

		8. Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family or domestic violence, or other family or household member.

		(iii) Whether or not visitation is allowed, the court may order the address of the child or the victim of family or domestic violence to be kept confidential.

		(e) The court may refer but shall not order an adult who is a victim of family or domestic violence to attend counseling relating to the victim's status or behavior as a victim, individually or with the perpetrator of domestic or family violence, as a condition of receiving custody of a child or as a condition of visitation.

		(f) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation.

 

		Sources: Laws,  1983, ch. 513, §§ 1, 2; Laws, 2000, ch. 453, § 1; Laws, 2003, ch. 475, § 1, eff from and after July 1, 2003.

 

		§ 93-5-25. Effect of judgment of divorce.

 

		The judgment of divorce shall not render illegitimate the children begotten between the parties during lawful marriage; but if the judgment be rendered because one (1) of the parties was married to another at the time of the marriage or pretended marriage between the parties, it shall adjudge the marriage between the parties to have been invalid and void from the beginning and the issue thereof shall be illegitimate and subject to the disabilities of illegitimate children. And the judgment may provide, in the discretion of the court, that a party against whom a divorce is granted, because of adultery, shall not be at liberty to marry again; in which case such party shall remain in law as a married person. Provided, however, that after one (1) year, the court may remove the disability and permit the person to marry again, on petition and satisfactory evidence of reformation, or for good cause shown, on the part of the party so barred from remarriage; but the actions of the court under the foregoing proviso shall not be construed as affecting any judgment of divorce granted in any case where the discretion of the chancellor has been exercised in barring one (1) party from remarriage on account of adultery.

 

		Sources: Codes, 1857, ch. 40, arts. 12, 14; 1871, § 1769; 1880, § 1158; 1892, § 1563; 1906, § 1670; Hemingway's 1917, § 1412; 1930, § 1422; 1942, § 2744; Laws,  1924, ch. 163; Laws, 1991, ch. 573, § 133, eff from and after July 1, 1991.

 

		§ 93-5-26. Noncustodial parent's right of access to records and information pertaining to minor children.

 

		Notwithstanding any other provisions of law, except those provisions protecting the confidentiality of adoption records and except for cases in which parental rights have been legally terminated, access to records and information pertaining to a minor child, including but not limited to medical, dental and school records, shall not be denied to a parent because the parent is not the child's custodial parent if such parent's parental rights have not been terminated by adoption or by a termination of parental rights proceeding.

 

		Sources: Laws,  1989, ch. 581, § 1, eff from and after passage (approved April 21, 1989).

 

		§ 93-5-27. Marital rights cease with judgment of divorce.

 

		In all cases of divorce from the bonds of matrimony, the marital rights shall cease with the judgment.

 

		Sources: Codes, 1930, § 1423; 1942, § 2745; Laws,  1924, ch. 163; Laws, 1991, ch. 573, § 134, eff from and after July 1, 1991.

 

		§ 93-5-29. Divorced persons not to cohabit.

 

		If any person who shall be divorced on account of their being within the degrees prohibited by law, shall afterwards cohabit, they shall be liable to the pains and penalties provided by law against incest. If any persons who shall be divorced on account of a prior marriage, adultery, or other cause, shall afterwards cohabit, they shall be liable to all the pains provided by law against adultery.

 

		Sources: Codes, Hutchinson's 1848, ch. 34, art. 2 (8, 9); 1857, ch. 40, art. 16; 1871, § 1771; 1880, § 1160; 1892, § 1566; 1906, § 1674; Hemingway's 1917, § 1416; 1930, § 1424; 1942, § 2746.

 

		§ 93-5-31. Judgment of divorce may be revoked.

 

		The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions as it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.

 

		Sources: Codes, 1857, ch. 40, art. 14; 1871, § 1769; 1880, § 1158; 1892, § 1564; 1906, § 1672; Hemingway's 1917, § 1414; 1930, § 1425; 1942, § 2747; Laws,  1991, ch. 573, § 135, eff from and after July 1, 1991.

 

		§ 93-5-33. Statistical requirements.

 

		All complaints for divorce shall name the parties to the suit, when married, and the number and names of the living minor children born of the marriage. It shall be the duty of each chancery clerk in the state to make a report of each divorce granted in his county; and on forms furnished by the State Board of Health, to show the following information, as correctly as he is able to make such report: Names of parties; when married; state of residence; children under eighteen (18) in this family as of date couple last resided in same household; custody of children; and the page and book in which judgment is recorded. He shall certify to the said report and affix thereunto his seal, and he shall forward it to the State Board of Health within ten (10) days after adjournment of each term of court in his county. For his services in preparing and forwarding said records to the State Board of Health he shall receive the sum of Thirty-five Cents (35?) for each completed record, to be taxed to costs in each divorce case as other fees are taxed.

 

		Sources: Codes, 1906, § 1671; Hemingway's 1917, § 1413; 1930, § 1426; 1942, § 2748; Laws,  1928, ch. 132; Laws,  1989, ch. 511, § 5; Laws, 1991, ch. 573, § 136; Laws, 2002, ch. 385, § 1, eff from and after July 1, 2003.

 

		§ 93-5-34. Child custody and visitation when a parent receives temporary duty, deployment or mobilization orders from the military.

 

		(1)  It is the purpose of this section to provide a means by which to facilitate a fair, efficient and swift process to resolve matters regarding custody and visitation when a parent receives temporary duty, deployment or mobilization orders from the military.

		(2)  As used in this section:

		(a) The term "deployment" means the temporary transfer of a service member serving in an active-duty status to another location in support of combat or some other military operation.

		(b) The term "mobilization" means the call-up of a National Guard or Reserve service member to extended active duty status. For purposes of this definition, "mobilization" does not include National Guard or Reserve annual training.

		(c) The term "temporary duty" means the transfer of a service member from one military base to a different location, usually another base, for a limited period of time to accomplish training or to assist in the performance of a noncombat mission.

		(3)  When a parent who has custody, or has joint custody with primary physical custody, receives temporary duty, deployment or mobilization orders from the military that involve moving a substantial distance from the parent's residence having a material effect on the parent's ability to exercise custody responsibilities:

		(a) Any temporary custody order for the child during the parent's absence shall end no later than ten (10) days after the parent returns, but shall not impair the discretion of the court to conduct a hearing for emergency custody upon return of the parent and within ten (10) days of the filing of a verified motion for emergency custody alleging an immediate danger of irreparable harm to the child; and

		(b) The temporary duty, mobilization or deployment of the service member and the temporary disruption to the child's schedule shall not be factors in a determination of change of circumstances if a motion is filed to transfer custody from the service member.

		(4)  If the parent with visitation rights receives military temporary duty, deployment or mobilization orders that involve moving a substantial distance from the parent's residence or otherwise have a material effect on the parent's ability to exercise rights, the court otherwise may delegate the parent's visitation rights, or a portion thereof, to a family member with a close and substantial relationship to the service member's minor child for the duration of the parent's absence, if delegating visitation rights is in the child's best interest.

		(5)  Upon motion of a parent who has received military temporary duty, deployment or mobilization orders, the court shall, for a good cause shown, hold an expedited hearing in custody and visitation matters instituted under this section when the military duties of the parent have a material effect on the parent's ability, or anticipated ability, to appear in person at a regularly scheduled hearing.

		(6)  Upon motion of a parent who has received military temporary duty, deployment or mobilization orders, the court shall, upon reasonable advance notice and for good cause shown, allow the parent to present testimony and evidence by affidavit or electronic means in custody and visitation matters instituted under this section when the military duties of the parent have a material effect on the parent's ability to appear in person at a regularly scheduled teleconference, or the Internet.

		(7)  Nothing in this section shall alter the duty of the court to consider the best interest of the child in deciding custody or visitation matters.

		(8)  Any hearing pursuant to this section shall take precedence over all other causes not involving the public interest, to the end that these cases may be expedited.

 

		Sources: Laws, 2008, ch. 389, § 1, eff from and after July 1, 2008.

Make sure to consult a lawyer or your state legislature for any changes to the law.