1998 Regular Session
By: Senator(s) Smith
Senate Bill 2361
AN ACT TO ENACT THE "PRE-DIVORCE COUNSELING ACT"; TO REQUIRE PARTIES TO A DIVORCE TO OBTAIN COUNSELING; TO PROVIDE EXCEPTIONS THERETO; TO AMEND SECTIONS 93-5-1 AND 93-5-2, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) This section shall be known as the "Pre-Divorce Counseling Act" and shall be codified in Title 93, Chapter 5, Mississippi Code of 1972.
In any action for divorce the court shall stay the proceedings for a period of one (1) year if there are minor children in the family.
(2) While a stay is in effect, the court shall enter an order of legal separation and shall provide for the custody of children, division of property, payment of debts, payment of child support and payment of spousal support and shall require both parties to obtain counseling as provided in this section. The one-year stay and period of separation shall be calculated from the date the court enters its first order of separation.
(3) The parties shall, as a couple, attend a minimum of eight one-hour sessions with a member of the clergy, a mental health professional or a counselor licensed as provided in Title 73, Chapter 53, 30 or 31, Mississippi Code of 1972, or a similarly qualified person.
(4) If at any time during the one-year stay the parties agree that reconciliation has occurred, the court shall discontinue the legal separation.
(5) At any time during the stay, either party may petition the court for an order finding that:
(a) Real and substantial differences exist; and
(b) Reasonable attempts at reconciliation have been actively and steadfastly pursued in a manner and for a period of time such that a real opportunity for reconciliation has occurred; and
(c) No reasonable opportunities for reconciliation remain.
Following a full hearing, the court may enter an order stating the specific findings required in paragraphs (a) and (b) of this subsection and may enter a decree of divorce, incorporating the matters set out in the order of separation.
(6) After the expiration of the one-year stay and separation, if the court finds grounds for divorce still exist, divorce may be granted by the court.
SECTION 2. Section 93-5-1, Mississippi Code of 1972, is amended as follows:
93-5-1. (1) Divorces from the bonds of matrimony may be decreed to the injured party for any one or more of the following twelve causes, viz:
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. Insanity or idiocy at the time of marriage, if the party complaining did not know of such 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 such pregnancy.
Eleventh. Either party may have a divorce if they be related to each other within the degrees of kindred between whom marriage is prohibited by law.
Twelfth. Incurable insanity. But no divorce shall be granted upon this ground unless the insane party shall have been under regular treatment for insanity and causes thereof, confined in an institution for the insane for a period of at least three (3) years immediately preceding the commencement of the action. Provided, however, that transfer of an insane party 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 insane party in an institution for the insane, shall be regular treatment for insanity 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 the insane in computing the required period of three (3) years' confinement immediately preceding the commencement of the action. No divorce shall be granted because of insanity until after a thorough examination of such insane person by two (2) physicians who are recognized authorities on mental diseases. One such physician shall be either the superintendent of the state hospital or the veterans hospital for the insane in which the patient is confined, or a member of the medical staff of such hospital who has had the patient in charge. Before incurable insanity can be successfully proven as a ground for divorce, it shall be necessary that both such physicians make affidavit that such patient is a mentally disturbed person 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 insanity, such as would justify a divorce based thereon. Service of process shall be made on the superintendent of the hospital in which the defendant is a patient. In event the patient is in a hospital 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 said hospital. In addition thereto, process shall be served upon the next blood relative and guardian, if any. In event there is no legal guardian, the court shall appoint a guardian ad litem to represent the interest of the insane person. Such relative or guardian and superintendent of the 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 insane person shall not be altered in any way by the granting of the divorce.
However, in the discretion of the chancery court, and in such cases as the court may deem it necessary and proper, before any such decree is granted on the ground of incurable insanity, 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 such insane person during the remainder of his or her natural life, unless such insane person has a sufficient estate in his or her own right for such purpose.
(2) It shall be a condition precedent to the granting of a divorce that the parties shall comply with the requirements of the Pre-Divorce Counseling Act.
SECTION 3. Section 93-5-2, Mississippi Code of 1972, is amended as follows:
93-5-2. (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) It shall be a condition precedent to the granting of a divorce that the parties shall comply with the requirements of the Pre-Divorce Counseling Act.
SECTION 4. This act shall take effect and be in force from and after July 1, 1998.