The Possible Pitfalls of An Irreconcilable Differences Divorce

     As I talked about in Divorce Basics, an irreconcilable differences divorce is frequently the best option for both parties. Agreeing to the terms of the settlement agreement typically yields better results and minimizes resentment as to the terms of the agreement. You will almost always be happier with an agreement you had a hand in drafting than with a settlement agreement dictated by the court. While all of that is true, attempting to reach a fair settlement agreement with your soon to be ex-spouse is rarely a walk in the park - and the agreement requirement of the irreconcilable differences divorce in Mississippi can sometimes play a central role in the difficulty.
     In order to be granted a divorce for irreconcilable differences it is required that the parties must agree to be divorced. If one party does not consent to be divorced, a divorce can not be granted on irreconcilable differences. This required agreement can become problematic because at any time until the entry of divorce one party may withdraw its consent. For example, two parties have agreed to an irreconcilable differences divorce and have spent months negotiating back and forth to come up with a settlement agreement, investing a lot of time, emotion, and money to reaching an agreement - and then one side withdraws consent.
     When this does occur it is usually because the party withdrawing consent is not satisfied with how negotiations are going and believes they could obtain a more favorable agreement by pursuing a divorce on fault grounds and allowing the chancellor to equitably distribute the property. Or they may believe that if they simply 'wait out' the opposing party, eventually they will want a divorce bad enough that they will concede to an agreement more favorable to the party withdrawing consent.
     This type of maneuver is sometimes referred to as 'divorce blackmail', and it can be particularly frustrating when the party seeking to be divorced does not have sufficient evidence or circumstances to be granted a divorce on fault grounds. As long as the opposing party withholds consent, there will be no divorce. This can be particularly frustrating for clients who have invested time and money into the process because they are seeking to get out of a bad marriage and can not understand why they can't be divorced without their spouses approval.
     While irreconcilable differences can frequently be the best option for both parties, it still has room for improvement.

Divorce Basics

In Mississippi, there are two different ways by which one can obtain a divorce.

One way is through 'fault' grounds - fault grounds include adultery, cruel and inhuman treatment, habitual drunkenness, habitual drug use, and desertion. When a fault ground exists, it is typically because one party is more to blame for the failure of the marriage. When a party has a fault based ground for divorce - for example their spouse has committed adultery - the party may be granted a divorce by the court even if there is no agreement between spouses to be divorced.

The other way in which one can obtain a divorce in Mississippi is through 'irreconcilable differences'. Irreconcilable differences requires agreement of the parties, unlike a divorce obtained on a fault ground, and is sometimes referred to as a 'No-Fault' divorce. An irreconcilable differences divorce can come about in a couple of ways. First, the parties could agree to every aspect of the divorce including custody and visitation arrangements, division of property, and support. Alternatively, the parties may agree to divorce, but can not agree on all the issues. In this situation the parties may elect to have a trial in which the court decides issues that the parties can not agree on.

By far, most divorces in Mississippi are granted for irreconcilable differences. Even when a complaint is filed based on fault grounds it is common place to alternatively request a divorce based on irreconcilable differences in case the parties agree to settle. Most of the time, if a reasonable agreement can be made, it is in the best interest of both parties to do so for a couple of reasons. First, it saves the parties the cost of extensive discovery, trial preparation, and the actual trial which can significantly drive up the cost of a divorce. Second, most people tend to be more satisfied with a settlement agreement that they had a hand in negotiating and drafting versus having the court decide for them. Additionally, it saves the family from the sometimes irreparable harm that can come as a result of litigating a fault ground based divorce. This is especially true when there are children involved.

While irreconcilable differences divorces are the most common, and can frequently provide the best outcome for both parties, they don't always provide the best resolution. Next time we will discuss why the requirement that the parties must agree can be problematic.