Mississippi Waiting Period for I.D. Divorce

In Mississippi, a party can obtain a divorce on the grounds of irreconcilable differences after the complaint has been on file for 60 days.  What happens if it is not?  " Divorce in Mississippi is a creature of statute." Gardner v. Gardner, 618 So.2d 108, 111 (Miss.1993). " A divorce based on irreconcilable differences has certain statutory requirements that must be met." Perkins v. Perkins, 787 So.2d 1256, 1261(11 11) (Miss.2001). Strict compliance with the statute is required. Id. at 1264(1124). One such requirement is that " [c]omplaints for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard." Miss.Code Ann. § 93-5-2(4) (Supp.2008) (emphasis added). The Mississippi Legislature, in using the word " must," did not give chancellors any discretion to waive the sixty-day requirement. 

I have seen one case where an opposing attorney miscalculated the number of days and entered the decree on day fifty-nine (59) and the other party remarried a few years later.  Post divorce issues arose and the new attorney moved to set the divorce aside which was granted as the divorce was void which made the second marriage void also.    That is one case I was glad I did not represent either party. 

Here is an issue to think about though.  Is the sixty (60) days really from the time the complaint is filed or the time of both parties being before the Court?

Shelton Hand in his excellent treatise Mississippi Divorce, Alimony, and Child Custody with Forms specifically discussed this situation. In §4.14 of his book he states that:

"The irreconcilable differences statute demands a 60-day waiting period before any divorce is granted. It is essential, however, that the 60 days be calculated from the day that both parties are before the court. The statute only requires that the bill of complaint be on file for 60 days, but the Supreme Court, approving the Uniform Chancery Court Rules, dictated that the 60 days be counted from the date when both parties are fully before the court. This could be by joint bill, the defendant must have been served with personal process, or entered his  personal appearance by waiver of process before the 60-day period may begin to run."  (emphasis added).

I have had one chancellor take this position and I have had another chancellor say that it is merely the complaint being on file for sixty (60) days.  I took this issue on interlocutory appeal a few years back and did not get a ruling.  The case settled in the meantime with language to address this issue.  Here is my two cents.  Jurisdiction of the court does not attach until a party is served, joint complaint filed, or a waiver of process done.  How can you waive a statutory right if you are not even legally before the Court?  Anyway, since reading this I now take the extra time and wait sixty (60) days from the waiver or service or process.