This is in response to your memorandum dated May 22, 2000, requesting an opinion regarding
the effective date of divorce in Mississippi. Sandra E. Y~ and Summer B. Y~ were entitled
to benefits effective January 1996 as the spouse (with child in care) and stepchild,
respectively, on the record of Bobby J. Y~. Sandra and Bobby were divorced in Mississippi
in January 1999. Sandra's benefits were terminated that month, and Summer's benefits
were terminated the following month. Sandra's attorney protested the termination dates.
He said the divorce was not final under Mississippi law until May 10, 1999, the date
the judge equitably distributed the property between the parties.
Our research reveals that by Mississippi statute, parties to a divorce proceeding
may consent to a divorce on grounds of irreconcilable differences, and permit the
court to decide issues of custody and maintenance of children and/or property rights
on which the parties are unable to agree. Miss. Stat. Ann. ' 93-5-2(3). However, the
statute provides the court's decision on these issues is the lawful and binding judgment,
and that no divorce can be granted until all matters in dispute have been adjudicated
and included in the judgment. Thus, it appears that a divorce is not final in Mississippi
until the court has entered a judgment as to disputed child custody and maintenance
and/or property rights.
In Johnston v. Johnston, 722 So. 2d 453 (Miss. 1998), the court held the trial court erred in granting a
"divorce absolute" on the grounds of irreconcilable differences before the final adjudication
of property rights. This was also the holding in Rounsaville v. Rounsaville, 732 So. 2d 909 (Miss. 1999).
Although, in this case, the court entered a "Final Judgment of Divorce" on January
12, 1999, and appeared to resolve all property issues, Sandra filed a motion to set
aside the judgment. The court granted Sandra's motion on January 14, 1999, granted
the divorce on the grounds of irreconcilable differences, and set a hearing on the
issues of division of marital assets and property settlement. In our opinion, the
parties' divorce was not final under Mississippi law until May 10, 1999, the date
the court entered its order equitably distributing the property between the parties.