Fault–Based Divorces

Divorce can be one of the most painful and stressful experiences a person goes through in life. Many important decisions must be made-in a short period of time-that have the potential to impact the rest of your life, as well as the lives of your children. It is critical to avoid making hasty, misguided decisions when going through a divorce in Mississippi, especially when your children or property is involved. As an experienced divorce lawyer in the Jackson area, I have seen first-hand the problems caused by a party making a heat-of-the-moment decision during a divorce. All too often, these problems could be avoided and possibly even resolved with the proper legal counsel. An experienced family law attorney can help you sort through the difficult decisions you must make and help protect your best interests, as well as the best interests of your children, throughout the divorce process. If you are in need of an experienced Jackson divorce attorney to help you through a divorce or other family law matter, please feel free to contact me at 601-607-5055, or using the contact form on the right of this page.

A Mississippi “fault-based” or “contested” divorce alleges marital misconduct or some other type of improper conduct. In Mississippi, there are twelve (12) grounds for seeking a fault-based divorce, including:

1. Natural Impotency - a spouse may obtain a divorce in Mississippi by proving the defendant is “naturally impotent”. Few cases in Mississippi discuss this ground for divorce. However, cases from other jurisdictions suggest that impotency is an incurable ability to engage in sexual relations (possibly due to a physical condition or even a sexually transmitted disease), not the inability to procreate.

2. Adultery - In Mississippi adultery is defined as “voluntary sexual intercourse of a married person with a person other than the offender’s spouse” One act of adultery is a ground for divorce. Adultery can be directly established in court by the spouse admitting to adultery, by the testimony of the paramour, or other direct evidence including audio and video recordings, testimony of friends, family, medical professionals, and/or private investigators, pictures, etc. However, Jackson divorce lawyer M. Devin Whitt also can help you establish adultery by clear and convincing circumstantial evidence showing: (a) a spouse’s generally adulterous nature, including infatuation with another person or a proclivity to adultery, and, (b) a reasonable opportunity to satisfy the infatuation or proclivity. Circumstantial evidence of adultery could include: overnight stays with a suspected paramour, giving or receiving gifts to a paramour, physical affection or admissions of affection towards another, frequent phone calls, text messages, cards, or other correspondence to the suspected paramour, and other secretive behavior relating to the paramour.

   Condonation is a defense available to a claim of adultery in Mississippi. Under the defense of condonation, a spouse who resumes a sexual relationship after learning of the other’s adulterous affair has forgiven, or “condoned” the adultery. Condonation may bar the divorce based on adultery.

3. Incarceration - Divorce may be granted to an individual whose spouse is incarcerated or even sentenced to a penitentiary without pardon prior to being incarcerated.

4. Desertion - In Mississippi, a spouse’s “wilful, continued and obstinate desertion” for a period of a year is grounds for a divorce. Miss Code Ann. § 93-5-1 (2004). This claim focuses on one spouse’s abandonment of the marriage without the other’s consent and, to prove this ground, the plaintiff must show: (a) the spouse was absent for a year or more; (b) the spouse intended to leave or abandon the marriage; and, (c) the plaintiff did not consent to the separation.

   Under this ground for divorce, the desertion must be continuous for a year or more. In other words, if the spouses temporarily reconcile, then the period before and after the reconciliation may not be combined to reach the one year period. However, a short resumption of sexual intimacy during the marriage may not interrupt the one year period if there is no intent to actually return to the marital relationship.

   The spouse must also intend to leave the marriage. For example, absence for a legitimate reason, i.e. to find work or to take care of a sick parent, is not desertion if the spouse plans to return to his or her family. However, should the spouse decide not to return or the reason prove to be fabrication, the absence may constitute desertion.

   Finally, the spouse claiming desertion in Mississippi must not have consented to the separation. Separation by agreement or consent is not desertion. Instead, the evidence supporting the desertion claim must show that one spouse intended to abandon the marriage while the other spouse stood ready and willing to reconcile or continue the marriage.

   A good faith (unqualified) offer of reconciliation within the one year period made by the deserter not only stops the period of desertion, but also may even give the spouse offering the return grounds for a desertion claim if the offer is unjustifiably refused for a one year period. An innocent spouse receiving a good faith offer of reconciliation gets a reasonable amount of time to consider and respond any offer and the deserter must respond to any concerns.

   The doctrine of “constructive desertion” is also available to an individual in Mississippi in extreme cases where a spouse abandons a home to escape abusive conduct. In this situation, the spouse leaving the home to avoid violent or otherwise abusive conduct making the marriage unendurable or dangerous to health or safety may qualify as the deserted rather than the deserting party. Moreover, the refusal to have sexual relations with a spouse may constitute constructive desertion if the refusal continues for a lengthy duration.

5. Habitual drug use - A spouse may be entitled to a divorce based on the defendant’s “habitual” and “excessive” use of “opium, morphine or other like drugs.” Miss Code Ann. § 93-5-1 (2004). In Mississippi, “habitual” means customarily and frequently as opposed to occasional use while “excessive” means that the user is so addicted that he cannot control his appetite for drugs. “Other like drug” also requires that the drug produce an effect similar to that of opium or morphine making the user act irresponsibly. The use of illegal drugs and the misuse of prescription drugs both qualify as grounds for divorce. However, the use of the drug must continue at the time the complaint for divorce is filed. If the use or addiction is resolved prior to filing, a divorce will not be awarded on this grounds.

6. Habitual drunkenness - this ground is related to habitual drug use and allows a spouse to receive a divorce on proof that the other is habitually drunk. To qualify for a divorce under this ground, a plaintiff should show with the assistance of Jackson divorce lawyer M. Devin Whitt that a spouse was frequently intoxicated, that the drinking had an adverse effect on the marriage and that the improper conduct continued at the time the divorce complaint was filed.

7. Habitual, cruel and inhuman treatment - This is one of the most common grounds for divorce in Mississippi, yet one of the toughest to prove. This ground allows a divorce where the defendant’s habitual cruel or inhuman conduct has an adverse impact on the physical and/or mental health of the innocent spouse. To prove this ground a plaintiff must show: (a) conduct by the defendant that meets the test for cruelty; (b) a casual connection between the conduct and the physical or mental harm to the plaintiff; and, (c) corroborating evidence of the defendant’s conduct and/or the impact on the spouse’s mental or physical health.

   Under this ground, one act of the defendant may not be sufficient to warrant a divorce, while looking at defendant’s conduct as a whole will support a divorce on the ground of habitual cruelty. Typically one or more incidents of severe physical violence will meet the standard of extreme cruelty, while evidence of an ongoing pattern of emotional abuse is required to support a grant of divorce on this ground. However, simple inability to live together as husband and wife is not cause for a divorce under this ground.

8. Insanity at time of marriage - a divorce based on insanity or idiocy is available to the sane spouse if the condition existed at the time of the marriage and the plaintiff has no premarital knowledge of the spouse’s condition. The divorce should be sought within a reasonable time or otherwise the sane spouse may be deemed to have accepted the illness.

9. Bigamy - An innocent spouse may have a ground for divorce based on the other’s “marriage to some other person at the time of the pretended marriage between the parties.” Miss Code Ann. § 93-5-1 (2004). A plaintiff seeking a divorce on this ground must show that the spouse was previously married and that the prior marriage was never dissolved.

10. Pregnancy of wife at the time of marriage - A husband may obtain a divorce on the ground of “pregnancy of the wife by another person at the time of the marriage, if the husband did not know of such pregnancy.” Miss Code Ann. § 93-5-1 (2004). However, if the husband knows his wife-to-be is pregnant at the time of marriage, a divorce will not be available to him on this ground, even if he latter finds out that the child is not his.

11. Kinship within the prohibited degree - If a husband and wife are related in a degree designated by Mississippi law as incestuous, then either of them my obtain a divorce. This law includes “parents, grandparents, step-parents or step-grandparents, adoptive parents, siblings, half-siblings, aunt, uncle, first cousin, or his or her child’s widow or widower.” Miss Code Ann. § 93-1-1 (2004).

12. Incurable Insanity - A spouse may obtain a divorce from a spouse that has been committed or confined to an institution for treatment of a mental illness for at least three years

    The above grounds may be alleged individually or in combination depending on the facts of the case, as Jackson divorce attorney M. Devin Whitt understands. However due to Mississippi’s public interest in preserving marriage, Mississippi divorce courts have an ongoing duty to fully inquire into the facts and circumstances of the facts of each case before permitting divorce. As a result, divorces in Mississippi require proof of grounds (though corroborating evidence), prohibit default judgments on the pleadings, and require that the innocent party be the spouse seeking the divorce.

Call 601-607-5055 to speak with an experienced divorce attorney in Jackson, Mississippi today.