Archive for March, 2017

And Now We Wait – Domestic Amendment Passes Mississippi House

Sunday, March 19th, 2017

Last week, the Mississippi House passed a bill addressing domestic violence as a ground for divorce in the state, just one month removed from killing such a bill. The bill that would modify the grounds for divorce to include domestic violence passed in the Senate, but was not even voted on in the House. Representative Andy Gipson took the brunt of the criticism, largely because of his remarks that if domestic violence is occurring, the perpetrator needs “to have a change of heart” rather than be divorced from.

The specific language of the bill that was killed by the House added the words “including spousal domestic abuse” to the current Mississippi divorce ground of habitual cruel and inhuman treatment. Gipson cited the “floodgates” of divorce that would be opened with the bill’s passage as his reason for opposing the amendment. Strangely, the language of the new amendment that Gipson approved seems to extend beyond that of the bill he opposed.

The new amendment allows for a divorce to be granted when both abusive physical and non-physical conduct is taking place in a marriage. The “abusive physical conduct” section provides for a divorce for the cause of habitual cruel and inhuman treatment to be granted to the injured party when that party’s spouse has attempted to cause or has purposely, knowingly or recklessly caused bodily injury to that party. That proposed section also includes putting the injured party in fear of imminent serious bodily harm.

The “abusive non-physical conduct” section is where the new proposed amendment goes further than previous legislation. This section allows a divorce for habitual cruel and inhuman treatment to be granted where a pattern of abusive non-physical conduct such as threats, emotional or verbal abuse, forced isolation, sexual extortion, stalking, and economic financial abuse.

Several parts of this new amendment really stick out and will most likely be the catalysts for this amendment to affect change in Mississippi divorce law. For abusive physical conduct to be grounds for a divorce, the conduct must be established through the reliable testimony of one or more credible witnesses, and any of those witnesses may be the injured party. This is a huge sentence of this amendment, as the majority of domestic violence happens behind closed doors with only the two spouses present. This gives the abused spouse more ammunition than previously available to pursue a divorce.

The standards of proof also play a large part in the new changes. When reliable testimony comes from only one credible witness (who can be the injured party), the standard is clear and convincing evidence, which is the highest burden of proof used in civil courts. When that single credible witness’s testimony is corroborated by other credible physical or forensic evidence, the burden of proof lowers to preponderance of the evidence, or “more likely than not.”

Our previous article talks about some of the behavior that divorces have been granted under habitual cruel and inhuman treatment. Mississippi courts have held that this may include only one instance, and that emotional abuse can be considered enough to grant a divorce on this ground. The Mississippi case of Harmon v. Harmon involves a divorce granted for grounds similar to those described in the “abusive non-physical conduct” section of the proposed amendment. In that case, the husband exhibited stalking behavior, often appearing at the wife’s workplace and following her on lunchbreak. He also often used disparaging language toward her. The wife was granted a divorce, showing that Mississippi courts are willing to grant divorces for habitual cruel and inhuman treatment for non-physical abuse.

While the substance of the amendment will not alone provide a large change in the operation of Mississippi law when dealing with divorce, there are two huge parts that we believe will have the highest impact. The first is the provision that allows evidence of domestic violence to be offered by a single credible witness which may be the injured spouse. As mentioned before, much of domestic violence happens without witnesses other than the spouses, and allowing this evidence to come from the injured party helps abused spouses immensely.

The second and not-so-obvious benefit from this amendment is the ability it gives normal, everyday Mississippians for exploring their options. Many instances of domestic violence go unreported for any number of reasons. Often, abused spouses may not even consider speaking with an attorney out of fear that their spouse may find out, possibly leading to physical or economic abuse. Someone being abused may have had a bad experience with the legal system or just attorneys in general. There are numerous reasons people will not speak with lawyers. Not every Mississippian has access to the legal resources that attorneys do, or even the ability to read and fully understand the state’s divorce statute. If an abused spouse believes that speaking with an attorney too risky for whatever reason, explicitly including provisions regarding physical and non-physical abuse allows that person to read the statute themselves and have a better understanding of their rights.

The proposed amendment has passed in the Mississippi House, including the vote of Representative Gipson. Whether his agreement to this amendment is the result of his recent public crucifixion or a genuine belief that this amendment is more satisfactory than the one he killed is of no consequence. If this proposed amendment is voted for by the Mississippi Senate, it will become part of the divorce grounds in the state. This amendment is good for the people of Mississippi, as it provides more understanding into what our divorce law provides as well as more options to those experiencing domestic abuse.

As mentioned in our past articles, if you or anyone you know is experiencing abuse in a marriage, we encourage you to immediately seek help. Our office will be happy to help in any way we can. For help in combating abuse or any other family law problem, please call the Law Office of Matthew S. Poole at (601) 573-7429.

By Kenneth Davis, J.D. Candidate 2017.  Law Clerk to Matthew Poole. 

And There Were Still Twelve – Domestic Violence and Divorce Grounds in Mississippi

Sunday, March 5th, 2017

Recently, the Mississippi Legislature again voted against a bill that would make domestic violence the thirteenth ground for divorce in Mississippi. As to be expected, there has been large public backlash around the state regarding this decision. Much of this criticism seems to be directed at the legislature’s seeming insensitivity to the seriousness of domestic violence. While our office condemns domestic violence in every form, it is important for Mississippians to know the effects of this decision on a divorce case in the state.

There are twelve grounds for divorce in Mississippi, which are listed elsewhere on our website for your viewing. Our concern today is the ground of habitual cruel and inhuman treatment, which is the ground most likely to be at the front of a divorce where domestic violence is occurring. While domestic violence is still not explicitly a part of Mississippi divorce grounds, cruel and inhuman treatment allows abuse to be addressed by courts in the state. The phrase is vague, and has been examined through many different lenses throughout the years.

Marriage is, for lack of a better word, hard. Arguments and unpleasantness are simply parts of both marriage and life. Therefore, habitual cruel and inhuman treatment must extend beyond rudeness, unkindness, or mere incompatibility. Although the word “habitual” indicates that this behavior must be continuous or systematic, Mississippi courts have held that a single instance can provide grounds for a divorce. Kumar v. Kumar, 976 So.2d 957, 961 (Miss. Ct. App. 2008). Physical violence or even a threat of it isn’t required to show proof of cruel and inhuman treatment. Cruel and inhuman treatment can also take the form of emotional abuse, which can later lead to actual violence.

The case of Harmon v. Harmon, 141 So. 3d 37 (Miss. Ct. App. 2014) showcases less severe grounds enabling a divorce in Mississippi. In that case, a wife testified that her husband of five years regularly accused her of adultery, called her derogatory names, followed her on breaks from work, and appeared often at her place of work. Her daughter and co-workers testified to her agitated manner following his actions, and that she was experiencing suicidal thoughts as well as murderous thoughts about her husband. The husband was also a compulsive gambler. The court of appeals affirmed the grant of divorce based on habitual cruelty. This case shows that grounds much less severe than physical domestic violence can effectuate a divorce in Mississippi, and that habitual cruel and inhuman treatment is an effective ground for divorce under even minimally violent or abusive circumstances.

While the Legislature’s decision is disappointing, the twelve current grounds for divorce in Mississippi sufficiently allow for a divorce to be granted. The Legislature declining to add domestic violence as a thirteenth ground does not mean that occurrences of domestic violence cannot provide a ground for a divorce. The current statutes provide grounds for divorce in abusive scenarios, albeit under a different label. It is also important to also note that Constructive Desertion can be recognized as ground for divorce when the conduct of one spouse is subjectively ruining the ability to maintain a normal, healthy marriage.

If you or someone you know is experiencing domestic violence, our office encourages you to seek help, and to feel confident in pursuing a divorce because of that violence. Despite the number of grounds staying at twelve, Mississippians should feel confident in the professionals of the legal system, and their ability to realize when domestic violence entitles a person to a divorce.

By Kenneth Davis, J.D. Candidate 2017.  Law Clerk to Matthew Poole.