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Divorce Quick Guide…..the “Cliff Notes”

Monday, July 22nd, 2019

Here is a quick guide as to divorce grounds in Mississippi……this list includes all recognized grounds and basic judicial interpretation of those reasons for legal rights to divorcing. Sometimes several are applicable to divorcing spouses.

FAULT-BASED GROUNDS FOR DIVORCE (Miss. Code Ann. 93-5-1)

Natural Impotency……..The Mississippi Supreme Court has held that divorce on this ground was not permitted where a woman’s physical condition made intercourse painful and where she pursued treatment. Sarphie v. Sarphie, 177 So. 358 (Miss. 1937

Adultery………Adultery is “voluntary sexual intercourse on the part of either spouse with a person other than his or her own spouse.” Owen v. Gerity, 422 So. 2d 284 (Miss. 1982). Adultery may be shown by circumstantial proof or a generally adulterous nature, combined with evidence of a reasonable opportunity to satisfy the infatuation of proclivity. McAdory v. McAdory, 608 So.2d 695 (Miss.1992). Direct evidence is not required. No need to have concrete proof!

Being sentenced to a penitentiary………..The statute was, several years ago, amended to read “sentenced to any penitentiary.”

Desertion….willful, continued, obstinate desertion for the marital space or domicile for a period of one year.

Constructive Desertion (as an option where physical desertion is not available)………Mississippi recognizes constructive desertion (where on spouse engages in conduct that forces the other to leave the marital home or renders the continuation of the marriage “unendurable”. (A subjective standard).

Refusal to have sexual relations (as a form of constructive desertion)…… This must be long-standing and without good cause, such as physical pain from intercourse.

Refusal to reconcile (as a form of constructive desertion and/or desertion).

Desertion may occur when on spouse leaves the marital home, then makes a good faith effort at reconciliation and the other spouse rejects the offer. Day v. Day. 501So.2d 353 (Miss. 1987).

Habitual drunkenness……..This one needs little explanation.

Habitual use of opium or “other like drug”….note that the Court of Appeals has broadened the definition of other “like” drugs. Marijuana is now considered a “like” drug by our courts due to the effects of its use.

Habitual cruel and inhuman treatment………The courts state that the cruelty required is not such as merely to render the marriage undesirable or unpleasant. Where both parties file on this ground, the chancellor must determine who is more at fault and grant the divorce to the other party. Hyer v. Hyer, 636 So.2d 381 (Miss. 1994).

Incurable Insanity at the time of the marriage, if the complainant was without knowledge of the insanity.

Marriage to some other person at the time of the purported marriage.

Pregnancy of the wife by another at the time of the marriage, without the husband’s knowledge.

Relation within the prohibited degrees of kindred, (a.k.a. incest).

Defenses to Divorce

Recrimination………Recrimination is the doctrine that if both spouses are guilty of fault, neither is entitled to divorce. Until 1964, this doctrine required that a Chancellor refuse to grant a divorce where both spouses were at fault. Miss. Code Ann 93-5-3 now provides that it is not mandatory that a Chancellor deny a divorce, even though the evidence may establish recrimination.

Insanity……..Insanity may be a defense to divorce based upon adultery, desertion, or cruelty.

Condonation……….Condonation is forgiveness of the marital fault by the wronged spouse, with the understanding that the conduct is not to recur. It is conditional, based upon the “good behavior” of the spouse at fault. If the conduct recurs, the defense is removed. Condonation may result from express forgiveness, or be implied from a resumption of the marital relationship after knowledge of the conduct.

Mere resumption of residence without resumption of sexual relations does not necessarily indicate condonation. Cherry v. Cherry, 593 So.2d 13 (Miss.1991).

Connivance………Connivance is one spouse’s implicit consent to the wrongful conduct of the other. The defense of connivance arises from the fault-based notion of a “wronged” spouse; if the innocent spouse did not object to the conduct, he or she has not been wronged. It typically applies to adultery claims.

Collusion……..Collusion occurs when the parties agree to frustrate the divorce procedure in some way, by creating grounds, or by agreeing not to defend a case, MS Code Ann 93-5-7 requires that for every divorce except those on the ground of irreconcilable differences, the parties must attach an affidavit stating that the action is not the basis of collusion.

Provocation……..This is a bar to divorce where the complainant provoked the conduct to the wrongdoing spouse most likely be used in response to a divorce action based upon desertion. This act allows a stay of proceeding for persons in the military and must be granted unless it can be shown that the applicant’s rights will not be materially affected by the proceeding.

Matthew Poole is a Jackson, MS family lawyer specializing in custody and custody modification matters. He was admitted to the Mississippi Bar in 2004.