Fault-Based Divorce in Mississippi

Under Mississippi law, there are 11 grounds for a fault-based divorce. Of these, the most common two grounds are adultery and habitual cruel and inhuman behavior. I’ll discuss each of these in more detail.

Adultery is defined as “voluntary sexual intercourse of a married person with a person other than the offender’s spouse.” A single occurrence of adultery may be sufficient. Adultery may be determined by either direct evidence, such as admissions, or by circumstantial evidence. If the latter, clear and convincing evidence must be proven of both the offender’s proclivity for adultery and a reasonable opportunity to satisfy the proclivity.

A common question is whether adulterous conduct after the spouses have separated may be used as grounds for a divorce. While it can be grounds, I believe most courts will look at how long the spouses have been separated to determine if it was the actual cause for divorce.

It is still a law on the books that an adulterer may be barred from remarriage. Personally, I don’t think this law would stand up under constitutional scrutiny, and I have never heard of a judge putting such a provision in a judgment of divorce.

Habitual cruel and inhuman treatment involves two different types of behavior, either of which is sufficient to claim habitual cruel and inhuman treatment. The first type of behavior is that which endangers the “victim” spouse. The other type is behavior that is abnormal, revolting, and unnatural.

Generally, it takes multiple incidents of such treatment to be sufficient to claim this ground. However, a divorce has also been granted when there has been one act of extreme violence or when one act of physical violence is accompanied with a pattern of verbal or emotional abuse.

Habitual drunkenness is rarely used as a basis for divorce. I personally believe this is because the habitual drunkenness leads to habitual cruel and inhuman treatment in many cases, and that is easier to prove. As with any fault-based ground for divorce, one would have to prove that the offending spouse is habitually intoxicated, and that the intoxication has made it impossible to continue the marital relationship. The habitual drunkenness must continue until the time of the trial.

Habitual drug use, strictly speaking, refers to the use of opium, morphine, or other like drug, for those are the drugs mentioned in the divorce statute. That being said, the courts have been somewhat lenient on finding that an addiction to drugs falls under an “other like drug.” The courts seem to focus more on the effects the drugs has on the person.

Legitimate prescription drug use is not sufficient to prove habitual drug use. This is true even in situations where the user is physically dependent upon the drugs. However, the abuse of prescription drugs can be used to prove this ground.

Bigamy is both a basis for divorce and a basis on which a marriage may be annulled. It is the later marriage that would be ended by a divorce for bigamy, and not the earlier marriage.

Insanity at the time of the marriage may be used as a ground only by the spouse who is sane. However, an interested third party may seek to have the marriage annulled on this basis. Should the sane spouse fail to attempt a divorce within a reasonable time after discovering the condition, he or she may be barred from seeking a divorce on this basis.

Pregnancy by another at the time of the marriage, like insanity, is also a cause for annulment. The husband must be unaware of his bride’s pregnancy at the time of the marriage.

Desertion may be used as a basis for divorce if it has been continuous for at least one year. The absence must not be by agreement, and the offending spouse has to have intended to abandon the marriage. It is also possible for constructive desertion to exist. This is used in cases of abuse where the abused spouse has fled from the home. Here, even though the abused spouse has left the home, he or she is considered to be the one who was deserted by the abusing spouse. Additionally, in at least one instance, the Mississippi Supreme Court has said the refusal to have sex is constructive desertion.

Imprisonment for more than one year is, for the most part, self-explanatory.

Natural impotency can only be raised by the non-impotent spouse. The impotent spouse may seek an annulment on the basis of incurable impotency.

Institutionalization for insanity, or “incurable insanity” can be a ground for divorce when the institutionalization has lasted for at least three years. A divorce on this basis does not relieve the non-institutionalized spouse from supporting his or her spouse “in any way.”