If you want to get technical, they are really affirmative defenses. I describe an affirmative defense as an “yes, but” defense. By that, I mean that the person raising the defense pretty much admits that the allegations made by the spouse seeking the divorce are true, but there are some more facts that constitute the defense.

Condonation

The first of the defenses is condonation. As you can guess from it’s name, this occurs when the offended spouse either gave permission for the behavior or has forgiven the other for the behavior.  For example, I have had clients who have said they had extramarital relations with their spouse’s permission. In such a case, the spouse would have condoned the behavior by the spouse engaged in the relationship, and could not use adultery as a basis to end the marriage.

Ratification

If you wait too long to sue for divorce, your spouse may be able to claim that you have ratified their bad behavior. This is very similar to condonation, but there does not have to be any proof that the offended spouse has forgiven the offending spouse. All that is required is that the offended spouse knew of the offensive behavior, and did nothing about it for a sufficient period of time.

What is a sufficient period of time? There’s no clear–cut answer to that; it all depends on the facts. Certainly, if you are seeking a divorce on the basis of chronic drunkenness, and you have known about your spouse’s drunkenness for ten years, but never did anything about it, I would claim that the drunkenness has been ratified by you staying.

This may be another example of how the laws in Mississippi are prejudicial against the poor and women. In a situation like the one I have described, it may be that the offended spouse (often the wife) has no other place to go or does not have independent funds sufficient to leave her husband. I, for one, would say that such situation is not a true ratification, but, rather, was done out of duress.

Reformation

The defense of reformation is sometimes called repentance. This is typically used against grounds related to alcohol or substance abuse. If the using spouse has reformed their ways and given up the drink or the drug, then the grounds no longer exist.

Collusion

Just a quick word on collusion. Unlike the others, this is a true defense, and not an affirmative defense. Before irreconcilable differences existed as a basis for divorce in Mississippi, Spouses would often agree to make up grounds so they could end the marriage. When one spouse then changed their mind, they could use the defense of collusion.

Collusion has left its mark on divorce law in Mississippi, even though it’s no longer a viable defense. In any complaint for a fault-based divorce, the party who files must swear under oath that the grounds truly exist, and they are not in collusion with their spouse.

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.”