One of the hardest concepts for divorce client’s to accept is that Mississippi is not a “no fault” state. Mississippi does not permit a divorce unless both parties agree or unless one party has “fault grounds” such as adultery, cruelty, drunkenness, or abuse of drugs. Many cases would fall under the cruelty grounds, but the Courts have made it difficult for people to obtain a divorce on such grounds. One of the biggest problems that people face is that cruelty often does not have witnesses to what they experience. Two recent cases demonstrate this situation.
Habitual Cruel and Inhuman Treatment is conduct which endangers life, limb or health rendering the relationship unsafe for the party, or is so revolting as to render it impossible for the spouse to remain in the marriage.
In Hoskins v Hoskins, NO. 2008-CA-01369-COA (Decided November 10, 2009) Mary Hoskins was denied a divorce on the ground of cruelty. She contended her husband told her he hated her and despised her, threatened to kill her and demanded she leave the home. Mary testified her husband touched her on the nose and said, “I’m going to kill you.” Mary also testified that he once threatened to rape her. Mary testified that her husband’s treatment caused health problems such as trouble sleeping, and high blood pressure. The Court affirmed the denial of Mary’s claim to divorce for lack of corroboration. The Court noted that while corroboration is generally required, there is an exception where corroboration is not possible. In this case, the Court noted that the parties two children lived in the home and should have been able to corroborate some of her testimony but they did not testify.
In contrast, is the case of Price v. Price, NO. 2008-CA-01802-COA (Decided November 10, 2009). In that case, James Price obtained a divorce on cruelty from Eula. He testified that the police were called the home three times. In one incident, Eula attacked him, kicked him in the buttocks, punched him in the back and tried to bite off his finger. Eula was also indicted on a charge of false pretenses. When Eula left the marital home, she discharged a fire extinguisher in the home, ruining James’ belongings. James’ 15 year old son from his first marriage corroborated James’ testimony. Based upon that corroboration, he was granted a divorce.
Witnesses to cruelty are a must. Unfortunately, this may mean that the children must be called as witnesses. Many people argue this burden of proof should be changed because it traps people in marriages that are unhealthy. The Court takes the position that it is the burden of the Legislature to change this.