On several occasions, this blog has discussed the difficulty that people have in proving a case of habitual and inhuman treatment. In short, one must prove conduct which endangers life, limb or health or that is so unnatural or infamous as to make the marriage revolting and render it impossible to remain in the marriage. Mere unkindness, rudeness or incompatibility will not support a divorce. Many times, the Courts have set the bar for cruelty quite high. Many times, divorces are denied for lack of “corroboration.”

In an interesting recent decision, the Court of Appeals appears to open the door for inquiry into the sexual conduct of the parties. This door has been somewhat opened in the past, but the decision of Jones v. Jones, NO. 2008-CA-00675-COA (Decided December 15, 2009) sheds light on this little-used avenue to divorce. In that case, the Court found that a combination of “criticisms, yelling, put-downs, gambling, lies, controlling behavior, and degrading sexual behavior reached a critical mass,” warranting divorce. Jones, Slip opinion, at 7. However, considerable emphasis seemed to be placed upon the wife’s complaint that her husband would not stop pestering her for sex...”no sex was never enough” and that if she did not have sex, he would punish her by withholding money, ignoring, yelling and creating a tense home environment. In short, the wife testified that she was “robbed of [her] dignity.” Id., at 11. In addition, the husband insisted on oral sex and continually pressured her for anal sex, which was “not something that [she] want[ed] to do.” Id., at 11-12. It should be noted that the wife testified to losing weight, feeling nauseous and losing hair.

The Jones case contains other allegations and there is corroboration of the allegations through the husband’s own treatment records. However, the case is instructive in its discussion of sexual abuse as a ground for divorce. First, the Court notes that “a single act of sexual abuse may be sufficient to support a divorce...” Id., at 14. The Court then surveyed other sexual behavior which could support a divorce:
  • Pererasty as discussed in Crutcher v. Crutcher, 38 So. 33 (1905)
  • Problems with impotence and husband dressing in woman’s clothing as discussed in Cherry v. Cherry, 593 So. 2d 13 (Miss 1991).
  • Engaging in unnatural sexual relations and then suggesting that they whip each other, as discussed in Stockton v. Stockton, 203 So. 2d 806 (Miss 1967)
All of the foregoing types of conduct were recognized as having caused “infamous indignity to the wife.” Id., at 19. The upshot of this line of cases is that attorneys should spend time detailing the sexual aspects of marriage in evaluating whether or not sufficient grounds exist for divorce.
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