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CAN BOTH PARTIES GET A DIVORCE ON FAULT GROUNDS? WHAT IF BOTH HAVE GROUNDS?

The question often arises, “Who will get the divorce if both parties are guilty of adultery?” Or, “I might have been guilty of adultery, but she was guilty of cruelty, so that’s why I committed adultery; who will get the divorce?” The answer is that a court cannot grant a divorce to both parties. The Judge must chose which person is the one to be awarded the divorce. How a Judge might decide that is up for grabs, based upon the facts of each case and the Judge.

This law was brought forward in the recent and intriguing case of Kimbrough v. Kimbrough, No. 2010-CA-01279-COA (Decided 2/28/12) In that case, each party sued the other for divorce based upon fault grounds. The Judge found that neither party had proved their grounds for relief, but granted a divorce to both based upon his perceived “mutual desertion” of each other. The intriguing aspect is that neither party had asked for a divorce on the ground of desertion.

The Court of Appeals reversed in a short opinion holding that only one party can be granted the divorce. The Court also found that the Court could not grant a divorce on a basis not pleaded by either party.

As an aside, one has to wonder why both parties appealed the granting of the divorce, when both parties wanted a divorce, and the Judge gave them a divorce, even though he had found that neither had proved their respective grounds?!