Mississippi doesn’t allow one spouse to obtain a no-fault divorce without the other’s agreement. If your spouse won’t consent to an irreconcilable differences divorce, you’ll need to prove one of the statutory fault grounds Mississippi law recognizes before a court can end the marriage.
Mississippi and South Dakota are the only states without unilateral no-fault divorce. Under Miss. Code Ann. 93-5-1, the spouse filing a contested divorce bears the burden of proving an applicable fault ground when the other spouse contests the case. Filing on fault can also start the legal process even if the parties later reach an irreconcilable differences settlement.
Divorce cases for Jackson residents are generally filed in Hinds County Chancery Court. Our attorneys can help you assess your facts, the available evidence, and whether a fault divorce or negotiated resolution best fits your goals.
Grounds for a Fault Divorce in Mississippi
Mississippi law lists 12 fault-based grounds for divorce. Some involve conduct during the marriage: adultery, desertion, habitual drunkenness, habitual drug use, or habitual cruel and inhuman treatment. Others concern circumstances that existed at the time of marriage or major events that affect the marriage.
Proving fault isn’t simply a matter of describing what happened. The evidence must satisfy the legal requirements for the specific ground, and a contested case may involve discovery, witness testimony, records, and a hearing before a chancellor.
Adultery
Adultery means voluntary sexual intercourse by a married person with someone other than their spouse. The act must be knowing and conscious. Mississippi courts permit proof through direct evidence (such as an admission or witness testimony) or through circumstantial evidence showing both an adulterous inclination and a reasonable opportunity to act on it. The proof must be clear and convincing. Brooks v. Brooks, 652 So.2d 1113, 1119 (Miss. 1995); Holden v. Holden, 680 So.2d 795, 798 (Miss. 1996).
Adulterous conduct can support a divorce even if it occurred after the spouses separated or wasn’t the immediate cause of the marriage’s breakdown. Pucylowski v. Pucylowski, 741 So.2d 998 (Miss. 1999). A finding of adultery can also carry financial consequences: Mississippi case law may bar the guilty spouse from receiving alimony when that misconduct caused the divorce, absent unusual circumstances.
Habitual Cruel & Inhuman Treatment
Habitual cruel and inhuman treatment is conduct that endangers a spouse’s life, limb, or health, creates a reasonable fear of danger, or is so unnatural and infamous that it makes the marital relationship revolting. It must rise above ordinary incompatibility, rudeness, lack of affection, or isolated unkindness. The frequency, severity, and effect on the injured spouse all matter.
In 2017, Senate Bill 2680 amended Miss. Code Ann. 93-5-1, effective July 31, 2017, to expressly include spousal domestic abuse within this ground. The amendment covers physical harm or threats of harm, emotional or verbal abuse, forced isolation, sexual extortion or abuse, and stalking. In a domestic abuse case, reliable testimony from one credible witness (including the injured spouse) can be sufficient without the additional corroboration generally required in fault divorce cases.
Drunkenness
To establish habitual drunkenness as a ground for divorce, the filing spouse must show that the other spouse frequently abused alcohol, that the marriage suffered as a result, and that the abuse was ongoing at the time of trial. Turner v. Turner, 73 So. 3d 576, 583 (Miss. Ct. App. 2011). DUI arrests or convictions, job loss, and similar records can all support this claim.
Desertion
Desertion requires more than living separately. The filing spouse must show that the other spouse left or remained absent for at least one continuous year, intended to abandon the marriage, and did so without the filing spouse’s consent. A spouse may also assert constructive desertion when the other spouse’s conduct effectively forced them to leave the marital home.
Other Grounds Under Mississippi Law
Miss. Code Ann. 93-5-1 also recognizes several less frequently raised grounds. Whether any applies depends on the specific facts and available proof.
- Natural Impotency: An incurable inability to consummate the marriage that existed at the time of the wedding and was unknown to the complaining spouse.
- Penitentiary Sentence: A spouse’s sentence to the penitentiary can provide a ground for divorce if the statutory requirements are met.
- Habitual Drug Use: Habitual use of opium, morphine, or a similar drug may serve as a ground when the evidence meets the statutory standard.
- Mental Illness or Intellectual Disability at Marriage: A condition that existed when the marriage was entered into and was unknown to the complaining spouse.
- Pregnancy by Another: A wife’s pregnancy by someone other than her husband at the time of marriage, when the husband didn’t know of the pregnancy.
- Incest: A marriage between parties related within degrees of kindred prohibited by Mississippi law.
- Incurable Mental Illness: Generally requires confinement in an institution for at least three years immediately preceding the filing and medical testimony from qualified physicians that the condition is incurable.
- Bigamy: A purported marriage entered while one spouse was already married to another living person.
Corroborating Evidence in a Mississippi Fault Divorce
In most contested fault cases, your testimony alone won’t be enough. Corroborating evidence supports the accusation and is consistent with the primary proof. It doesn’t have to establish the ground independently, but it should give the court reason to credit the claim.
Evidence that may corroborate fault includes:
- Witness Testimony: Statements from people who observed relevant conduct or its effects.
- Medical and Police Records: Documentation of injuries, treatment, reports, or criminal incidents.
- Electronic Communications: Text messages, emails, and photographs that are properly authenticated.
- Financial Records: Account activity, receipts, or other records that help establish the alleged conduct.
- Arrest and Court Records: DUI charges, convictions, and related records that may support a drunkenness claim.
The 2017 domestic abuse amendment is a notable exception. In cases involving spousal domestic abuse, the reliable testimony of a single credible witness (including the injured spouse) may establish the ground without separate corroborating evidence.
How Fault Affects Alimony & Property Division
Fault can shape financial outcomes, but it doesn’t automatically decide them. As discussed above, adultery can bar the guilty spouse from receiving alimony under Mississippi case law when the adultery caused the divorce. For other misconduct, fault is one factor a chancellor may weigh when considering alimony, but only one.
Property division follows the equitable distribution framework from Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994). Equitable distribution means the court divides marital property fairly, which isn’t always an equal split. Marital fault may be relevant to that analysis, but Mississippi courts have been clear that property division shouldn’t function as punishment for misconduct.
Two additional statutes are worth knowing. Miss. Code Ann. 93-5-3 provides that recrimination (meaning both spouses committed marital fault) doesn’t require the court to deny a divorce. Under Miss. Code Ann. 93-5-4, a spouse’s decision to stay in the marital home isn’t, by itself, a barrier to seeking a divorce.
Fault Divorce vs. Irreconcilable Differences: What to Consider
An irreconcilable differences divorce under Miss. Code Ann. 93-5-2 requires both spouses to consent. A fault divorce can proceed without that agreement, provided the filing spouse proves a statutory ground. For a spouse whose partner simply refuses to cooperate, that distinction is often what makes moving forward possible at all.
A contested fault divorce can take six to 18 months or longer, depending on the issues involved, the need for discovery, and the Hinds County Chancery Court docket. It will likely require more detailed proof and place private conduct into court filings and testimony. Even so, filing on fault may be necessary to start a case, preserve an alimony position, or address adultery and other serious misconduct.
Pregnancy During a Divorce
If one spouse is pregnant when the case is filed, Mississippi courts typically postpone finalizing the divorce until after the child is born. That allows the court to address parentage, child custody, and child support with the information it needs.
Frequently Asked Questions
Can I Get Divorced in Mississippi if My Spouse Refuses?
Yes. If you prove at least one statutory fault ground under Miss. Code Ann. 93-5-1, the court can grant a divorce without your spouse’s consent. The evidence must meet the legal requirements for the specific ground you assert.
Does Fault Affect Property Division in Mississippi?
Fault can be one factor in the equitable distribution analysis under Ferguson v. Ferguson, but it isn’t the sole or primary driver of how property is divided. Courts won’t divide marital assets simply to punish one spouse.
How Long Does a Fault Divorce Take in Mississippi?
Contested fault cases commonly take six to 18 months or more. The timeline depends on the complexity of the issues, how much evidence must be gathered, whether the parties reach any agreements, and the court’s schedule.
Why Work with Our Jackson Fault Divorce Attorneys
Fault divorce cases demand careful preparation because the legal ground and the evidence must align. At Chinn & Associates, PC, we prepare detailed trial plans, conduct thorough legal research, and draft orders in-house based on each client’s goals. We serve families in Hinds, Madison, and Rankin Counties from our Jackson office and offer a transparent flat-fee structure so there are no surprises.
Founding attorney Mark Chinn has more than 40 years of family law experience in Mississippi. He was recognized as Lawyer of the Year in Family Law in Mississippi for 2017 by Best Lawyers of America and received the 2026 Lifetime Achievement Award from the Mississippi Bar. Chinn & Associates, PC also holds a 5.0 AV Preeminent rating with Martindale-Hubbell®.
If you want to understand whether your circumstances qualify under Mississippi’s fault divorce grounds, contact our Mississippi divorce attorneys at (601) 202-5594 to discuss your situation.