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Fault-Based Divorce Laws in Mississippi
Grounds for a Fault Divorce in MS
In Mississippi, you can force your spouse to file for divorce if you have proof that they have committed certain acts, such as adultery or abuse. This is often referred to as a fault divorce or fault-based divorce. With this approach, your spouse need not agree to the divorce. You need only prove that your spouse has committed one of a number of certain acts that constitute valid grounds for divorce. In some cases, the best way to start the process is to file a fault-based divorce – even if you end up transitioning to an irreconcilable differences divorce and reach your own settlement agreement.
If you have grounds for divorce and want to discuss your options in getting started, an attorney can provide invaluable insight. You can even discuss alternatives, such as an irreconcilable differences divorce, or even reconciliation, depending on the situation and your goals and needs. Because Jackson attorney Mark Chinn has such extensive family law experience, he can offer truly helpful guidance. He will take the time to understand your unique situation so you can work together to take the right approach.
Most Common Grounds for Fault-Based Divorce
A suit on grounds is an option if you have proof of such grounds. Below are the most commonly used grounds for divorce in Mississippi:
Adultery means voluntary sexual intercourse on the part of the husband, with a woman other than his wife, or on the part of the wife, with a man other than her husband. But, the act must be knowingly and consciously done, Brooks v. Brooks, 652 So.2d 1113, 1119 (Miss. 1995), and proof of the following elements must be clear and convincing: (1) an adulterous inclination or an infatuation for a particular person of the opposite sex, and (2) a reasonable opportunity to satisfy that inclination. See Holden v. Holden, 680 So.2d 795, 798 (Miss. 1996); McAdory v. McAdory, 608 So.2d 695, 699-700 (Miss. 1992), appeal after remand, 628 So.2d 1388 (Miss. 1993); and Nix v. Nix, 176 So.2d 998 (Miss. App. 1999).
It is also of no consequence if the adulterous activity complained of occurs after the couple separates, or even if it is not the actual cause of the marital breakdown. Pucylowski v. Pucylowski, 741 So.2d 998 (Miss. 1999).
Habitual Cruel and Inhuman Treatment
The most common “fallback” ground for divorce is habitual cruel and inhuman treatment. In order to obtain a divorce on the grounds of cruelty, the evidence presented to prove cruel and inhuman treatment must be conduct so endangering to life, limb, or health, or creating a reasonable apprehension of danger, or the conduct must be so unnatural and infamous to you as to make the marital relation revolting. Habitual cruelty must be proven to rise above the level of mere unkindness, rudeness, or mere incompatibility, or want of affection. Ordinarily, one act of abuse will not be sufficient, but one act of physical violence may be. Generally, there must be proof of systematic or continuing behavior by the offending spouse. Obviously, this ground for divorce depends entirely upon the facts of each case. The Mississippi Supreme Court has recognized that something might be cruel to one person but not another, and it has clearly recognized mental abuse, but the proof must show that the victim’s very life or health was in danger because of their spouse’s conduct. This ground for divorce is the most difficult to prove, as there are often no other witnesses to the incidents of cruelty other than the spouses themselves.
Drunkenness is another potential ground for divorce in Mississippi. In these cases, the plaintiff must prove that the defendant frequently abused alcohol, that the marriage was negatively affected as a result, and that the alcohol abuse continued at the time of the trial. Turner v. Turner, 73 So. 3d 576, 583 (Miss. Ct. App. 2011). Evidence such as DUI arrests or convictions, job loss, and other proof may be used to prove drunkenness.
Desertion requires that a person abandon the marriage for at least one year and refuse to return to the marriage.
Habitual Use of Opium, Morphine, or Other Drugs
A person may obtain a divorce if their spouse engages in the habitual and excessive use of drugs. The use must be habitual and not occasional. In one case, the court considered a husband’s daily use of drugs over 4 years satisfied the requirement. It must be shown that the user is so addicted “that he cannot control his appetite for drugs.” The case would be assisted by proof of loss of friends, loss of control over their lives, loss of job, and similar adverse effects of drug abuse. The use of prescription drugs is not included unless there can be a clear demonstration of abuse or use beyond the prescription. A defense to the suit is proof of quitting drug use prior to the filing of the suit.
Sentenced to Jail for One Year
A person may obtain a divorce if their spouse is sentenced to jail for a period of one year or more.
Additional grounds may include natural impotency, insanity, pregnancy by another person at the time of the marriage, and incest.
How Fault Affects Alimony & Property Distribution
Fault grounds allow a party to force the other party to divorce. Beyond that, the importance of fault is not that great. Obtaining a divorce on fault grounds as opposed to agreeing to irreconcilable differences will most likely not result in any substantial financial benefit to you. In making a determination of equitable distribution of marital property, the judge will consider any proof presented on marital fault when making an award of alimony and property distribution. However, the appeals courts in this state have instructed trial courts not to punish spouses for marital misconduct in divorce actions.
Filing for Divorce when One Spouse is Pregnant
There is no waiting period after filing for a fault-based divorce in Mississippi, however the receiving spouse must be notified at least 30 days before the divorce hearing. If one spouse is pregnant at the time of filing, the court will postpone the divorce until after the child is born. This measure is taken to prevent complications relating to child support and custody issues.
Contact Chinn & Associates at (601) 202-5594 today for help with a fault divorce in Jackson or the surrounding areas in Mississippi.
Founder of Chinn & Associates, Mark A. Chinn is a seasoned Jackson, Mississippi family law attorney who has dedicated his career to helping clients through some of the most difficult times in their lives. He is dedicated to using his talent and experience to empower his clients to lead the lives they want to lead.Read More
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