Fault Based Grounds for Divorce in Mississippi
Divorce can be one of the most painful and stressful experiences a person goes through in life. Many important decisions must be made-in a short period of time-that have the potential to impact the rest of your life, as well as the lives of your children. It is critical to avoid making hasty, misguided decisions when going through a divorce in Mississippi, especially when your children or property is involved. As an experienced family law attorney, I have seen first-hand the problems caused by a party making a heat-of-the-moment decision during a divorce. All too often, these problems could be avoided and possibly even resolved with the proper legal counsel. An experienced family law attorney can help you sort through the difficult decisions you must make and help protect your best interests, as well as the best interests of your children, throughout the divorce process. If you are in need of an experienced attorney to help you through a divorce or other family law matter, please feel free to contact me at 601.607.5055, or using the contact form on the right of this page.
A Mississippi “fault-based” or “contested” divorce alleges marital misconduct or some other type of improper conduct. In Mississippi, there are twelve (12) grounds for seeking a fault-based divorce, including:
(1) Natural Impotency - a spouse may obtain a divorce in Mississippi by proving the defendant is “naturally impotent”. Few cases in Mississippi discuss this ground for divorce. However, cases from other jurisdictions suggest that impotency is an incurable ability to engage in sexual relations (possibly due to a physical condition or even a sexually transmitted disease), not the inability to procreate.
(2) Adultery - In Mississippi adultery is defined as “voluntary sexual intercourse of a married person with a person other than the offender’s spouse” One act of adultery is a ground for divorce. Adultery can be directly established in court by the spouse admitting to adultery, by the testimony of the paramour, or other direct evidence including audio and video recordings, testimony of friends, family, medical professionals, and/or private investigators, pictures, etc. However, adultery can also be established in Mississippi by clear and convincing circumstantial evidence showing: (a) a spouse’s generally adulterous nature, including infatuation with another person or a proclivity to adultery, and, (b) a reasonable opportunity to satisfy the infatuation or proclivity. Circumstantial evidence of adultery could include: overnight stays with a suspected paramour, giving or receiving gifts to a paramour, physical affection or admissions of affection towards another, frequent phone calls, text messages, cards, or other correspondence to the suspected paramour, and other secretive behavior relating to the paramour.
Condonation is a defense available to a claim of adultery in Mississippi. Under the defense of condonation, a spouse who resumes a sexual relationship after learning of the other’s adulterous affair has forgiven, or “condoned” the adultery. Condonation may bar the divorce based on adultery.
(3) Incarceration - Divorce may be granted to an individual whose spouse is incarcerated or even sentenced to a penitentiary without pardon prior to being incarcerated.
(4) Desertion - In Mississippi, a spouse’s “wilful, continued and obstinate desertion” for a period of a year is grounds for a divorce. Miss Code Ann. § 93-5-1 (2004). This claim focuses on one spouse’s abandonment of the marriage without the other’s consent and, to prove this ground, the plaintiff must show: (a) the spouse was absent for a year or more; (b) the spouse intended to leave or abandon the marriage; and, (c) the plaintiff did not consent to the separation.
Under this ground for divorce, the desertion must be continuous for a year or more. In other words, if the spouses temporarily reconcile, then the period before and after the reconciliation may not be combined to reach the one year period. However, a short resumption of sexual intimacy during the marriage may not interrupt the one year period if there is no intent to actually return to the marital relationship.
The spouse must also intend to leave the marriage. For example, absence for a legitimate reason, i.e. to find work or to take care of a sick parent, is not desertion if the spouse plans to return to his or her family. However, should the spouse decide not to return or the reason prove to be fabrication, the absence may constitute desertion.
Finally, the spouse claiming desertion in Mississippi must not have consented to the separation. Separation by agreement or consent is not desertion. Instead, the evidence supporting the desertion claim must show that one spouse intended to abandon the marriage while the other spouse stood ready and willing to reconcile or continue the marriage.
A good faith (unqualified) offer of reconciliation within the one year period made by the deserter not only stops the period of desertion, but also may even give the spouse offering the return grounds for a desertion claim if the offer is unjustifiably refused for a one year period. An innocent spouse receiving a good faith offer of reconciliation gets a reasonable amount of time to consider and respond any offer and the deserter must respond to any concerns.
The doctrine of “constructive desertion” is also available to an individual in Mississippi in extreme cases where a spouse abandons a home to escape abusive conduct. In this situation, the spouse leaving the home to avoid violent or otherwise abusive conduct making the marriage unendurable or dangerous to health or safety may qualify as the deserted rather than the deserting party. Moreover, the refusal to have sexual relations with a spouse may constitute constructive desertion if the refusal continues for a lengthy duration.