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 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 often there are no other witnesses to the incidents of cruelty other than the spouses themselves.
In the recent case of Lee v Lee, No. 2013-CA-00609-COA (11/25/14) the court quoted the following standard for proving a divorce on drunkenness:
“A court may grant a divorce on the ground of habitual drunkenness if the plaintiff proves that: (1) the defendant frequently abused alcohol; (2) the alcohol abuse negatively affected the marriage; and (3) the alcohol abuse continued at the time of the trial.” Turner v. Turner, 73 So. 3d 576, 583 (Miss. Ct. App. 2011).
The court cited an earlier case where it was shown the defendant drank a case of beer each night. Another case found that drinking 4 or 5 beers a night did not constitute drunkenness.
In Lee, the proof was that:
- Chris drank 5 to six beers a day, which he denied
- Chris made negative and insulting comments while drunk
- Chris peed on her leg one night, which he denied
- Chris passed out a couple of times
The court affirmed the trial court decision to grant a divorce on drunkenness. Lawyers are typically looking for DUI’s, loss of job, and other proof.
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 like drug
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 life, loss of job, and similar adverse effects. the use of prescription drugs is not included unless their can be a clear demonstration of abuse or use beyond the prescription. A defense to the suit is proof of quitting the 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.