Family Law Basics in Jackson, MS
There are two ways to divorce in Mississippi. The first is what we call a “grounds” divorce. For a divorce to occur this way, one party must have “grounds” for divorce. The most common grounds for divorce are adultery, cruelty, drunkenness and use of drugs. If a person has grounds, they can force the other person to divorce.
The second method of divorce is “irreconcilable differences.” For a divorce to occur on this basis, both parties must agree to a divorce and to a resolution of all issues between them.
Since a person cannot get a divorce unless there is agreement or grounds, situations arise where one party has control over the process. For example, if the woman is guilty of adultery and wants a divorce, but the man is not guilty of any grounds and is ambivalent about divorce, the man has a strong negotiation position from which he may extract a more favorable settlement from the woman in exchange for his agreement to divorce. One Supreme Court Judge called this, “divorce blackmail.” This type of situation is important to remember in divorce negotiations.
EXPLAINING THE WAYS TO DIVORCE
A. Divorce on Irreconcilable Differences
If both parties agree to a divorce on irreconcilable differences, there will be no need to present trial testimony on the issue of fault grounds in order to be granted a divorce, and the parties will have to agree on all issues. (There is also a procedure to submit to the court issues upon which you cannot agree.) Pursuing a divorce on this basis requires negotiation.
B. Divorce on Grounds
A suit on grounds is an option if you have proof of such grounds. This involves filing a lawsuit and starting the legal procedure, which we will discuss below.
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).
ii. 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 we present to prove cruel and inhuman treatment by Joe must be conduct so endangering to life, limb, or health or creating a reasonable apprehension of danger, or the conduct must be 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.
iii. Other grounds
Other less used grounds are desertion, which requires at least one year of refusal to return to the marriage; habitual drunkenness, and habitual use of opiates or other like drugs.
iv. The Impact of Fault Grounds
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 martial 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.
Also, please keep in mind that if one party attempts to obtain a divorce based upon fault, the other party has the right to file a “counterclaim” for divorce on fault grounds to obtain a divorce from you.