DIVORCE DEFENSES

A question that we are frequently asked concerns the defenses that are available if you or your spouse wants to contest a divorce proceeding. The following is a brief summary of the most commonly used defenses to complaint for divorce.

Knowledge of Condition at the Time of Marriage

Premarital knowledge of a spouse’s condition may act as bar to divorce. For example, knowledge of premarital pregnancy or mental illness will act as a bar to a divorce based on those grounds. Premarital knowledge may also act as a bar in cases involving drunkenness, drug use, imprisonment, or impotency.

Ratification

When a spouse discovers the existence of a statutory ground for divorce, a divorce must be pursued within a reasonable amount of time. If the spouse fails to act within a reasonable amount of time, the spouse may be found to have ratified or accepted of the condition or misconduct. McIntosh v. McIntosh, 117 So. 352, 352 (Miss. 1928)(finding that husband was barred from divorcing on these grounds after finding out wife had mental illness shortly after marriage, but chose to remain with her through twenty years of marriage).

Mental Illness

Mental illness of a spouse condition may act as bar to divorce. When the divorce is based on the grounds of desertion and habitual, cruel and inhuman treatment, mental illness has been found to be a bar to divorce. Mental illness may also act as a bar in cases involving adultery. Walker v. Walker, 105 So. 753, 756 (Miss. 1925)(finding that wife could not be found guilty of habitual, cruel and inhuman treatment, mental illness because her actions were the result of insanity).

Reformation

When a divorce is sought on the basis of habitual drunkenness and habitual drug use, reformation is a defense. The defendant must prove that he/she has reformed and discontinued the habit.

Forgiveness

Forgiveness or condonation may be a defense for divorce. Forgiveness can be direct or implied. Forgiveness is available as a defense to a divorce based on adultery. This often occurs when when the spouses continue living together after the adultery is discovered. Fulton v. Fulton, 918 So. 2d 877, 881 (Miss. Ct. App. 2006)(denying divorce based on defense of condonation where wife ended her affair, admitted existence of affair to her husband and husband and wife resumed sexual relations for at least eight months).

Connivance

Consenting to another spouse’s wrongful conduct is connivance and is a defense to divorce. In other words a spouse who fails to object to wrongdoing has not been wronged. Although this defense is available, it has not been successful in Mississippi on the appellate level.

Contact Us

Our attorneys are have experience handling divorce cases for clients across Mississippi. Contact us online or call our office at 601-957-3101 to discuss the specifics of your situation.