Legal Grounds for Divorce

Fault-Based Divorces

At Fault Divorce Grounds

Because it is public policy in Mississippi to preserve the marriage when possible, you must have legal grounds for a divorce absent an agreement to get divorced.

To obtain a fault based divorce, you must be able to prove one or more of the legal grounds. In order to prove your case, you have to have clear and convincing evidence establishing the specific fault grounds. The only exception to this high burden of proof is when the divorce is based on cruel and inhuman treatment. Cruel and inhumane treatment requires only proof by the preponderance of the evidence.

A contested divorce will be granted only after the trial judge has made a full inquiry into the facts and circumstances of each case.  If there is fault by both spouses in a contested proceeding, the divorce will be granted to the most innocent party.

There are basically 11 statutory fault based grounds for divorce under Mississippi law.

1.  Cruel and Inhuman Treatment

Habitual cruel and inhuman treatment is the most used ground for obtaining a fault-based divorce. This requires proof of conduct that endangers the other spouse and/or is unnatural and revolting, including conduct showing that continuation of the marriage would risk life, limb or health. The evidence must show that the wrongful conduct occurred over a period of time and was physical in nature or had an adverse physical effect on the spouse. This includes spousal domestic abuse.

An allegation of habitual cruelty and inhumane treatment is easier to prove when it is corroborated by independent evidence. Independent evidence can come from the testimony of family members, friends, physicians, as well as photographs, emails, text messages and medical records. Specific acts of conduct which can support a finding of habitual cruelty and inhumane treatment include physical violence, verbal abuse, behavior, and refusal to have sex.

2.  Adultery

An innocent spouse may obtain a divorce when his or her spouse has engaged in voluntary sexual intercourse outside of the marriage. This is the second most used ground in fault-based divorces. Evidence needed to support a finding of adultery can include admissions by the spouse, testimony of the paramour, taped recordings, video, photographs, gifts, physical affection, secretive behavior, letters, emails, and text messages.

3.  Drunkenness

Habitual drunkenness is a ground for divorce. The key to securing a divorce on this ground is proof of regularly occurring drunkenness that adversely affected the marriage. For example, in the case of Sproles v. Sproles, 782 So.2d 742, 745 (Miss.2001), the Mississippi Supreme Court granted a divorce for habitual drunkenness where husband was found to habitually drink a case of beer each night which caused him to be abusive.

4.  Habitual Drug Use

A spouse’s habitual and excessive use of opium, morphine or other like drug is a ground for divorce. The key to a divorce on this ground is proof that the spouse is addicted and is abusing drugs to such an extent that is is causing an adverse affect on the marriage. For example, in the case of Ladner v. Ladner, 436 So.2d 1366, 1375 (Miss. 1983), the Mississippi Supreme Court upheld a divorce for habitual drug use where husband was found to have used drugs daily over a four year time frame.

5.  Desertion

A spouse’s willful, continued and obstinate desertion for at least one year is a legal ground for divorce. The key to a divorce on this ground is proof of the spouse’s absence from the marital home with the intent to abandon the marriage and a the lack of consent to the abandonment. Any intervening reconciliation may start the clock over. For example, in the case of Gaillard v. Gaillard, 23 Miss. 152, 153 (1851), the Mississippi Supreme Court found that a 10 day reconciliation period interrupted the desertion and accordingly divorce was denied.

6.  Impotency

A spouse may seek divorce by proving that his or her spouse is naturally impotent. The impotent spouse cannot seek divorce but may seek an annulment instead. In the case of Sarphie v. Sarphie, 177 So. 358, 358 (Miss. 1937), the Mississippi Supreme Court denied a divorce for impotency after finding that wife was not impotent but instead suffered from condition that made sexual intercourse painful.

7.  Mental Illness

Mental illness is a basis for divorce in Mississippi. However, premarital knowledge of such illness or retardation is a bar to divorce. In the case of McIntosh v. McIntosh, 117 So. 352, 352 (Miss. 1928), the Mississippi Supreme Court found that a divorce was not appropriate after finding out wife had mental illness shortly after marriage, but chose to remain with her through twenty years of marriage. There are specific guidelines which protect the mentally ill spouse.

8.  Bigamy

Bigamy is a basis for divorce in Mississippi. Again, this ground is available to the innocent person who married a spouse who was married at the time of the “pretend marriage.” In the case of Harmon v. Harmon, 757 So.2d 305, 309 (Miss. Ct. App. 1999), the Mississippi Court of Appeals found that the second husband and not the first husband had the right to file for divorce for bigamy.

9.  Pregnancy at the Time of Marriage

Pregnancy of the wife by another person at the time of marriage is a basis for divorce in Mississippi. However, premarital knowledge of the pregnancy is a bar to divorce. In the case of Burdine v. Burdine, 112 So. 2d, 522, 523 (Miss.1959), the Mississippi Supreme Court denied a divorce where the husband knew wife was pregnant before marriage but believed he was the father of the child.

10.  Incest

If spouses are related in a degree by statute as incestuous, then either party may seek a divorce.

11.  Sentenced to any Penitentiary

A party whose spouse is sentenced to any penitentiary may be granted a divorce.

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