A Way Out: Habitual Cruel and Inhuman Treatment as Grounds for Divorce in Mississippi

August 28, 2014,

When a client seeks my counsel about divorce in Mississippi and I ask them why he or she wants a divorce, in several cases, the response is surprisingly consistent: "We argue all the time" or "He or she is mean and rude to me." During the first conversation I have with these clients I typically explain that habitual cruel and inhuman treatment is a ground for a divorce in Mississippi. Undoubtedly, a spouse's cruel, demeaning conduct can place a significant strain on a marriage. Marriage does not require a spouse to endure the physical or emotional torture resulting from a spouse's habitual cruel and inhuman conduct. Like I tell many of my clients, Mississippi law may provide an innocent spouse a way out.

As mentioned in an earlier post, habitual cruel and inhuman treatment is a ground for contested, fault-based divorce in Mississippi. Like all other fault-based divorce grounds, habitual cruel and inhuman treatment must be alleged with specificity, corroborated by sufficient evidence, and proven by a preponderance of the evidence. Shavers v. Shavers, 982 So. 2d 397, 403 (Miss. 2008); Daigle v. Daigle, 626 So. 2d 140, 144 (Miss. 1993). The Mississippi Supreme Court has explained that habitual cruel and inhuman treatment exists only where there is a

continuous course of conduct on the part of the offending spouse which was so unkind, unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb or health, and further, such conduct must be habitual, that is, done often enough or so continuously that it may reasonably be said to be a permanent condition.
Holladay v. Holladay, 776 So. 2d 662, 676 (Miss. 2000) (citing Robison v. Robison, 722 So. 2d 601, 603 (Miss. 1998)). And to be clear, evidence of physical violence or threat of physical violence is not necessary, but is sufficient, to prove habitual cruel and inhuman treatment. Bodne v. King, 835 So. 2d 52, 58 (Miss. 2003).

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Equal Fault: Recrimination as a Defense Against Fault-Based Divorce

August 25, 2014,

One of the things that I have learned from my experience as a divorce attorney in Mississippi is that divorce is defendable. Some clients that retain my services are still in love with their spouse and genuinely want their marriage to work out and do not want a divorce, and they are willing to "fight" for their marriage or defend against a divorce. When addressing the concerns of the clients that don't want a divorce, I generally inform them that there are several ways to legally defend against divorce because, in essence, divorce is nothing more than a lawsuit. And like any lawsuit, there are defenses available to the defendant-spouse in a divorce action in Mississippi.

It is important to remember that the spouse seeking a divorce bears the burden alleging certain marital misconduct committed by the defendant-spouse and proving any alleged grounds for divorce with sufficient evidence. Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (Miss. 2002). But, the defendant-spouse must specifically raise any and all affirmative defenses available in answering the divorce complaint. One of the most commonly raised defenses to fault-based divorce in Mississippi is recrimination.

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Equitable Distribution & Property Division in Mississippi

August 12, 2014,

Along with custody disputes, the division of marital property is often a source of contention for many couples seeking divorce. Depending on the duration of the marriage, the amount of property acquired will fluctuate. But generally, the longer the marriage, the more property or "stuff" is acquired. One of the most common questions I get when a client comes to me seeking a divorce is: "What's going to happen with all my stuff?" The simple answer is whatever is classified as marital property will be "equitably" divided, while non-marital property is treated as separate property belonging to the titled spouse.

Since 1994, in divorce cases, Mississippi chancery courts have applied the doctrine of equitable distribution when dividing marital property. See Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994). Thus, when it comes to property division, Mississippi is not a "community-property" state whereby all of the divorcing spouses' assets, regardless of whether they were acquired during the marriage or not, are divided equally (50/50) upon divorce. Carter v. Carter, 98 So. 3d 1109, 1113 (Miss. Ct. App. 2012). Instead, Mississippi is what is called an "equitable distribution" state.

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The Two Paths of Divorce in Mississippi

August 5, 2014,

Over the past decade, I have assisted hundreds of people with divorce and divorce-related issues in Mississippi. As we have briefly discussed in previous posts, there are two ways to obtain a divorce in the State of Mississippi: (1) an Irreconcilable Differences Divorce ("ID Divorce") and (2) a contested or "Fault Based" divorce. While divorce is never without stress and, honestly, there really is no "easy" way to obtain a divorce in Mississippi, an ID Divorce, also known as "agreed" or no-fault divorce, may be considered the "easier" way to obtain a divorce here in this State.

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Contested Divorce in Mississippi

A contested divorce is what most people think of when they hear the term "divorce." In this type of divorce, one or both of the parties allege that the other spouse committed some type of marital "misconduct" during the marriage that rises to the level of a "fault" ground for divorce. Since 1932, there have been twelve (12) grounds for divorce in Mississippi, with the most commonly used ones including Adultery, Habitual Cruel and Inhuman Treatment, Habitual Drunkenness, Habitual Drug Use, and Desertion. When a party proves his or her ground for divorce, the party may be granted a divorce by the court even if there is no agreement between spouses to be divorced. However, a contested divorce in Mississippi still maintains strict requirements of proof, corroboration, and defenses.

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Simply a Piece of a Larger Pie: The Weight of Adultery in Child Custody Determinations

July 31, 2014,

If you are involved in a child custody dispute, it is important to be aware of what Mississippi courts look at when making custody determinations. One important question that often surfaces is whether adultery can disqualify a parent from obtaining custody. Adultery is a factor that can play a part in child custody determinations, but it is not necessarily the deciding factor; and the extent to which adultery affects a custody determination depends on the circumstances. Most importantly, in a child custody dispute between divorcing parents, Mississippi courts consistently award custody of the child (or children) to the parent that will better serve the "best interests and welfare" of the child. This "best interests of the child" standard serves as a guiding light for the courts in all custody cases in Mississippi. Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996) (citing Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994)).

Courts will usually first look at several legal presumptions that have been developed over the years to further the "best interests of the child" standard. Such presumptions include the presumption against a violent parent having custody of the child, or the presumption that natural parents should be favored over an adoptive parent. Beyond these legal presumptions, courts will look at the often-used Albright factors, named after a 1983 Mississippi case. See Albright v. Albright, 437 So. 2d 1003 (Miss. 1983). A brief overview of these Albright factors can be found here.

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Shackin' Up & The Legal Effects of Cohabitation in Mississippi

July 29, 2014,

Cohabitation, or the act of an unmarried couple living together, has become a prevalent social trend over the last 40 years. In fact, today, cohabitation has become a precursor to marriage. Many people decided to "test the waters" before marriage, and cohabitation is probably the most frequent method of doing so. In some ways, the saying that "you do not really know someone until you live with them" rings more true now than ever. But, in Mississippi, there are both criminal and civil legal effects of cohabitation that everyone should be aware of.

Criminal Cohabitation

It goes without saying, but Mississippi--being positioned in the Bible Belt of the United States--maintains a strong moral code and promotes family values. And believe it or not, cohabiting with another person is technically illegal in Mississippi. But fear not, the Mississippi Supreme Court has recognized that the anti-cohabitation statute is ignored with great frequency and criminal cohabitation virtually goes unpunished today. Davis v. Davis, 643 So. 2d 931, 935 (Miss.1994). Nevertheless, cohabitation is still considered a "crime against public morals and decency." Id.

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Gone with the Wind: Desertion and Divorce in Mississippi

July 24, 2014,

Marriage is a beautiful concept that many people are willing to embrace. But, unfortunately, the struggles of marriage become a concept that some people realize that they cannot, or will not, endure. When marriage gets tough, some spouses initiate their "fight" receptors and seek to endure the struggles while others seek "flight" from the marriage. Fleeing marriage and a spouse is not uncommon, and in Mississippi, desertion--or abandonment by one spouse-- may be a ground for divorce.

Under Mississippi law, "[w]illful, continued and obstinate desertion for the space of one (1) year" is grounds for divorce. MS § 93-5-1 (2014). In other words, a spouse's intentional and continued abandonment of the other (innocent) spouse for one year or longer, without interruption by reconciliation, constitutes desertion. But, if the innocent spouse "provok[ed] the defendant [offending spouse] into the acts which constitute the alleged ground[ ] for divorce," then a divorce will not be granted. Brown v. Brown, 2012-CA-00672-COA (Miss. Ct. App. Dec. 3, 2013), reh'g denied (Apr. 15, 2014) (citing Ammons v. Ammons, 144 Miss. 314, 318, 109 So. 795, 795 (1926)). Thus, the alleged offending spouse "may defend against a claim of desertion by 'set[ting] up any misconduct of [the] plaintiff which justified the separation[.]'" Id. Further, to be clear, "desertion is an act of the offending spouse in relation to the marital status and not the place where the parties reside or their domicile." N. SHELTON HAND, MISSISSIPPI DIVORCE, ALIMONY, AND CHILD CUSTODY § 4:9 (2013). Accordingly, desertion can occur even if the offending spouse remains within the marital home but is intentionally detached from the other spouse, including physical and emotional detachment.

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Sipping the Syrup Too Much: Habitual Drunkenness and Divorce in Mississippi

July 22, 2014,

Here in Mississippi, there is nothing like watching a good football game and drinking a cold beer with friends and family. Recreational drinking--and football of course--is a stapled pastime in our country. But for some, the pastime of alcohol consumption can become a serious problem. Just like a drug addiction, alcohol abuse can have a substantial negative impact on personal relationships, including marriages. In Mississippi, habitual drunkenness is one of twelve fault-based grounds for divorce. MS § 93-5-1 (2014).

Habitual drunkenness is a rarely used ground for divorce, and there is limited case law on what exactly constitutes "habitual drunkenness." Nevertheless, to succeed on a habitual drunkenness claim, a spouse must "prove that the defendant was habitually, or frequently, drunk, that the drinking adversely affected the marriage, and the habit continued at the divorce trial." BELL, BELL ON MISSISSIPPI FAMILY LAW § 4.02[6](2010) (analogizing habitual drunkenness grounds to habitual drug use grounds); see Ladner v. Ladner, 436 So. 2d 1366, 1375 (Miss. 1983) (daily use over four years was sufficient frequency to show abuse), and Smithson v. Smithson, 74 So. 149, 151 (Miss. 1917) (use must be ongoing at time of trial)).

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How High: Marijuana Use as Grounds for Divorce in Mississippi

July 17, 2014,

Habitual and excessive drug use--including excessive marijuana use--is one of twelve grounds for fault-based divorce in Mississippi. Under Mississippi law, "[d]ivorces from the bonds of matrimony may be decreed to the injured party for . . . [h]abitual and excessive use of opium, morphine or other like drug." MS § 93-5-1 (2014). A person seeking a divorce based on a spouse's habitual and excessive drug use must show that their spouse's use of drugs is (1) habitual and frequent, (2) excessive and uncontrollable, and (3) was of morphine, opium or drugs with the similar effect as morphine or opium. Lawson v. Lawson, 821 So. 2d 142, 145 (Miss. Ct. App. 2002). All three of these elements must be shown for a Chancellor to grant a divorce. In order to show "habitual drug use," a person must show that their spouse customarily and frequently used drugs; one time, or occasional, drug use is not sufficient. Ladner v. Ladner, 436 So. 2d 1366, 1374 (Miss. 1983). Essentially, the spouse accused of drug use must be characterized as a drug abuser, and "must be so addicted to the use of drugs that he cannot control his appetite for drugs whenever the opportunity to obtain drugs is present." Id.

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Reunited and It Feels So Good: The Magic of Un-Divorce in Mississippi

July 15, 2014,

Have you ever thought about un-divorcing or re-marrying your divorced spouse? For many folks, the answer is typically a stern "absolutely not," but for some, the answer could be an optimistic "maybe" because love is a strange creature that can be rekindled even after divorce. Perhaps the time apart from a divorced former spouse gives a person time to cool off, reflect on the marriage, and even develop or re-develop a passionate fondness and appreciation for their former spouse. A perceptive account of such rekindled romance may be seen in The Parent Trap (1999), a remake of a timeless Disney movie about how twin sisters on opposite sides of the globe scheme to reunite their divorced parents by switching places. In short, aside from Disney's portrayal of rekindled love, it is not inconceivable for divorced persons to reconcile and want to re-marry one another.

Mississippi law provides a mechanism for divorced former spouses to reunite and "re-marry" without all of the formalities of another marriage. Under Mississippi law, a divorce may be revoked--meaning that a divorce may be annulled or set aside as if it never happened. MS § 95-5-31 (2014). Divorce revocation, or as some have termed it "undivorce," is a rarely used tool and many people are unaware that it is even an option. But, like most legal mechanisms, there is a strict procedure that must be followed in order to revoke a divorce in Mississippi.

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Marriage Planning & the Mississippi Prenuptial Agreement

July 11, 2014,

Marriage is a beautiful thing. It signifies the matrimonial bond and lifelong commitment that two persons are willingly giving themselves to one another. But, marriage can also be an awkward experience, especially for those couples contemplating a prenuptial agreement ("prenupt") before the big day. The awkwardness surrounding prenupts can be uncomfortable and foster misconceptions about them. One of the biggest myths about prenupts is that people who want them do not truly love or trust their future spouse to be. A person's interest in a prenuptial agreement, by default, does not necessarily indicate one's uncertainty regarding the marriage, or make the commitment to marry another any less genuine. In our society, it is in our best interests to plan ahead, and that is nothing more than what a prenupt is meant to do. And given the high divorce rate in our country, planning ahead is not ill-advised.

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A prenuptial agreement, also known as an antenuptual agreement, is a contractual agreement executed in contemplation of (before) marriage, which often undertakes to affect spouses' rights and obligations during the marriage, as well as on its termination by divorce or death of a spouse. Prenupts may vary in terms of simplicity and complexity. As a result, prenupts may contain a vast array of provisions that govern many different aspects of the marriage and/or a future divorce. The most recognizable prenupt provision is the infamous adultery provision that provides legal repercussions for a spouse's adulterous activity during the marriage. Basically, whatever is legally permissible to agree upon and does not violate some inherent Mississippi public policy may be included in a prenupt, including agreements in anticipation of divorce such as agreements regarding property division.

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Common Law Marriage in Mississippi

January 18, 2012,

Most people may be familiar with the term "common law marriage." Common law marriage was recognized in Mississippi up until 1956. To establish a common law marriage, a man and woman would live together, share property, and generally consider themselves husband and wife. The policy regarding common law marriage was changed by statute, and Mississippi law now requires a valid license for all marriages.

Since common law marriage is no longer recognized in Mississippi, issues may arise when a couple has lived together without the benefit of marriage and then decide to go their separate ways. Such issues may include division of property or the award of child custody. Other problems may arise if either the man or woman dies without a valid will. The survivor may have difficulty proving that he or she was intended to inherit from the deceased partner in the relationship.

The custody and support of children born to unmarried couples is routinely addressed by Chancery courts in Mississippi. However, the law in Mississippi has, until recently, been fairly clear that common law marriages will not be recognized and that upon a separation between an unmarried couple, there could be no legal division of assets accumulated during the relationship. In Davis v. Davis, 643 So. 2d 931 (Miss. 1995), for example, the Mississippi Supreme Court held that where a man and woman had lived together for thirteen years without being married, the woman was not entitled to share in the assets accumulated by her companion during their relationship.

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Grandparent Visitation Rights in Mississippi

January 18, 2012,

If you have a family member who has gone through a divorce or a custody dispute, you know that these types of cases can affect more than just the two individuals in the relationship. When children are involved in a divorce or custody matter in Mississippi, a realm of issues may arise. As a parent of one of the parties involved in this type of case, you may be wondering what rights you have to maintain your relationship with your grandchildren. The goal of the courts in addressing issues related to children is to provide for the best interest of each child. In Mississippi, grandparent visitation can be awarded by any court that has the authority to decide child custody matters. Most commonly, child custody matters are decided in Chancery courts.

Have you recently been denied access to visit with your grandchildren? If so, there may be a solution. There are several situations in Mississippi where grandparents may seek visitation. For example, if your child did not receive custody of his/her children or if your child's parental rights have been terminated, you may seek visitation with your grandchildren in the court that issued the divorce or custody decree. On the other hand, if your child has died, leaving your grandchildren in the custody of the other parent or another relative, you may seek visitation in the county where your grandchild lives.

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Sibling Custody: Stay Together or Separate?

January 18, 2012,

Custody disputes in Misssippi are never easy. Two parents are put into the untenable position of being forced to battle against each other for the right to keep and care for a child that earlier belonged to both of them. These disputes are complicated even further when, instead of just one child being at issue, there are two, three, or more brothers and sisters whose well-being are at stake. Suddenly, the court may be forced to consider whether siblings should go to one parent or be divided between the parents.

The Mississippi Supreme Court has reiterated time and time again that, in custody disputes involving multiple children, courts should strive to keep the family unit together. But the custody analysis does not change in multiple-child households. In every child custody dispute in Mississippi - even those involving more than one child - the court will follow the guidepost that custody should be awarded to the parent best able to serve the "best interests and welfare of the child."

In making this "best interest" determination, Mississippi courts have consistently and explicitly used what are called the Albright factors, so named after the 1983 case in which they were first outlined. These factors are discussed in more detail in the custody section of my blog. Even in multiple-child custody disputes, Mississippi courts still will use these factors in determining which parent will best fulfill the "best interests" of the children. So a key question necessarily comes up when siblings are involved: Is it in the "best interests" of siblings that they stay together in a custody determination?

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Custody and Visitation in Mississippi upon Parental Deployment or Mobilization.

February 22, 2011,

In my practice I have had the opportunity to assist numerous military service members with issues relating to divorce, paternity, child custody and visitation. Many of the issues these service members confront relate to custody and/or visitation problems occurring while the individual is on temporary duty or under deployment or mobilization orders ("deployed" or "deployment"). A soldier on deployment should be focused on his/her duties, not worried about whether he/she will be able to speak with the child during deployment or worried about what will happen with the child at the end of deployment. In light of these concerns, Mississippi has enacted legislation to protect the parental rights of its deployed service members.

This law, Miss. Code Ann. 93-5-34, was passed for the purpose of swiftly and efficiently resolving matters involving custody and visitation when a parent is deployed and to facilitate continued communication between parents and their minor children when a parent is deployed. This statute protects our deployed service members in the following ways:

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