When I talk with clients about divorce, I have heard many say "I understand there is no alimony in Mississippi." Many of these people show up in my office seeking help with a divorce, and unfortunately, they are mistaken because alimony is still alive and well in Mississippi. In this regards, one of the most stressful issues that many of my clients face is the potential of having to pay alimony to their spouse in the event of a divorce. Many clients simply do not understand why they have to pay money to support a person to which they are no longer married. As a result, alimony is often both a confusing and frustrating issue in many divorce cases.
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I routinely deal with cases involving a spouse who wants a divorce because he or she learned that the other spouse cheated or committed some other type of marital misconduct. Often times, when a client hires me to help with a fault-based divorce, especially where the ground for divorce is adultery, one of the first questions I ask my client is: Did you forgive your spouse? A "yes" to this question can certainly complicate an otherwise clear-cut divorce. In Mississippi, forgiving--or condoning--a spouse's past marital transgressions may legally bar a complaining-spouse's right to a divorce. As a result, condonation is one of most often used defenses to fault-based divorce in Mississippi.
Condonation occurs when a spouse voluntarily forgives the other spouse for committing some sort of marital misconduct. Where a spouse forgives the other's misconduct, there is an unspoken promise that such misconduct will not recur. So even if the complaining-spouse condones or grants forgiveness for the other spouse's misconduct, such forgiveness is conditioned on the offending-spouse's continued good behavior. For example, if a spouse forgives the other for committing adultery, then the other spouse either continues the extramarital affair or commits adultery again, then the prior condonation or forgiveness for the first instance of adultery would likely be invalid. More so, it is important to note that condonation is most often used as a defense against divorce based on grounds of adultery whereby the offending-spouse claims that the complaining-spouse forgave him or her for an extramarital affair. However, the condonation defense is not limited to just adultery. For example, the Mississippi Court of Appeals in Smith held that the defendant's wife did not condone his excessive gambling habit simply by accompanying him to the casino where he regularly gambled. Smith v. Smith, 90 So. 3d 1259, 1266 (Miss. Ct. App. 2011).
In terms of divorce defenses under Mississippi law, "antenuptial knowledge" may simply be defined as a complaining-spouse's (the spouse filing for divorce) pre-marital knowledge of the defendant-spouse's pre-existing bad habits, condition, or other marital impediment that now is alleged to present a cause for divorce. For a defendant-spouse to rely on the defense of antenuptial knowledge, there must be evidence that the complaining-spouse was fully aware of the defendant's alleged pre-marital conduct before entering into the marriage, or evidence showing that the complaining-spouse had such reliable information that a reasonable person would have known about the defendant's particular pre-marital conduct, which is the alleged ground for divorce. See N. SHELTON HAND, MISSISSIPPI DIVORCE, ALIMONY, AND CHILD CUSTODY § 5:13 (2014). Thus, actual or constructive antenuptial knowledge of a defendant-spouse's impediment giving rise to the divorce is sufficient to establish a valid defense against the divorce in Mississippi.
Since 1959, there seems to be no significant case addressing the antenuptial knowledge defense by the Mississippi Supreme Court or Court of Appeals. The most notable case where the Mississippi Supreme Court directly and substantively addressed the antenuptial knowledge defense to divorce was in Kincaid v. Kincaid. In that case, the wife filed for divorce asserting that her husband was a habitual drunkard. Kincaid v. Kincaid, 42 So. 2d 108, 109 (Miss. 1949); see MS § 93-5-1 (5) (2014). Seeking to prevent the divorce, the husband in the case claimed that the wife knew or should have known of his habitual drunkenness before the marriage and therefore should not be able to complain about it now. Accordingly, the Mississippi Supreme Court explained that the crucial issue in the case was whether the husband sufficiently established that the wife knew or had good reason to know of the husband's habitual drunkenness at the time of, or before, the marriage. Id. In assessing Mississippi law, as one commentator has stated, the Kincaid court "suggested that premarital knowledge of  conditions such as habitual drunkenness, drug use, imprisonment or impotency may bar divorce." DEBORAH BELL, BELL ON MISSISSIPPI FAMILY LAW § 4.03 (2d. ed. 2011). Ultimately, the Kincaid court held that there was not sufficient evidence to establish the wife's antenuptial knowledge of the husband's habitual drunkenness in order to bar a divorce because "[a]t the most, she knew only that he was an occasional and moderate social drinker [, not] an habitual drunkard before marriage . . . ." Id. at 109-110.
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).
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.
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.
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.
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.
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(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)).
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.
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.
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.
In Mississippi there are two ways to get a divorce: (1) the Irreconcilable Differences (a/k/a "No Fault") divorce and, (2) a fault-based divorce. An Irreconcilable Differences divorce (Miss. Code. Ann. § 93-5-2) is proper only if both spouses agree to be divorced on this basis. In other words, a divorce in Mississippi is not available based on one party's claim that the marriage is irretrievably broken. Instead, both parties must consent to a divorce based on Irreconcilable Differences in Mississippi or no divorce may be entered. As long as both parties agree to a divorce based on Irreconcilable Differences, any remaining issues relating to property distribution and/or child custody/support terms may made part of a settlement agreement between the parties or be submitted to the court for decision.
The statutory waiting period for an Irreconcilable Differences divorce in Mississippi is sixty (60) days from the time the joint complaint is filed. Moreover, at least one of the parties must have resided in the State of Mississippi for at least six (6) months prior to the filing of the divorce.