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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 becomes 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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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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Mississippi Irreconcilable Differences Divorce

January 5, 2011,

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.

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