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

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.

Recrimination is founded upon the idea that equal guilt or marital misconduct among spouses to a divorce bars a complaining-spouse’s right to a divorce. Recrimination occurs when both spouses are guilty of fault or there is evidence of both committing marital wrongs against the other–in other words, neither spouse has “clean hands.” Parker v. Parker, 519 So.2d 1232, 1235 (Miss. 1988). Until 1964, as a result of recrimination, because neither spouse could be deemed an “innocent” spouse, a complaining spouse was completely barred from receiving a divorce. However, today, under Mississippi law, “[i]f a complainant or cross-complainant in a divorce action shall prove grounds entitling him to a divorce, it shall not be mandatory on any chancellor to deny such party a divorce, even though the evidence might establish recrimination on the part of such complainant or cross-complainant.” MS ยง 93-5-3 (2014). Thus, even though a defendant-spouse establishes recrimination with sufficient evidence, the Chancellor is not required to deny a divorce in light of evidence of equal fault or “dirty hands” among the parties. Cherry v. Cherry, 593 So. 2d 13, 18 (Miss. 1991). More so, if both spouses are able to establish fault-based grounds for divorce, the Chancellor must assess and identify which spouse’s fault was greater in causing the parties’ separation and grant a divorce to the other “less-at-fault” spouse, if that spouse desires a divorce. Boutwell v. Boutwell, 829 So. 2d 1216, 1224 (Miss. 2002).

In the end, every spouse has the right to fight for his or her marriage and defend against divorce, and it is important that a defense is correctly prepared and executed. As with all divorce-related issues, it is imperative that a defendant-spouse enlist the help of an experienced divorce attorney. As an experienced divorce and family law attorney, I can help you defend against divorce. If you or a friend need professional assistance regarding a divorce or any other family matter, please contact the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.