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).