Condoning Marital Misconduct Could Bar Divorce in Mississippi

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).

Lastly, condonation is an “affirmative” defense in Mississippi. As with all affirmative defenses to divorce, under Rule 8(c) of the Mississippi Rules of Civil Procedure, a condonation defense must be specifically pled in the offending-spouse’s answer to the divorce complaint. If the offending-spouse fails to raise the condonation defense in its answer, then his or her right to raise the defense may be waived. Miss. R. Civ. P. 8(c); Ashburn v. Ashburn, 970 So. 2d 204, 213 (Miss. Ct. App. 2007).

In sum, there are three general elements for a valid condonation defense:

(1) the complaining-spouse must reasonably know of the martial wrong committed by the other spouse (so as to have condoned it);
(2) the condonation or forgiveness must be free and voluntary, and not given under duress, fraud or undue influence; and,
(3)the offending-spouse must maintain good behavior and not commit another marital offense.

If a defendant can satisfy these general elements and specifically pleads condonation in answering the divorce complaint, then condonation may bar the complaining-spouse’s right to a divorce in Mississippi.

Condonation is an important concept to be aware of whether a person is seeking a divorce or defending against divorce. Evidence of condonation can certainly be a viable defense to divorce. In any event, like all other divorce-related issues, it is very important to consult an experienced divorce attorney. As an experienced divorce and family law attorney, I can help you better understand how divorce works in Mississippi. 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.

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