Habitual, Cruel, and Inhuman Treatment
The Catch-All Fault Ground for Divorce in Mississippi
(and a little history)
Before we talk about the current law as it relates to habitual, cruel, and inhuman treatment (“HC&IT”), it’s helpful to know a little history because this history permeates how HC&IT is used in Mississippi.
The Mississippi Legislature did not approve no-fault irreconcilable differences divorces until 1976. Before that, there simply was no way for incompatible spouses to get a divorce. Even if both parties agreed, the law forbade it.
The only option was for one spouse to falsely accuse the other of fault grounds and for the falsely accused spouse to agree that he or she was guilty. This was and still is illegal, and it is the reason that the Legislature even to this day requires spouses to swear under oath that are not falsely alleging fault grounds just to get a divorce.
Illegal or not, it was done. The fault ground most commonly alleged was HC&IT. This was a little before our time, but the story goes that in those days, sympathetic judges would not require much in the way of proof before they would grant a divorce on HC&IT. So, right or wrong, the common practice was to allege HC&IT when you didn’t have grounds for divorce and hope that the judge wouldn’t look too closely at your proof.
The practice of alleging HC&IT when you didn’t have grounds for divorce slowed when the irreconcilable differences statute was passed in 1976. But it did not stop altogether because in Mississippi you still cannot get a no-fault divorce without the other spouse’s consent, as we have discussed. So, for example, when a wife wanted a divorce but her husband would not agree to a no-fault divorce, and if he was not guilty of fault grounds, the common practice would be for the wife to allege HC&IT. The hope was that, at some point in the litigation process, the husband would agree to a divorce. Or perhaps his consent could be “purchased” by offering him a better deal than he would otherwise be entitled to in the settlement.
Of course, for poorer Mississippians with no assets to divide, the only concession that the wife could offer was to reduce the husband’s child support obligation if he would agree to a divorce.
A Little More History
Once the irreconcilable differences law was put on the books in 1976, the Mississippi Supreme Court instructed judges to be more careful about granting divorces on the ground of HC&IT. This is not to say that the Supreme Court had ever condoned the practice of giving people divorces without proof, but with the advent of no-fault divorce, the Court made clear that the days of getting an HC&IT divorce without the proper evidence were over.
There is still tremendous disagreement in Mississippi as to whether true no-fault divorce should be allowed. True no-fault divorce means one spouse can get a divorce without proving any fault grounds, even if the other spouse objects to the divorce. Mississippi has never had true no-fault divorce, not even now. Until true no-fault divorce becomes the law in Mississippi, a spouse wanting a divorce without the other spouse’s consent is still in the same position after the 1976 no-fault statute as before. This is why spouses often allege HC&IT as a “catch-all” when they can’t really prove fault grounds, even though the law forbids the practice.
Our firm emphatically refuses to do this, but we understand the strategic advantage that comes with alleging HC&IT even when you can’t prove it. Judges tend to avoid putting parties to the test as to whether they can or can’t prove HC&IT until the conclusion of the divorce, and a lot can be accomplished before that happens.
“My lawyer taught me basic housekeeping.
When you get a divorce, keep the house.”
The Cruel, Revolting, and Dangerous Marriage
HC&IT is actually two different fault grounds. You can prove HC&IT by proving that your marriage is revolting, or you can prove HC&IT by proving that your marriage is dangerous. It’s a little more complicated than that, so let’s look at each idea separately.
The Dangerous Marriage
If your spouse:
Caused, or attempted to cause, bodily injury to you; or
Attempted by physical menace to put you in fear of imminent serious bodily harm; or
Engaged in a pattern of threats, intimidation, emotional or verbal abuse, forced isolation, sexual abuse or sexual extortion, or stalking,
then you can get a divorce. The conduct has to be something worse than mere unkindness, rudeness, incompatibility, or want of affection. Physical menace can mean threatening you with a gun, knife, or even fists, so long as he created a reasonable fear that he was about to seriously injure you.
The primary evidence for most fault grounds has to be corroborated, as discussed above. But in a dangerous marriage, the evidence does not necessarily have to be corroborated if the victim/spouse provides the testimony of threats/abuse/violence.
The Revolting Marriage
You are also entitled to a divorce if your spouse engages in conduct “so unnatural and infamous as to make the marriage revolting” to you. At times, this has been treated as a catch-all for all-around bad conduct that is so egregious that the court decides that a spouse should not have to endure it. Here are a few examples of behaviors that the courts have found to be revolting:
Insisting on bizarre sexual behavior;
Refusing to live with the other spouse after the wedding;
Stealing from the other spouse;
Lying about the paternity of a child;
Refusing to bathe or clean oneself.
Revolting conduct, like beauty, is in the eye of the beholder. Clients who have not had the opportunity to litigate dozens of cases and read the published reports from hundreds of spouses claiming HC&IT may have a difficult time judging what a judge will or won’t considered to be sufficiently revolting to justify a divorce. Your lawyer should be able to give you a good sense of whether the facts in your case are sufficient.
The Cruel Marriage
A combination of offensive incidents may accumulate to the point that a judge will find that the other spouse has committed cruelty sufficient to grant a divorce, particularly if the misconduct has continued for a long period of time and shows no signs of abating. For example:
Being abusive to the children
Using pornography
Refusing to provide financial support
Throwing temper tantrums and throwing objects
Cursing and shouting
Substance abuse
Constantly criticizing the other spouse or the children
Consistently making false accusations of adultery or other significant misconduct
Being cold and indifferent
Extreme jealousy
These can all lead to what a court would consider cruel conduct. Generally, the more misconduct there is, and the worse it is, and the more concentrated it is (i.e., not just a few incidents spread out over time), the more likely that it will be considered cruel. On the other hand, a handful of incidents probably will not be considered cruelty. The big idea is for the judge to be convinced that nobody should have to live like this and that life with the other spouse is intolerable.
Contrast the behavior listed above with other misconduct that, generally, is not considered to be cruel:
Boorish, obnoxious, and selfish behavior
Quarreling
Nagging
Criticism
Weight gain
Poor housekeeping
Lack of sex
If you’re having trouble distinguishing between conduct that is bad enough to constitute grounds for divorce and conduct that isn’t, you’re not alone. We put “criticism” in both lists because sometimes it is grounds for divorce, and sometimes it isn’t. It’s a question of degree, and whether your complaint is just criticism, or criticism plus yelling plus throwing things plus insults plus being drunk and on and on until the judge decides enough is enough. Again, your lawyer has to have a significant amount of experience to be able to predict the conduct that is and isn’t enough to constitute HC&IT. Except for egregious misconduct, it truly is in the eye of the beholder.
