Fault-Based Divorce

If the parties cannot agree even to get a no-fault divorce, then they cannot get a divorce, unless one spouse can prove “fault grounds” against the other. A person who wants to divorce a spouse who refuses to agree to a no-fault divorce must prove that the refusing spouse is guilty of at least one fault ground.

These are the fault grounds in Mississippi. The five most commonly used grounds are listed in bold:

1. Natural impotency

2. Adultery

3. Being sentenced to the penitentiary

4. Willful, continued, and obstinate desertion for at least one year

5. Habitual drunkenness

6. Habitual and excessive use of opium, morphine, or other like drug

7. Habitual cruel and inhuman treatment

8. Mental illness or mental retardation at the time of marriage

9. Bigamy

10. Pregnancy of the wife by another person at the time of marriage

11. Incest

12. Incurable mental illness

CHANGING THE PATH OF YOUR DIVORCE

We’ve written as if parties can only pursue one of the three paths that we’ve described. Either:

1. Negotiate all of the terms of the divorce, and then agree to a no-fault divorce;

2. Agree to the no-fault divorce, but take whatever issues that you can’t agree on to the judge to decide at the courthouse. There will be a contested trial on these issues, and the judge will make a decision that is legally binding; or

3. Prove that the other side is guilty of fault grounds, as part of a contested trial on all issues that you cannot agree on. If the judge finds that you are entitled to a divorce, you will not only be granted a divorce, but at the same time the judge will divide the marital property and make a decision about alimony, child custody, visitation, and child support.

These are the only three paths available, but you certainly are allowed to jump from one path to another and back again (with one exception explained below). For example, when parties can’t agree to Path 1, they generally jump to Path 3. Then, at some point while preparing for trial, they start negotiating (maybe with a better appreciation of the other side’s case, or of the uncertainty that comes with asking a stranger [the judge] to decide their future). Next thing you know, they jump to Path 2, and maybe even to Path 1. This is normal. Very few cases start off as a contested, fault grounds case (i.e., Path 3), and go all the way through trial. It happens, but what we usually see instead is people agreeing to one of the first two paths somewhere along the way.

Here’s the exception: Once everyone signs the Path 2 paperwork, you’re not allowed to go to Path 3. The whole point of those papers is to tie everyone down to their agreement that the case will proceed as a no-fault divorce. Technically, you’re allowed to ask the judge to set aside your agreement to a no-fault divorce, but you’ll have to show a good reason.

CORROBORATING EVIDENCE

Regardless of the fault-based divorce ground, you are required to submit not only evidence that the misconduct occurred, but also evidence that corroborates your primary evidence. That’s not a great explanation, so here are some examples:

• A wife testifies that her husband is violent (primary evidence). She produces hospital records and photographs of her injuries (corroborating evidence).

• A private investigator testifies that he observed a wife and her boss go into a room at a local motel (primary evidence). He also submits their cell phone records that show the two texting at all hours of the day and night, for hours on end (corroborating evidence).

• A wife testifies that her husband gets drunk every night (primary evidence). She produces photographs of the empty beer cans and liquor bottles in his truck, and police officers testify to his arrests for DUI (corroborating evidence).

• A husband testifies that his wife left him over a year ago and has not returned home (primary evidence). He submits her lease and statements of her utility accounts that show that she has taken up residence in another town (corroborating evidence).

The corroborating evidence does not have to fully prove the fault ground all by itself. The idea is that it tends to prove the accusation and is consistent with the primary evidence.

There is one exception to the rule that divorce evidence has to be corroborated. In a dangerous marriage, discussed here, the victim/spouse’s testimony without corroboration can be enough to prove grounds for divorce.