Substance Abuse
The question of whether you can get a divorce because of your spouse’s substance abuse is not nearly as clear as whether you can get a divorce on the basis of your spouse’s adultery or violence. For whatever reason, substance abuse divorces have not been appealed nearly as often as adultery divorces, so the law is not as fully developed.
The formal term for a divorce based on alcohol abuse is “habitual drunkenness.” The offense appears to be not so much drinking, per se, or even drinking habitually. In fact, it’s not clear that getting drunk habitually will sustain a divorce for “habitual drunkenness.”
As an example, in one case that the Supreme Court decided, a husband was not “habitually drunk” even though he drank four to five beers every night, since he was still able to go to work the next day. But in another case, the husband was “habitually drunk” since he often drank a case of beer every night and then became insulting and abusive to his family. The key difference between the cases wasn’t so much that the husband was an accomplished drinker, so much as how he behaved because of his drinking.
To get a divorce, you will not want your proof to stop with evidence that your spouse drinks a lot or gets drunk a lot. You will want to go further and show your spouse’s misbehavior that occurs as a consequence of drinking. In general terms, these will be (a) disruption of the family, (b) disruption of employment, and (c) disruption of the family finances, which often implies some combination of (a) and (b).
As a practical matter, the evidence is going to build around your testimony about your spouse’s drinking. In addition, you might add (as applicable):
Testimony of the children about your spouse’s drinking
Testimony of other family members
Testimony of co-workers
Photographs/videos of your spouse passed out, particularly in places that will be hard for your spouse to explain away (e.g., behind the wheel, on the stairs, in the hallway)
Photographs of piles of empty beer cans/liquor bottles, particularly if they are in your spouse’s vehicle
Photographs of hidden liquor, particularly if it is stored in places that will be hard for your spouse to explain away (e.g., in the back of the closet, in a child’s room, under the car seat, in the backyard bushes)
Bank or credit card statements showing hard-to-justify spending at liquor stores (savvy alcoholics pay in cash)
Recordings of spouse drunk (slurring words, making no sense, shouting)
Records/law enforcement testimony (re: DUIs, public intoxication arrests, etc.)
Proof of job loss or disciplinary action at work
Records of spouse’s treatment for alcoholism
Counseling records showing that you have complained about your spouse’s drinking long before the divorce started
This list is similar to the proof that you would compile to prove divorce based on drug use.
It’s harder to predict whether substance abuse is grounds for divorce where the spouse is a functional alcoholic/drug user. For example, a functional alcoholic might get drunk every night and pass out in his chair in front of the TV but just wakes up in the middle of the night and goes to bed (like a normal person would), gets up the next morning and goes to work (like a normal person would), does his job and comes home at the end of the day (like a normal person would). In fact, the only thing he does differently is, at some point in the late afternoon or evening, he gets drunk — has to get drunk; can’t abide not getting drunk — and then passes out in the chair in front of the TV and repeats the cycle. He never loses his job, never gets arrested, never gets violent, and in fact might be highly functional in every sense except for the overpowering need to get drunk at the end of the day. We have seen kits that the functional alcoholic keeps ready at all times, so that at 5:00 sharp, he has cup, ice, liquor, mix — all ready to go.
Mississippi uses an antiquated term for divorce based on drug abuse: “Habitual and excessive use of opium, morphine, or other like drug." Years ago, lawyers read this a little too literally, arguing that abuse of anything other than opium, morphine, or similar depressants was not grounds for divorce. That argument failed. The question isn’t so much what the drug is, but whether the spouse abuses it and what is the effect of that abuse. If the spouse is irresponsible, reckless, dangerous, abusive, etc. because of the drug use, a divorce is more likely to be granted.
There is a caveat for prescription drug use. The general rule is that it is not a ground for divorce to use prescribed drugs as prescribed. But a certain amount of good faith must be presumed. Technically, a spouse who is doctor-shopping is using prescribed drugs as prescribed, but the more this savors of intentional prescription drug abuse, the more likely that it will be grounds for divorce.
Timing of the substance abuse is also an issue. In an adultery case, it doesn’t matter whether the spouse cheated yesterday or 25 years ago — cheating at any time during the marriage gives the innocent spouse grounds for divorce. This is not the case in a substance abuse case. If the guilty spouse has gotten sober and remains sober at the time of trial, a divorce is less likely to be granted than if he is still in active addiction.
The bottom line on getting a divorce on the basis of substance abuse is that you don’t want your proof to stop at merely proving substance abuse. You want it to go further and show how the abuse of alcohol or drugs affected the marriage and the family. The more severe the damage caused by substance abuse, the more likely that the judge will award a divorce.
