Domestic abuse provision in state divorce law is progress, but work still needs to be done
By: KJ Lockley Miri
I cannot count the number of times I have met with a potential client who immediately tells me that he/she just wants a “no fault divorce.”
There is no such thing as a no fault divorce in the State of Mississippi. Two married people can agree to get a divorce (and, certainly, continue to argue about other things in regard to the terms of that divorce), but that is called an irreconcilable differences divorce.
Bottom line: in Mississippi, you and your spouse can agree to get a divorce, or you will have to prove to a Court that you are entitled to divorce your spouse. Does that sound a bit like you could get trapped in an unfortunate situation? Technically, that could be true.
However, the Mississippi legislature has at least chipped away at this problem by adding a provision within the “habitual cruel and inhuman treatment” ground for divorce that is meant to protect the victims of domestic abuse by allowing them to divorce their abusers (effective July 1, 2017).
Previously, getting a divorce due to domestic abuse was remarkably hard to prove. But this amendment reads like Mississippi is taking steps to at least make it easier for domestic abuse victims to escape abusive spouses. Progress is a process.
Here is the actual text, as amended:
“Seventh [ground for divorce]. Habitual cruel and inhuman treatment, including spousal domestic abuse. Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to: That the injured party's spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party's spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or That the injured party's spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.”
But what does that mean? The domestic abuse victim himself/herself may be (and often is) the only person privy to the abuse, but fortunately his/her testimony alone could now be enough for the divorce to be granted.
However, there is obviously large room for the Court’s discretion here. Phrases like “reliable testimony,” “credible witness,” “above the level of unkindness or rudeness or incompatibility or want of affection” leave ample room for the Court to make its ultimate decision.
Corroborating evidence would almost undoubtedly help bolster a case though. For example, did anyone witness anything at all relevant, even if no one else saw the abuse actually occur?
Are there threatening text messages, photos, notes from a medical visit, or other evidence that at the time may have gone overlooked by the domestic abuse victim but now their attorney could use to could truly help the Court connect the dots? In this regard, the Court’s extensive discretion could hopefully work in the domestic abuse victim’s favor. Notably, the statute does not limit domestic abuse to physical abuse which gives the Court even more latitude to free victims from abusive situations.
Mississippians expend a great deal of resources (financial, emotional, and otherwise) just to obtain the right to get a divorce, and all that must occur before they can begin to address the terms of the divorce (property division, custody, and the like). Mississippi is one of only two states left (the other is South Dakota) who will not allow a no fault (a.k.a. unilateral) divorce, but that is another issue to discuss on another day.
The current Mississippi statute on grounds for divorce is here:
Mississippi Code Annotated § 93-5-1 “Causes for Divorce”
“Divorces from the bonds of matrimony may be decreed to the injured party for any one or more of the following twelve (12) causes:
First. Natural impotency.
Second. Adultery, unless it should appear that it was committed by collusion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after a knowledge by complainant of the adultery.
Third. Being sentenced to any penitentiary, and not pardoned before being sent there.
Fourth. Willful, continued and obstinate desertion for the space of one (1) year.
Fifth. Habitual drunkenness.
Sixth. Habitual and excessive use of opium, morphine or other like drug.
Seventh. Habitual cruel and inhuman treatment, including spousal domestic abuse. Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to: That the injured party's spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party's spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or That the injured party's spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.
Eighth. Having mental illness or an intellectual disability at the time of marriage, if the party complaining did not know of that infirmity.
Ninth. Marriage to some other person at the time of the pretended marriage between the parties.
Tenth. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy.
Eleventh. Either party may have a divorce if they are related to each other within the degrees of kindred between whom marriage is prohibited by law.
Twelfth. Incurable mental illness. However, no divorce shall be granted upon this ground unless the party with mental illness has been under regular treatment for mental illness and causes thereof, confined in an institution for persons with mental illness for a period of at least three (3) years immediately preceding the commencement of the action. However, transfer of a party with mental illness to his or her home for treatment or a trial visit on prescription or recommendation of a licensed physician, which treatment or trial visit proves unsuccessful after a bona fide effort by the complaining party to effect a cure, upon the reconfinement of the party with mental illness in an institution for persons with mental illness, shall be regular treatment for mental illness and causes thereof, and the period of time so consumed in seeking to effect a cure or while on a trial visit home shall be added to the period of actual confinement in an institution for persons with mental illness in computing the required period of three (3) years confinement immediately preceding the beginning of the action. No divorce shall be granted because of mental illness until after a thorough examination of the person with mental illness by two (2) physicians who are recognized authorities on mental diseases. One (1) of those physicians shall be either the superintendent of a state psychiatric hospital or institution or a veterans hospital for persons with mental illness in which the patient is confined, or a member of the medical staff of that hospital or institution who has had the patient in charge. Before incurable mental illness can be successfully proven as a ground for divorce, it shall be necessary that both of those physicians make affidavit that the patient is a person with mental illness at the time of the examination, and both affidavits shall be made a part of the permanent record of the divorce proceedings and shall create the prima facie presumption of incurable mental illness, such as would justify a divorce based on that ground. Service of process shall be made on the superintendent of the hospital or institution in which the defendant is a patient. If the patient is in a hospital or institution outside the state, process shall be served by publication, as in other cases of service by publication, together with the sending of a copy by registered mail to the superintendent of the hospital or institution. In addition, process shall be served upon the next blood relative and guardian, if any. If there is no legal guardian, the court shall appoint a guardian ad litem to represent the interest of the person with mental illness. The relative or guardian and superintendent of the hospital or institution shall be entitled to appear and be heard upon any and all issues. The status of the parties as to the support and maintenance of the person with mental illness shall not be altered in any way by the granting of the divorce.
However, in the discretion of the chancery court, and in those cases as the court may deem it necessary and proper, before any such decree is granted on the ground of incurable mental illness, the complainant, when ordered by the court, shall enter into bond, to be approved by the court, in such an amount as the court may think just and proper, conditioned for the care and keeping of the person with mental illness during the remainder of his or her natural life, unless the person with mental illness has a sufficient estate in his or her own right for that purpose.
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