Divorce Defenses

A frequently asked question concerns the defenses available if you or your spouse wants to contest a divorce proceeding. The following is a summary of the most commonly used defenses to divorce.

Knowledge of Condition at the Time of Marriage

Premarital knowledge of a spouse’s condition may act as a bar to divorce. For example, knowledge of premarital pregnancy or mental illness will act as a bar to a divorce based on those grounds. Premarital knowledge may also act as a bar in cases involving drunkenness, drug use, imprisonment, or impotence.

Ratification

When a spouse discovers the existence of a statutory ground for divorce, a divorce must be pursued within a reasonable amount of time. If the spouse fails to act within a reasonable amount of time, the spouse may be found to have ratified or accepted the condition or misconduct. McIntosh v. McIntosh, 117 So. 352, 352 (Miss. 1928)(finding that husband was barred from divorcing on these grounds after finding out the wife had mental illness shortly after marriage, but chose to remain with her through twenty years of marriage).

Mental Illness

Mental illness of a spouse condition may act as a bar to divorce. When divorce is based on the grounds of desertion and habitual, cruel, and inhuman treatment, mental illness is a bar to divorce. Mental illness may also act as a bar in cases involving adultery. Walker v. Walker, 105 So. 753, 756 (Miss. 1925)(finding that wife could not be found guilty of habitual, cruel, and inhuman treatment, mental illness because her actions were the result of insanity).

Reformation

When a divorce is sought based on habitual drunkenness and habitual drug use, reformation is a defense. The defendant must prove that he/she has reformed and discontinued the habit.

Forgiveness

Forgiveness or condonation may be a defense for divorce. Forgiveness can be direct or implied. Forgiveness is available as a defense to a divorce based on adultery. This often occurs when the spouses continue living together after the adultery is discovered. Fulton v. Fulton, 918 So. 2d 877, 881 (Miss. Ct. App. 2006)(denying divorce based on the defense of condonation where wife ended her affair, admitted the existence of affair to her husband and husband and wife resumed sexual relations for at least eight months).

Connivance

Consenting to another spouse’s wrongful conduct is connivance and is a defense to divorce. In other words, a spouse who fails to object to wrongdoing has not been wronged. Although this defense is available, it has not been successful in Mississippi on the appellate level.

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Our attorneys have experience handling divorce cases for clients across Mississippi. Contact us online or call our office at 601-957-3101 to discuss the specifics of your situation.