Grounds for Divorce in Mississippi

If you want to get a divorce, you need to have a legally acceptable reason ("ground") for ending your marriage. Mississippi allows you to file for divorce based on either a no-fault ground or one of several fault-based grounds. Your choice can have a significant impact on how your case proceeds, including how much your divorce will cost and how long it will take. So it pays to understand your options and the difference between no-fault and fault divorce.

What Is the "No-Fault" Ground for Divorce in Mississippi?

You may get a Mississipppi divorce by declaring that you and your spouse have "irreconcilable differences." Basically, this means you can't get along, and there's no reasonable chance that you'll get back together.

However, you won't be able to get a no-fault divorce in Mississippi unless both you and your spouse agree that you have irreconcilable differences. You'll need to show the court that you agree on this by submitting either:

• a written settlement agreement about all the issues in your divorce (more on that below), or
• your spouse's signed, written consent to divorce based on irreconcilable differences.

(Miss. Code § 93-5-2 (2023).)

What Are the "Fault" Grounds for Divorce in Mississippi?

When you file for a fault divorce, you're accusing your spouse of causing the breakdown of the marriage because of specific marital misconduct. It's important to point out that you may not file for a fault divorce based on your own misconduct.

Mississippi has a long list of fault-based grounds for divorce:

• adultery
• habitual cruel treatment, including spousal abuse
• "willful, continued and obstinate desertion" for a year
• habitual drunkenness
• habitual and excessive use of drugs like opium or morphine
• "natural" impotence
• incarceration in prison
• bigamy (being lawfully married to someone else at the time of marriage)
• the fact that the spouses were close enough relatives that their marriage would've been illegal, and
• the wife's pregnancy by another man at the time of marriage, without the husband's knowledge.

Note that you won't be able to get a divorce based on your spouse's adultery if you continued to live together after you learned about the affair. The law also includes an old exception that applies when the spouses colluded to use adultery as a divorce ground. But couples aren't likely to do this now that they have the option of filing for a no-fault divorce. (Miss. Code § 93-5-1 (2023).)

The state also allows you to file for divorce based on:

• your spouse's mental illness or intellectual disability at the time of marriage, if you didn't know about it when you married, or
• your spouse's incurable mental illness and confinement in a psychiatric institution.

Although these grounds aren't really based on misconduct, the spouse who files for divorce must prove the claims. (And the requirements for that proof are very detailed when it comes to incurable mental illness). So in that way, these cases proceed like a fault divorce.

Can Fault Play a Role in the Outcome of Your Mississippi Divorce?

When judges need to resolve disputes in a divorce, they may sometimes take a spouse's misconduct into account. But the guidelines for these considerations vary depending on the issue involved.

Misconduct and Alimony

Judges must consider a spouse's fault or misconduct (including adultery) when deciding whether to award alimony and, if so, how much and for how long. But that will only be one among a long list of other considerations that go into these decisions. (Armstrong v. Armstrong, 618 So.2d 1278 (Miss. Sup. Ct. 1993).) And these days, judges tend to focus more on the factors that affect one spouse's need for support and other spouse's ability to pay.

Misconduct and Property Division

When judges are deciding how to divide a couple's property in a Mississippi divorce, they have a lot of leeway in coming up with a fair split. The state's supreme court has laid out guidelines for the factors judges should consider, including how much each spouse has contributed to "the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage." Judges may also consider when one spouse has wasted marital assets. (Ferguson v. Ferguson, 639 So.2d 921 (Miss. Sup. Ct. 1994).)

Based on these guidelines, a judge might decide that it would be fair to award one spouse a greater share of the marital property based on the other spouse's fault—especially misconduct like desertion or spousal abuse, or when a spouse has wasted marital funds on a serious drug habit.

Misconduct and Child Custody

Judges in Alabama may not use marital fault as a sanction or punishment in child custody awards. But when they're deciding which custody arrangements would be in the child's best interests, they should consider a wide range of issues, including the parents' "moral fitness" and mental health. (Albright v. Albright, 437 So.2d 1003 (Miss. Sup. Ct. 1983).)

Typically, the kinds of misconduct that could be a ground for fault-based divorce would play a role in custody decisions only if they affect the "guilty" spouse's ability to be a good parent. For instance, a judge might decide that it wouldn't be good for children to live with (or even have unsupervised visitation with) a parent who is suffering from serious, untreated alcoholism or mental illness. (Learn more about how substance abuse can affect custody decisions.)

Misconduct and Child Support

Child support in Mississippi is calculated under guidelines that are based on the noncustodial parent's income and the number of children being supported. The support is for the children, not to punish or reward either of the parents. So a parent's fault in the breakup of the marriage won't play a role in the child support award.

The Pros and Cons of Fault or No-Fault Divorce

No-fault divorces are typically quicker and easier than fault divorces. But just because you and your spouse have agreed to seek a no-fault divorce based on irreconcilable differences, that doesn't necessarily mean you'll also agree about all the other issues in your divorce, including property division, alimony, child custody, and child support. However, if you can reach a complete divorce settlement agreement on these issues, you'll be able to take advantage of the time and cost-saving benefits of an uncontested divorce in Mississippi.

When you file for a fault divorce, you'll need to prove your claims of misconduct in court, and your spouse will usually contest those claims. That means that you'll have to proceed with a contested divorce, including a trial. All of that adds to the anxiety, time, and expense (think attorney's fees) of divorce.

That said, you might believe that a fault divorce would be to your advantage—or that might be the only option available if your spouse refuses to consent to divorce based on irreconcilable differences. In either of those situations, you should speak with an experienced Mississippi divorce attorney who can evaluate your case, help you decide on the best way to move forward, and help you gather and present the evidence you'll need if you go ahead with a fault divorce.