When filing for divorce, the spouse asking for the divorce must identify the "ground" (reason) for the break-up of the marriage. Mississippi has both fault and no-fault grounds for divorce.
In a "fault" divorce, one spouse accuses the other of causing the breakdown of the marriage because of specific marital misconduct.
The fault grounds for divorce in Mississippi include the following:
It's important to note that only the "injured party" can file for divorce based on a fault ground. This means, for example, that if one spouse has deserted the other spouse for at least a year, only the other spouse can file for divorce on the ground of willful and continuous desertion. In other words, you can't use your own wrongdoing to initiate a divorce.
The spouse alleging fault has to prove it in court at trial. In a trial, the spouses typically present witnesses and documents to enable the judge to make an informed decision.
The current trend in divorce is to avoid fault grounds, if possible. They tend to add to the anxiety and expense (think attorneys' fees) of divorce. And there's little, if any, benefit to using fault grounds. Under Mississippi law, courts can take fault into consideration in determining alimony (spousal support). (Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993).) But that's seen far less often than in the past, as the law has evolved to base alimony primarily on a spouse's needs, and not as a means of punishing the offending spouse.
Certain types of conduct that fall under the fault grounds can also impact child custody. The deciding factor in any custody case is the best interests of the child. So a parent's moral fitness is something a court can consider. (Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).)
In that vein, you might be tempted to think that adultery would be an automatic disqualifier for a parent seeking custody. But adultery, in and of itself, likely wouldn't be enough. To preclude an adulterous parent from having custody, you'd probably have to prove that the parent is exposing the child to a situation that endangers the child physically or emotionally. For example, you might see this if the parent allows a known sex offender or an active drug abuser to spend time with the child.
The only "no-fault" ground for divorce in Mississippi is "irreconcilable differences." (Miss. Code Ann. § 93-5-2.) Irreconcilable differences basically means that the spouses can no longer get along, and there's no reasonable chance of them getting back together.
In order to obtain a divorce based on irreconcilable differences, Mississippi law holds that the spouses must be in agreement that those differences exist. If one of the spouses doesn't agree, the spouse seeking the divorce must prove that the other spouse committed one of the "fault" grounds listed above. Note also that with a divorce complaint based on the no-fault ground, you have to wait 60 days after filing the complaint before the court will hear the case.
It's important to remember that a no-fault divorce isn't necessarily an uncontested divorce. The ground for divorce is only one aspect of the process. You will typically be addressing other issues, such as alimony, division of property and debt, child custody, and child support.
If the spouses can reach an agreement on those topics, the court will enter a judgment of divorce that also includes the terms of that agreement. But if they can't, the court will have to decide those issues for them, after a trial. Once the court has decided the contested issues, it will grant the divorce on the basis of irreconcilable differences.
Because no-fault divorce eliminates the need to prove that either spouse precipitated the break-up by doing something wrong, it usually lowers stress levels and expenses. That's why it's become the preferred method of dissolving a marriage.