So you just got a visit from the constable and he served you with a divorce complaint. In it, much to your surprise, you see that your spouse accused you of habitual cruel and inhuman treatment. It sounds really bad, and you’re offended and hurt that you’ve been accused of it. Sure, you recall your fair share of arguments and disagreements, but you don’t remember ever being cruel or inhuman.

Relax. Chances are you weren’t.

Habitual cruel and inhuman treatment is a ground for divorce that is overused and often misapplied. The law in Mississippi makes it very difficult to have a ground for divorce, and cruel and inhuman treatment is the most nebulous or ambiguous one on the list. Lawyers will often allege cruel and inhuman treatment simply because there is nothing else that remotely applies.

So what is cruel and inhuman treatment?

To establish cruel and inhuman treatment you or your spouse must prove the other’s conduct either:

1) Endangers life, limb or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief or

2) be so unnatural and infamous as to make the marriage revolting to the [offended] spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.

It’s a pretty high bar, and the Mississippi Supreme Court has said in order to prove habitual cruel and inhuman treatment it takes more that mere unkindness, rudeness, petty indignities, frivolous quarrels, incompatibility or lack of affection.

If you’ve been accused of habitual cruel and inhuman treatment consult an attorney as soon as possible.

This isn’t really divorce related, but worth addressing.  Wesley Snipes looks like he’ll be spending the next few years in prison for tax evasion. He was convicted of tax evasion but while he appealed the conviction he was out on bail.  Now that the appeal is concluded, so is his freedom, at least for a while.  While Snipes intentionally sought to evade taxation, and will pay a heavy price, normal people can find themselves with a financially devastating tax situation if they neglect their taxes.  While not a criminal offense normally, failing to file returns or to pay the required tax results in penalties and interest and a debt collector that you really can’t hang up on.  In the middle of a divorce, the last thing a divorcing person needs is delinquent tax debt.  File your returns, pay your taxes and avoid significant financial consequences.  Remember – the IRS will still be married to you even if your spouse is not.

The typical scenario when a spouse learns that the other has done something that destroys the marriage is that the innocent spouse meets with a lawyer, who guides the spouse through the divorce process.  Occasionally, though, you find that while listening to the “outrage” that a client expresses over learning that their spouse has had an affair you also learn that your “innocent” client has also been having an affair.  So what do you do if a client wants a divorce but both spouses are committing adultery?  An agreed resolution on the ground of Irreconcilable Differences would be the preferable outcome, but litigation may be the only option in some circumstances.

The Mississippi Supreme Court recently addressed a similar scenario in Jenkins v. Jenkins.  In Jenkins, the court was faced with a situation where the lower court granted a person a divorce on the ground of Habitual, Cruel and Inhuman Treatment.  The guilty spouse tried to defend the charge by claiming the defense of “recrimination”, which is a common-law defense that states if each party proves a fault ground for divorce then neither is entitled to a divorce.  The defense of recrimination has been altered by Miss. Code Ann. 93-5-3, which allows a court to grant a divorce, even if both parties prove a fault ground for divorce, by determining which spouse’s actions constituted the proximate cause of the destruction of the marriage.  The Mississippi Supreme Court determined that although the wife admitted committing adultery, the trial evidence showed that the husband’s habitual, cruel and inhuman treatment was the cause of the divorce, not the wife’s adultery, and that the lower court properly denied the husband’s recrimination defense.

Although a scenario where both parties are committing actions that constitute divorce grounds is not the preferable situation, a spouse may still be able to obtain a divorce without his/her spouse’s consent if the facts are supportive.  If you find yourself in this situation, speaking with an attorney to help analyze the proximate cause of the destruction of the marriage very early on is vital.

To get a divorce in Mississippi, spouses must either agree on a divorce on the ground of irreconcilable differences or prove that one of the causes for divorce that are specified in Miss. Code Section 93-5-1 exist.  The causes for divorce listed in Section 93-5-1 are:

1.  Natural Impotency

2.  Adultery

3. Being sentenced to any penitentiary, and not pardoned before being sent there

4.  Willful, continued and obstinate desertion for the space of one (1) year

5. Habitual drunkenness

6. Habitual and excessive use of opium, morphine or other like drug

7. Habitual cruel and inhuman treatment

8. Mental illness or mental retardation at the time of marriage, if the party complaining did not know of that infirmity

9. Marriage to some other person at the time of the pretended marriage between the parties

10. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy

11. Either party may have a divorce if they are related to each other within the degrees of kindred whom marriage is prohibited by law

12. Incurable mental illness

Obviously, some of the divorce grounds are going to be more frequently used than others.  For example, adultery and habitual, cruel and inhuman treatment are the most commonly asserted grounds for divorce while others like natural impotency and being related to one another are very seldomly asserted.

In later posts, we’ll discuss in more detail the individual grounds for divorce and what constitutes each ground.  If you are considering a divorce, a quick review of the allowable divorce grounds should provide an overview of what circumstances need to exist in order to get a divorce without the consent of your spouse.

The Mississippi Legislature has identified twelve situations where a party is entitled to a divorce without their spouse’s consent.  The fifth situation is habitual drunkenness.  The legislature did not provide any guidance as to what it considers habitual drunkenness to be and there are not many cases that elaborate.  However, it is safe to assume that the drinking spouse must become intoxicated habitually and that the frequent intoxication must have an adverse effect on the marriage.

If you believe you are entitled to a divorce because of your spouse’s habitual drunkenness, it is important that you pay attention to what type of alcohol is being consumed, the quantity and the frequency of consumption.  You will also need to explain how the habitual drunkenness is affecting your marriage.  Some examples of the effect the drunkenness may have on the marriage are that after drinking, your spouse has drastic mood changes, becomes belligerent, engages in frequent verbal altercations or even commits physical abuse.  It is important to link the habitual drunkenness to behavior that is offensive to the marriage.  To assist you in recalling all the details and to aid your attorney in advising you, it is recommended that you take notes to document the drinking and the behavior affecting the marriage.  Often, a spouse is unpleasantly surprised at the amount of alcohol consumed when they review their notes taken over a period of time. Of course, do not take notes and leave them where they may be found by your spouse.