A new ground for Divorce?
January 26, 2012 3 Comments
In Mississippi there are currently twelve fault based grounds plus irreconcilable differences. I remember Shelton Hand speaking on this subject like it was yesterday. “The fault based grounds must be pled and proven. Irreconcilable differences must be agreed upon.” The current twelve fault based grounds for divorce contained in 93-5-1 are:
- Being sentenced to the penitentiary;
- Desertion for one year;
- Habitual drunkenness;
- Habitual drug use;
- Habitual cruel and inhumane treatment;
- Mental illness or disability at the time of the marriage;
- Marriage to another at the time of the pretend marriage;
- Pregnancy by another at the time of the marriage;
- Kinship within the prohibited degree; and
- Incurable insanity.
Senate Bill 2105 recently introduced would add a thirteenth fault based ground for bona fide separation in excess of five years. The exact language is
Bona fide, complete separation without reconciliation for a period of not less than five (5) years; however, if there are minor children of the marriage, the chancellor may deny the divorce if the court finds the divorce not to be in the best interest of the children.
So, is this a good idea? At first glance it would appear somewhat redundant with desertion. Oddly enough, Professor Bell notes in Mississippi Family Law that the period of time required to obtain a divorce based on desertion has gradually reduced from five years in 1840 to three, then two and now one year since 1938. Are there a number of people out there that can’t obtain a divorce under the current twelve grounds that need this separation ground? I doubt it. However, it could be useful for a few situations as it doesn’t require a wronged party and is therefore equally available to both parties. Of course this is just a bill. It isn’t the law as of yet and like most bills, it may very well die in committee.