Fault

Posted on Friday, October 29, 2010

The more aggressive way that one can get a divorce is if you or your spouse has a reason. Sometimes I have no choice but to encourage a client to proceed on a contested basis if there are pressing financial circumstances, even if it be an audible such as a request for separate maintenance or partition of real estate, but more on that another time. For a divorce to be granted on a fault basis there must be a hearing in open court.

Reasons for divorce in Mississippi are as follows:

1) Natural impotency;
2) Adultery;
3) Being sentenced to a penitentiary;
4) Desertion;
5) Habitual drunkenness;
6) Habitual use of drugs;
7) Cruelty;
8) Insanity;
9) Being already married at time of marriage;
10) Pregnancy by another person at time of marriage;
11) Incest; and
12) Incurable insanity

The most frequent grounds for divorce are cruelty, adultery, desertion, and habitual use of drugs and/or alcohol. I can count on one hand how many times I have pled all of the other grounds combined in ten years. A fault based divorce is more like your standard lawsuit. It begins with the filing of a Complaint in which a person informs their spouse of the relief they are seeking and the basic theory of law upon which it is based. When I draft a divorce Complaint I like to keep it simple. When we only have to place the other party on notice as to what we want, making a long factual recitation can only hurt because it could limit the theory of your case. This is called “Notice Pleadings.” After the Complaint is filed, the clerk of the chancery court will issue the summons. Most divorce cases involved two types. One is called the Rule 4 Summons which goes with almost every type of legal action in our state. This document basically informs the person to whom it is address that they are being sued and that they must take action or bad things will happen. The other type of summons in divorce actions is called the Rule 81 Summons. This is what the law requires to accompany a prayer for temporary relief, which will usually be within the Complaint for Divorce, although some lawyers create a separate document styled “Motion for Temporary Relief.” (It is also what is served on an opposing party in a post-divorce modification or contempt). The Rule 81 Summons informs you that you must be in Court on a certain day or they will proceed without you.

By: M. Craig Robertson