Recrimination—a defense to divorce in Mississippi?
The “You did it too” defense
The first defense to a divorce is recrimination. Recrimination “is founded on the basis that the equal guilt of a complainant bars his/her right to divorce, and the principal consideration is that the complainant must come into court with clean hands.”
In an interesting case, the Mississippi Supreme Court explained the defense. The case involved a husband who was allegedly impotent and liked to dress up occasionally in women’s clothes. The wife filed for divorce based upon cruel and inhuman treatment, but the chancellor denied the divorce. The Supreme Court found sufficient grounds based upon the husband’s conduct and its impact on the wife’s health. However, at trial there was testimony that the wife was seen sitting on another man’s lap and kissing him. So the husband raised the defense of recrimination. As the Court explained, the defense did not apply. In order for the defense of recrimination to apply, the other spouse must also commit an offense that is a fault-based ground for divorce. An example would be if the husband could have proven the wife committed adultery, recrimination would have applied. Given her conduct did not rise to that level, the defense had no application to the case.
Additionally, the legislature has given chancellors discretion in whether to accept the defense of recrimination. Under Mississippi Code, Section 93-5-3, it states:
“If a complainant or cross-complainant in a divorce action shall prove grounds entitled him to a divorce, it shall not be mandatory on any chancellor to deny such party a divorce, even though the evidence might establish recrimination on the part of such complainant or cross-complainant.”
Recently the Court of Appeals upheld the decision in a case out of Hinds County, Mississippi where the chancellor granted a divorce based on uncondoned adultery even though the complaining spouse was also guilty of adultery. The Court said in accordance with the above statute, the chancellor had the discretion to grant the divorce.
In my next post, I will discuss the defense of condonation.
