High court asked to find Miss. divorce law unconstitutional
Oct. 28, 2017
JACKSON, Miss. (AP) — The Mississippi Coalition Against Domestic Violence is asking the state's high court to agree with a Coast judge that Mississippi's lack of a true "no-fault" divorce grounds is unconstitutional.
In a divorce case that had dragged on since 2013, Harrison County Chancery Judge Jennifer Schloegel in June found that the state's requirement of "mutual consent" for divorce on grounds of irreconcilable differences is unconstitutional, and granted the divorce. The husband in the case has appealed the ruling to the State Supreme Court.
Schloegel wrote that Mississippi's divorce law often "becomes a bludgeon instead of an instrument of justice."
Mississippi and South Dakota remain the only two states without a unilateral no-fault divorce ground. This essentially ensures getting a divorce in Mississippi remains difficult and expensive and it often allows one spouse to delay finalizing a divorce for years.
An investigative report by The Clarion-Ledger early this year showed how Mississippi divorce laws, little changed over 100 years, trap spouses and children in abusive situations and financial limbo. One spouse who does not want a divorce or wants it only on their terms can hold up finalizing one for years — in some cases a decade or more.
MCADV has filed a brief asking to join in the case and asking the high court to hear oral arguments and "examine the Mississippi Divorce Statute through the eyes of a domestic violence victim." The Harrison County case does not include allegations of domestic violence, but anti-domestic violence advocates and others have said Mississippi's antiquated divorce laws make it difficult for an abused spouse to escape a marriage and help prolong dangerous family situations.
"When you consider the way an individual can manipulate the system to draw divorces out endlessly, everyone is getting played," said attorney Brandon Jones, vice president of MCADV. "The courts are getting played, the lawyers are getting played, all the individuals are getting played, except for the person who has some demented reason for stretching out the process for their own selfish purposes."
In its argument in its amicus brief, MCADV outlines a case — with no names included — in which a woman's husband "hit her so hard she could not hear out of one ear for over two weeks." When she finally escaped, her son had post-traumatic stress disorder and dental problems from grinding his teeth from worry when she was being beaten. Yet the woman was afraid to sue for divorce, even when the husband was incarcerated.
"This honorable court should look at the Mississippi divorce statute through her eyes, the eyes of every domestic violence victim, including the children ...," the brief reads. "... the current Mississippi divorce statute traps domestic violence victims in marriages with their abusers, then mandates the victim to obtain the consent of their abuser."
In March, after much debate and killing similar proposals this year and last, the Legislature passed a measure that allows judges to grant divorce for "spousal domestic abuse" based on the testimony of the victim spouse. Previously, the state's "habitual, cruel and inhuman treatment" ground for divorce had been interpreted to require corroborating evidence or testimony or evidence of a pattern of violence — often difficult to show just by the nature of domestic abuse.
Sen. Sally Doty, R-Brookhaven, helped champion the divorce reform, but recently said more needs to be done. She plans to push for a form of no-fault divorce, creating long-term separation — two years or more — as a ground.
But similar measures have met strong opposition from many lawmakers and the religious lobby. They have thwarted efforts to make divorce any easier or cheaper in effort to uphold the institution and sanctity of marriage. Yet, Mississippi has continually ranked near the top of states in its divorce rates.
Jones said MCADV is asking the state Supreme Court "to follow the lower court's lead and recognize the way we are doing divorces in Mississippi has constitutional problems."
"We task our courts with determining whether something crosses a constitutional line," Jones said. "They have that authority."
Information from: The Clarion-Ledger, http://www.clarionledger.com