MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary A

By: Representatives Banks, Evans

AN ACT TO AMEND SECTION 93-5-1, MISSISSIPPI CODE OF 1972, TO DELETE NATURAL IMPOTENCY AND BEING SENTENCED TO THE PENITENTIARY AS GROUNDS FOR DIVORCE; TO INCLUDE IRRECONCILABLE DIFFERENCES IN THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT; TO AMEND SECTION 93-5-2, 93-5-7, 93-5-11 AND 93-5-17, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 93-5-1, Mississippi Code of 1972, is amended as follows:

93-5-1. Divorces from the bonds of matrimony may be decreed to the injured party for any one or more of the following ten (10) causes, viz:

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First. Adultery, unless it should appear that it was committed by collusion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after a knowledge by complainant of the adultery.

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Second. Wilful, continued and obstinate desertion for the space of one year.

Third. Habitual drunkenness.

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

Fifth. Habitual cruel and inhuman treatment, which may include irreconcilable differences as provided in Section 93-5-2 if determined by the court for the court to grant a divorce on the ground of habitual cruel and inhuman treatment based on irreconcilable difference the court must base its decision upon proof of a continuous pattern of outrageous or illegal behavior or conduct, engaged in or assumed by the offending party which substantially impairs the joint purposes of the marriage or which has rendered future cohabitation between the parties improbable and which is determined as cruel and inhuman treatment.

Sixth. Insanity or idiocy at the time of marriage, if the party complaining did not know of such infirmity.

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

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

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

Tenth. Incurable insanity. But no divorce shall be granted upon this ground unless the insane party shall have been under regular treatment for insanity and causes thereof, confined in an institution for the insane for a period of at least three years immediately preceding the commencement of the action. Provided, however, that transfer of an insane party to his or her home for treatment or a trial visit on prescription or recommendation of a licensed physician, which treatment or trial visit proves unsuccessful after a bona fide effort by the complaining party to effect a cure, upon the reconfinement of the insane party in an institution for the insane, shall be regular treatment for insanity and causes thereof, and the period of time so consumed in seeking to effect a cure, or while on a trial visit home, shall be added to the period of actual confinement in an institution for the insane in computing the required period of three (3) years confinement immediately preceding the commencement of the action. No divorce shall be granted because of insanity until after a thorough examination of such insane person by two (2) physicians who are recognized authorities on mental diseases. One such physician shall be either the superintendent of the state hospital or the veterans hospital for the insane in which the patient is confined, or a member of the medical staff of such hospital who has had the patient in charge. Before incurable insanity can be successfully proven as a ground for divorce, it shall be necessary that both such physicians make affidavit that such patient is a mentally disturbed person at the time of the examination and both affidavits shall be made a part of the permanent record of the divorce proceedings and shall create the prima facie presumption of incurable insanity, such as would justify a divorce based thereon. Service of process shall be made on the superintendent of the hospital in which the defendant is a patient. In event the patient is in a hospital outside the state, process shall be served by publication, as in other cases of service by publication, together with the sending of a copy by registered mail to the superintendent of said hospital. In addition thereto, process shall be served upon the next blood relative and guardian, if any. In event there is no legal guardian, the court shall appoint a guardian ad litem to represent the interest of the insane person. Such relative or guardian and superintendent of the institution shall be entitled to appear and be heard upon any and all issues. The status of the parties as to the support and maintenance of the insane person shall not be altered in any way by the granting of the divorce.

However, in the discretion of the chancery court, and in such cases as the court may deem it necessary and proper, before any such decree is granted on the ground of incurable insanity, the complainant, when ordered by the court, shall enter into bond, to be approved by the court, in such an amount as the court may think just and proper, conditioned for the care and keeping of such insane person during the remainder of his or her natural life, unless such insane person has a sufficient estate in his or her own right for such purpose.

SECTION 2. Section 93-5-2, Mississippi Code of 1972, is amended as follows:

93-5-2. (1) Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences, as provided under this section, but only upon the joint complaint of the husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process.

(2) If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.

(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto. The failure or refusal of either party to agree as to adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between the parties, or any portion of such issues, or the failure or refusal of any party to consent to permit the court to decide such issues, shall not be used as evidence, or in any manner, against such party. No divorce shall be granted on the grounds of irreconcilable differences under this subsection until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been either adjudicated by the court or agreed upon by the parties and found to be adequate and sufficient by the court and included in the judgment of divorce. Appeals from any orders and judgments rendered pursuant to this subsection may be had as in other cases in chancery court only insofar as such orders and judgments relate to issues that the parties consented to have decided by the court.

(4) Complaints for divorce on the ground of irreconcilable differences under this section must have been on file for sixty (60) days before being heard. Except as otherwise provided in subsection (3) of this section, a joint complaint of husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process, for divorce solely on the ground of irreconcilable differences, under this section, shall be taken as proved and a final judgment entered on the joint complaint or complaint, as in other cases and without proof or testimony in termtime or vacation, the provisions of Section 93-5-17 to the contrary notwithstanding.

(5) Except as otherwise provided in subsection (3) of this section, no divorce shall be granted on the ground of irreconcilable differences under this section where there has been a contest or denial; provided, however, that a divorce may be granted on the grounds of irreconcilable differences under this section where there has been a contest or denial, if the contest or denial has been withdrawn or cancelled by the party filing same by leave and order of the court.

(6) Irreconcilable differences under this section may be asserted as a sole ground for divorce or as an alternate ground for divorce with any other cause for divorce set out in Section 93-5-1.

SECTION 3. Section 93-5-7, Mississippi Code of 1972, is amended as follows:

93-5-7. The proceedings to obtain a divorce shall be by complaint in chancery, and shall be conducted as other suits in chancery, except that (1) the defendant shall not be required to answer on oath; (2) no judgment by default may be granted but a divorce may be granted on the ground of irreconcilable differences under Section 93-5-2 in termtime or vacation; (3) admissions made in the answer shall not be taken as evidence; (4) the clerk shall not set down on the issue docket any divorce case unless upon the request of one (1) of the parties; (5) the plaintiff may allege only the statutory language as cause for divorce in a separate paragraph in the complaint; provided, however, the defendant shall be entitled to discover any matter, not privileged, which is relevant to the issues raised by the claims or defenses of the other; (6) the court shall have full power in its discretion to grant continuances in such cases without the compliance by the parties with any of the requirements of law respecting continuances in other cases; and (7) in all cases, except complaints seeking a divorce on the ground of irreconcilable differences under Section 93-5-2, the complaint must be accompanied with an affidavit of plaintiff that it is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the complaint are true as stated.

SECTION 4. Section 93-5-11, Mississippi Code of 1972, is amended as follows:

93-5-11. All complaints, except those based solely on the ground of irreconcilable differences under Section 93-5-2, must be filed in the county in which the plaintiff resides, if the defendant be a nonresident of this state, or be absent, so that process cannot be served; and the manner of making the parties defendants so as to authorize a judgment against them in other chancery cases, shall be observed. If the defendant be a resident of this state, the complaint shall be filed in the county in which the defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the plaintiff be still a resident of the county when the suit is instituted.

A complaint for divorce based solely on the grounds of irreconcilable differences under Section 93-5-2, shall be filed in the county of residence of either party where both parties are residents of this state. If one (1) party is not a resident of this state, then the complaint shall be filed in the county where the resident party resides.

SECTION 5. Section 93-5-17, Mississippi Code of 1972, is amended as follows:

93-5-17. (1) The proceedings to obtain a divorce shall not be heard or considered nor a judgment of divorce entered except in open court, except in cases where divorce is granted solely on the ground of irreconcilable differences under Section 93-5-2. A chancellor may, in his discretion, hear or consider proceedings to obtain a divorce in vacation and make and enter judgments of divorce in the same manner as he may in other cases that may be heard in vacation pursuant to Section 9-5-91. Any judgment made or entered contrary to the provisions of this section shall be null and void.

(2) The chancellor in vacation may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.

(3) As used in this section, the term "chancellor in vacation" shall include any chancellor who is holding court at any location in any county in his district.

SECTION 6. This act shall take effect and be in force from and after July 1, 1999.