Divorce in Mississippi difficult, costly
Interesting article in the Clarion Ledger I spotted over the weekend discussing Mississippi’s divorce laws.
Geoff Pender ,The Clarion-Ledger Published 7:06 p.m. CT Feb. 18, 2017 | Updated 7:30 p.m. CT Feb. 18, 2017
D-I-V-O-R-C-E in Mississippi
Mississippi and South Dakota are the last two states in the Union without a unilateral “no-fault” divorce provision. In practice, this allows one spouse to hold up a divorce — sometimes for years — a common occurrence in Mississippi. Dustin Barnes & Geoff Pender/The Clarion-Ledger(Photo: Special to The Clarion-Ledger)
In 2001, Elizabeth Freels knew her marriage of seven years was over, and she wanted a divorce. But her husband, David, felt otherwise. He didn’t want one. Elizabeth said he told her, “I will not give you a divorce until the day you die. If I can’t have you, no one else will.”And in Mississippi, one of only two states without a true “no-fault divorce” law, if one spouse doesn’t want a divorce, he or she can often stave one off for a long time. In the Freels’ case, it was more than a decade.
There’s an effort in the Legislature to make some small reforms to Mississippi divorce law. But such efforts have failed in the past, and a measure to create a “no-fault” divorce based on length of separation has already been watered down early in the legislative process this session. Getting a divorce in Mississippi is difficult and expensive. Lawmakers and the religious lobby in this Bible Belt state have been reluctant to make it any easier or cheaper, mainly in efforts to uphold the institution and sanctity of marriage. Yet, Mississippi still ranks continually near the top of states in its divorce rate — seventh highest in one recent study.Experts say Mississippi’s antiquated divorce laws, little changed over a century, put low-income people at a disadvantage — particularly homemakers who don’t have resources to fight a lengthy court battle. They likely hurt the state’s overall economy, clog the courts and cost taxpayers.“The fact that ‘natural impotency’ — whatever that means — is a grounds, an issue or reason for a divorce, but being a horrible abusive person is not, being violent once or maybe even twice is not — that’s some absurd manhood thing.”— “Mary Smith,” on domestic abuse not being grounds for divorce in MississippiAnd worse, they trap some spouses and children in abusive and dangerous situations.’War of the Roses'”It made my skin crawl,” Elizabeth Freels said after a lawyer first explained Mississippi’s divorce laws and procedures to her.The lawyer explained she would have to prove one of 12 grounds in the state’s antiquated law — and provide “clear and convincing evidence” — or get her husband to agree to a divorce, including every single term of custody, finances, etc.”I said, ‘Are you kidding me?’ … Even in Saudi Arabia you can get a divorce if you want one. Here, you’re at the mercy of another person.”Lacking resources and concerned about stability for the couple’s three children, Freels lived with her erstwhile husband in Brookhaven for another four years. She describes this as an “under the same roof, but a ‘War of the Roses’ type of deal.”In 2005, Elizabeth Freels left, moved to Clinton and filed for divorce. She said her husband wasn’t working or paying child support, and refused to agree to sell their house, so she “incurred tremendous expense.”But David Freels still would not agree to a divorce.”I didn’t want to lose her, or the children,” David Freels said recently. “… If she would have had grounds for a divorce, I would have gracefully bowed my head and given her a divorce.”David Freels said Elizabeth was initially asking for $300 a month per child in support. He said he was “practically homeless” and unemployed. “I refused to give her a divorce on irreconcilable differences because she never tried to reconcile.”I still love her.”After years of a standoff, Elizabeth Freels said her attorney “pretty much told me the only solution is to move out of state.”Elizabeth Freels said she waited until her youngest child was off to college, did her research on other states’ laws, packed up and moved to Washington state. She left friends and a good job. She even left a home she had purchased. “I could not sell it then because the ‘innocent spouse law’ said I could not sell it without him signing even though he was not on the title or mortgage,” she said. “Here, you establish residency as soon as you get a driver’s license,” Elizabeth Freels said of Washington. “They have favorable divorce laws. A plaintiff can file for divorce and get one in 90 days. I hired a lawyer just in case. She said when the judge looked at the papers and saw June of 2005, he said, ‘Don’t you mean 2015?’ Then he saw I had moved from Mississippi and said, ‘Oh, that explains it.'”David Freels was served with papers from Washington last summer. He said he could have contested the divorce, instead he let the 90 days expire, after which the divorce was final.
Elizabeth Freels said she had decided quite a while back not to even try for child support.
’21st century slavery’
Mary Smith — whose real name is not being used to protect her safety — filed for divorce last summer after she and her three children fled her husband and their home. They spent a week in a metro area shelter for abused women.
It had taken Smith a while to work up the courage to leave her marriage of only a few years, and she had a moment of panic when her husband discovered her plan.
Smith fears her husband. While she says he has only physically grabbed or shoved her, she fears that could change at any time.
“He smashes things, throws over tables, threatens, breaks stuff, curses at me, yells,” Smith said. “I had to walk on eggshells, ask permission to leave the house, beg him not to yell and do that in front of the children … My hands are shaking right now, even thinking about him, talking to you … You just wonder, ‘Is this going to be the time that raised fist comes down on you?’ …
“It was like living in a cult.”
She returned home only after he agreed to move out, although he has since “broken in,” she said. She said police have since escorted him as he retrieved things from the home.
Smith had been a homemaker before the separation, and she said her husband drained their bank accounts when she fled to the shelter. She’s worked several part-time jobs while trying to find a full-time one and has hired an attorney.
“I can’t afford her, but I’m doing it anyway,” Smith said of the attorney. “She’s being pretty patient with me. I owe thousands already and haven’t even gotten a divorce.”
Smith said that until she started reading Mississippi’s divorce laws, she didn’t realize “I basically have to have his permission to get a divorce.” She fears she’s in for a long, expensive ordeal. In the meantime, she fears for her safety.
“I had thought, maybe I would have to wait a year or something for irreconcilable differences (to be proven),” Smith said. “He’s been telling me he’s never going to sign. Our laws need to change. Being held hostage in a bad and unsafe relationship — you wouldn’t force anybody to stay in a job like that. Why have laws that hold people hostage in a bad and unsafe relationship?”
Smith noted — as have experts and advocates — that Mississippi’s law doesn’t specify domestic abuse as a grounds for divorce, and its provision for cruelty as a ground requires “clear and convincing” proof of “habitual cruelty.”
“So, according to habitual, you have to be beaten at least two or three times to get out,” Smith said.
Smith, as others have noted, said Mississippi’s antiquated divorce laws appear to have been written by men, for men.
“The fact that ‘natural impotency’ — whatever that means — is a grounds, an issue or reason for a divorce, but being a horrible abusive person is not, being violent once or maybe even twice is not — that’s some absurd manhood thing,” Smith said. “The law does not help anyone but the abusers.
“If someone’s not living with their husband, if they are afraid of them, I’m sorry, that’s not a marriage any more,” Smith said. “That’s a piece of paper that is causing 21st century slavery.”
‘It’s about control’
Sandy Middleton, director of the Center for Violence Prevention, helped arrange The Clarion-Ledger’s interview with “Mary Smith.” Middleton said Smith’s case is not peculiar. It’s run-of-the-mill.
“Victims of domestic violence suffer from our current divorce system,” Middleton said. “Frequently when women flee their abusive partners, they are unemployed and don’t have any access to justice. Domestic violence offenders will use the court to continue to abuse. Our divorce law is the hammer they use to do it … It’s very frequent that we see abusers dragging their victims through the courts for years. It’s about control, and a lot of times the only tool they have left to exert control is (the) court.
“In our state, our area, there is nowhere to go for pro bono divorce legal assistance … The volunteer lawyers don’t want to touch divorce because it’s always so long and drawn out.”
Middleton said spouses filing for divorce in abusive situations often causes a Catch-22.
“Let’s say a victim finally gets enough and calls (the) police and presses charges, simple assault,” Middleton said. “If she files for divorce before the criminal charges come up, nine times out of 10, once a judge learns there’s a divorce filing, they won’t hear the criminal case or grant a protective order because in their minds it’s all tied to the divorce. In their mind, they think it’s bogus criminal charges to help get a divorce. We see it all the time.”
Middleton said victims of abuse often “give up” when they learn how difficult and expensive a divorce will be, and they stay in the abusive home and marriage.
Deborah Bell, dean of the University of Mississippi Law School, is considered a foremost expert on Mississippi family and divorce law. Her treatise, “Bell on Mississippi Family Law,” is used by attorneys and chancery judges.
Bell has documented problems caused by Mississippi’s divorce laws and recommended changes, and lawmakers pushing for reform said they have consulted her and her work.
Bell has noted that, unlike most other areas of civil law, divorce in Mississippi “requires court-based resolution.”
“Proving grounds (for divorce) requires corroboration through witnesses or documentation, and requires understanding of the elements of the ground and the rules of evidence. In other states, obtaining a divorce is a more simple process and more easily navigated without an attorney,” Bell said.
Mississippi courts, Bell said, also still allow “archaic” common-law defenses when considering proof of grounds for divorce.
“Under Mississippi law, a spouse who condones, or forgives marital fault can’t get a divorce unless the conduct happens again,” Bell said. “In the context of domestic violence, a survivor who leaves home — perhaps to go to a shelter — then returns home has ‘condoned’ the violence. She has lost her ground for divorce until the violence happens again. This puts a survivor in the untenable position of needing to remain in the marriage — and in danger — to secure grounds for divorce. The previous abuse is not enough. She has to wait for it to happen again.”
Bell has recommended Mississippi “adopt a middle ground between short-term, no-fault divorce and the current fault-based system.” She said this could be done by creating a new ground based on long-term separation.
“This would at least provide an eventual route to divorce for one whose spouse will not agree,” Bell said.
Political ‘hair ball’
Middleton’s group, along with other shelters and agencies in the Mississippi Coalition Against Domestic violence, is working with lawmakers this session to pass divorce reform legislation.
Sens. Sally Doty, Brice Wiggins, Sean Tindell — all attorneys — and others are pushing two bills, both of which have passed the full Senate and are pending in the House. Similar measures have died in the past, including last year.
One, authored by Doty, R-Brookhaven, would add “including domestic abuse” to the “cruel and inhuman treatment” grounds for divorce. A bill she authored last year to add “domestic violence” as a grounds died on the last day of the session when it got tangled up in debate over adding lengthy separation as grounds, along with other politics.
“I want to make clear that domestic violence is unacceptable, and we changed it to say domestic abuse to cover a few more things, such as social isolation and financial exploitation,” Doty said. “By domestic abuse, it’s not necessarily a conviction for violence, but you can put on your evidence of abuse. It opens it up a little bit.”
Tindell, R-Gulfport, has authored a bill that would create “bona fide separation” of two or more years as a grounds for divorce — a step toward a true no-fault provision.
Doty said problems caused by Mississippi’s divorce laws and the politics of trying to change them “is a real hair ball.”
“We are a very conservative, religious state, and no one wants to be seen as being for divorce,” Doty said. “I am not for divorce at all. I am divorced, and it is the great failure and tragedy of my life, I feel. But the reality is, people get divorced.”
Doty said Mississippi’s high divorce rate begs the question: “Are our stringent laws really helping us?”
Doty said to get the separation-as-grounds bill passed out of committee and before the full Senate, it was amended to apply only to couples who have lived apart two years and have no children younger than 20.
Doty said she’s hopeful both measures will pass and says they are “incremental” improvements. She says they are probably at the bounds of what can realistically pass the conservative Mississippi Legislature in the near future.
“I don’t think Mississippi is ready to take the step for true no-fault divorce,” Doty said. “Politically, I just don’t think we could pass it.”
‘A biblical commitment’
The two-year separation bill, even after being watered down to exclude couples with children, has its detractors. The vote for it in the Senate was 44-8.
Sen. Angela Burks Hill, R-Picayune, voted against it.
“I did vote for the domestic violence bill,” Hill said. “But I don’t know that I want to go so far as saying that two years of legal separation is grounds … Marriage is a big commitment, and I still believe that the Bible defines it whether the government says anything or not. I’m just not certain that bill lines up with what I believe is a biblical commitment.”
Burks said Mississippi’s high divorce rate “tells me that they are already finding plenty of reasons and grounds to divorce.” She said she believes the domestic abuse bill already lines up with the cruel and inhuman grounds, so she didn’t see that as much of a change.
Hill noted she authored a divorce reform bill herself this session, but it died. Hill, who has pushed for stronger laws on animal cruelty, authored a bill that would have allowed pets to be placed in domestic abuse protection orders. She said 24 other states do this, and domestic abuse experts say pets are often held hostage in divorce and can cause spouses to stay in abusive situations.
Sen. Chris McDaniel, R-Ellisville, also voted against the separation-as-grounds measure. He said he believes the “desertion” provision in the law already speaks to the issue and he opposes “allowing an individual to just leave a marriage to create a cause.”
But the desertion grounds specifies “willful, continued and obstinate desertion for the space of one year,” and in practice is hard to prove in court if the deserting spouse doesn’t admit to it. In many cases, a spouse can return briefly and “reset” the clock.
“There’s actually a larger issue here: Whether or not the state should be involved in this arena, in marriage, at all,” McDaniel, an attorney, said. “… Why should the state have to grant permission for someone to marry?”
But given the state is in the marriage and divorce business, McDaniel said, lawmakers shouldn’t be changing the terms of the contract midstream.
“I think there are sufficient enough protections in the law right now, particularly with domestic abuse,” McDaniel said.
Intersection of religion, government
Doty and others say various religious lobbies have in the past fought — usually behind the scenes — against divorce law reforms.
The American Family Association last year sent an alert message to its members to call lawmakers when they were considering adding separation as grounds for divorce language to Doty’s domestic violence bill. The message said: “No-fault divorce has potentially destructive implications for Mississippi families and society, and the state should be encouraging stable families, not making it easier for married spouses to terminate their vows … No-fault divorce sets aside any notion of obligation or duty toward children in the family.”
Supporters of reform have to walk a fine line near the intersection of religion and government with marriage and divorce.
“We have members of our coalition and leaders of various shelters who are very serious people of faith and don’t take divorce lightly,” said Brandon Jones, vice president of the state Coalition Against Domestic Violence and a former lawmaker. “Our coalition has an appreciation for marriage and that you don’t go into it or get out of it lightly. But what we are talking about is a system being manipulated. Abusers know the law, and they use it. Any law that would place a family in this type crisis and not give them an escape hatch and reasonable way out is not just.”
Middleton said years of seeing spouses and children in terrible abusive situations then running up against religious opposition to change at the Capitol has frustrated her.
“I’m a Christian,” Middleton said. “I’m a preacher’s daughter. It’s frustrating for me when we have to come down to the Legislature and fight religious organizations over this. We have struggled with it for years …
“I understand the desire to keep the family together. But when the home is violent and they can’t get out, you are committing children to being raised in some extreme violent situations, deal with PTSD or other long-term psychological problems — that is not something to be taken lightly.”
Contact Geoff Pender at 601-961-7266 or firstname.lastname@example.org. Follow him on Twitter.