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Family Law
University of Mississippi School of Law
Davis, Samuel M.

Bell on Mississippi Family Law
Professor Sam Davis
Fall 2012
I.        Chapters 1 & 2: The Marriage Relationship
a.        Marriage = man & woman agree to enter into a state-regulated binding commitment
                              i.      Individual Benefits – identity, support, in-laws, paternity, tax
                            ii.      Societal Benefits – financial (lack of welfare), children, stability
b.       The Right to Marry (p. 3-12)
– Guaranteed by the Const, which sets parameters for state regulation
                              i.      Presumptions = parties are eligible, requirements are met, & official was valid
                            ii.      Regulation of Entry into Marriage – a marriage is valid if the parties are (1) eligible under state law; (2) comply with formal requirements for marriage; & (3) enter into marriage voluntarily
1.       Eligibility:
a.        Kinship – marrying a family member = void
                                                                                                         i.      Children = illegitimate
b.       Bigamous – marrying if already married = void
                                                                                                         i.      Children – legitimate
                                                                                                       ii.      Subsequent divorce of prior marriage doesn’t make 2nd one valid
c.        Age – marriage by an underage party = voidable
                                                                                                         i.      At least age 15 females & 17 for males in Miss. (likely unconst after Orr v. Orr)
                                                                                                       ii.      Age requirement may be waived if (1) good cause AND (2) parental consent
                                                                                                     iii.      Marriage may be ratified by underage spouse
                                                                                                     iv.      May not be attacked collaterally by 3rd parties
d.       Same Sex – many states ban it and many deny full faith and credit recognition of other states that do allow it
                                                                                                         i.      Trend = states moving toward recognizing same-sex unions (6 states allow it)
e.        Mental Capacity – party is incompetent at time of marriage and:
                                                                                                         i.      If suit is filed within 6 months = annulled
                                                                                                       ii.      If other person was unaware = divorce
                                                                                                     iii.      May not be attacked collaterally by 3rd parties
f.         Physical Capacity – incurable impotency or physical incapability (neither is defined in case law)
                                                                                                         i.      Physical incapability – must file suit within 6 months to annul; may be ratified
                                                                                                       ii.      Impotency – no time for annulment; no mention of ratification
2.       Formal Requirements:
a.        CL marriage – abolished in 1956, but prior CL marriages are still valid
b.       Ceremonial marriage w a license – what’s recognized in most states
                                                                                                         i.      May be annulled if parties fail to comply with licensing requirements
3.       Consent to Marry:
a.        Fraud – annulled if one party has been fraudulently induced to enter the marriage
                                                                                                         i.      Suit must be filed within 6 months of the time the fraud was or should have been discovered
                                                                                                       ii.      Marriage may be ratified by defrauded party
                                                                                                     iii.      Two Tests:
1.       Essentials Test (narrow) – fraud goes to the essence of marriage
2.       But-For Test (broad) – fraud is material = defrauded party would not have entered into marriage but for misrepresentation
b.       Duress – annulled if one party entered into it under duress (i.e. shotgun wedding)
                                                                                                         i.      Suit must be filed within 6 months of marriage
                                                                                                       ii.      May be ratified by party acting under duress
                                                                                                     iii.      Miss. Cts require proof by clear and convincing evidence that it “dominated throughout the transaction so as to disable the one influenced from acting as a free agent at the time of the marriage”
c.        Limited Purpose Marriage (i.e. legitimizing a child or securing immigration status without intending to live as husband and wife)
                                                                                                         i.      Courts frequently refuse to annul these
d.       Marriage in Jest: courts split = some refuse to annul / some allow it (particularly if not consummated)
                                                                                                         i.      Ga S. Ct example: no annulment of the marriage of two teenagers who married on a dare – they were old enough to marry, there was no fraud, and marriages” cannot be set aside lightly and without cause”
                                                                                                       ii.      Miss. annulment statute doesn’t mention this under annulment
c.        Legal Status of Women in Marriage (p. 12-14)
                              i.      CL = women became legal non-entities at marriage
                            ii.      Marital Women’s Property Act (1839) – allowed women to manage own property and contracts
                          iii.      Orr v. Orr (1979) – held that gender distinctions were unconstitutional
1.       Miss. Response = Miss. legislature equalized statutory support rights by providing for gender-neutral alimony. However, court decisions still often refer to separate maintenance, a judicial remedy for lack of support, as a remedy for wives.
2.       The Marital Unity Fiction: courts have rejected the notion of marital unity as a reason for banning tort actions bw spouses and spouses are competent to testify against each other
d.       Property Rights Within Marriage (p. 14-18)
                              i.      Equitable Distribution: during marriage, the title system allocates ownership, use, and control of property to the spouse who holds title; after divorce, then their property rights are governed by equitable distribution, which allows for division regardless of who held title
1.       Homestead – land & buildings owned & occupied as family’s residence; exempted from title system
a.        No transfer without consent; at death of spouse holding title, surviving spouse gets life estate in homestead until remarriage; homestead exemption laws protect marital home from sale by creditors
                            ii.      Joint Ownership
1.       Presumptions
a.        If owning spouse transfers property into the joint names of both spouses, law presumes gift was ½ of property to each
b.       Conveyances to husband and wife create estates in common unless manifest intent for joint tenancy or tenancy in entirety
2.       Tenancy in Common – allows spouses to freely transfer or mortgage their share of the property
3.       Joint Tenancy – right of survivorship – surviving spouse is sole owner by operation of law
4.       Tenancy by Entirety – only available to married parties; cannot survive divorce
e.        Rights of Inheritances Between Spouses – modern laws provide surviving spouse with a statutory share of the deceased spouse’s estate (in Miss., CL is replaced by statutes)
                              i.      Intestacy – no will = estate divided equally bw decedent’s spouse & children; spouse also receives life estate in homestead as long as unmarried, but no requirement for spouse to actually life on the property
                            ii.      Will – spouse is free to transfer property at death based on choice
1.       Spouse who receives less than the statutory share can renounce
2.       If spouse isn’t provided for at all in the will, it is automatically renounced
                          iii.      One-year Allowance for Expenses – valid claim regardless of will or intestacy
f.         Duty of Support (p. 19-21; 32-39)
                              i.      Change in Law:
1.       CL = husband supported wife and wife provided services
2.       Miss. Law Today – criminalizes non-support of children, but duty of support for spouse is only enforced through separate maintenance action
                            ii.      Intact Marriage – state will not step in and enforce duty of support here
1.       Direct Support – rarely ordered out of deference to family privacy and reluctance to become involved in day-to-day domestic disputes
a.        McGuire v. McGuire (Nebraska) – court refused to order wealthy husband to provide basic conveniences to wife such as indoor plumbing.
b.       No Miss. case was found
2.       Doctrine of Necessaries
a.        CL – a husband that failed to provide basic necessities for his family was liable to a merchant who provided those necessities (merchant could sue to recover)
b.       Miss. Sp. Ct. abolished it in 1993 – no spousal liability for the other’s debts in the absence of an express agreement to assume the obligation
                          iii.      Separate Maintenance – when spouses split up, courts may enforce spousal duty of support through this award (judicial command to resume cohabitation OR provide suitable maintenance to wife i.e. specific expenses, child support, etc.)
1.       Orr v. Orr = gender distinction in this statute unconst; enforceable against both sexes now. But after no-fault divorce developed, this action isn’t used as much
2.       The award:
a.        Petitioner must show his/her conduct did not materially contribute to separation and that there was a willful abandonment and a failure to provide support
b.       Spouse is entitled to live at standard of marriage but without unduly depleting the other’s estate
                                                                                                         i.      Diehl v. Diehl, 29 So.3d 153 (Miss. Ct. App. 2010) – wife not at fault, husband left her and took funds from a joint account. Wife was awarded $1,800 in separate maintenance without taking into account her separate funds of $67K or the fact that she supported her adult daughter in a separate condo. Both were part of her marital standard of living
c.        Partition of jointly owned property is acceptable, but no equitable distribution until divorce and no lump sum support
d.       Custody & visitation can be included
e.        Court does not have power to order couple to live together
f.         Modification if material change in either party’s circumstances
g.        Termination if parties reconcile, payor makes good faith reconciliation efforts and recipient refuses, OR either party dies
h.       Order may res judicata some issues in subsequent divorce
g.        Tort Actions (p. 24-29)
– Rooted in CL = marriage created and destroyed rights of action based on “oneness” of marriage
                              i.      Tort Immunity applies to any member of the immediate family – justified as a means of preserving marital harmony and family unity; has been virtually abolished everywhere
1.       Originated in Miss.
2.       In 1988 Miss. S. Ct abolished inter-spousal tort immunity = spouse may sue another spouse for intention torts and/or negligent acts in Miss.
                            ii.      Tort Actions against 3rd parties
1.       Loss of Consortium – action for loss of spouse’s services and companionship as a result of injuries caused by 3rd party (i.e. love, affection, aid, support, sex, comfort, etc);
a.        Damages: can’t get damages for loss of financial assistance or medical costs since injured spouse’s action includes recovery for those
2.       Wrongful Death Actions – when a spouse dies due to 3rd party’s actions, damages can be sought for what would have been recovered by decedent for medical and funeral ex

er state may divorce in a non-recognition state and (2) whether a married same-sex couple is entitled to state benefits in a non-recognition state
                                                                                                         i.      CL Rule – states will recognize a marriage that is valid in the state in which it was contracted unless it violates a significant public policy
1.       Miss follows this and has extended recognition to marriages between parties not eligible to marry in Miss.
e.        Interstate Recognition to Divorce – a couple married in a recognition state, but who have moved to a non-recognition state may be unable to obtain a divorce anywhere
                                                                                                         i.      Separation agreements – unmarried couples, including same-sex partners, may arrange their financial affairs by agreement
                                                                                                       ii.      A couple is not entitled to rights based on the law of the state in which they were joined
II.       Chapters 3 & 4: Marriage Dissolution
a.        Annulment = declares the marriage never existed (generally no financial remedies after annulment)
                              i.      Generally
1.       England’s civil courts had no power to annul marriages prior to 1857
2.       Courts are authorized by statute to declare annulment (grounds vary from state to state)
                            ii.      Grounds
1.       Bigamy or Kinship Marriages = Void: never existed; can be raised at any time (even if one party dies); others can attack it (3rd parties); no ratification by parties
2.       Physical or Mental Incapacity, Pregnancy by Another, Age, Lack of Consent, Failure to Obtain a license = Voidable: may be ratified (by continuing relationship); only the parties may attack (no 3rd parties)
                          iii.      Defenses
1.       Statute of Limitations
a.        Age, lack of mental/physical capacity, lack of consent due to fraud or duress, or wife’s pregnancy by another = w/in 6 months from time it is or should have been discovered
b.       Insanity = w/in 6 months of marriage
c.        Licensure requirements or impotency = No SOL
d.       Void Marriages (bigamy or incest) = brought at any time
2.       Ratification – if party continues cohabitation w/ knowledge of impediment. § 93-7-3. 
a.        Subject to ratification defense = Age, lack of mental or physical capacity, lack of consent due to fraud or duress, or pregnancy by another =
b.       Not subject to ratification defense = marriages invalid because of impotency, mental illness, or failure to meet license requirements (not mentioned in ratification statute.
c.        There are not any Miss cases on ratification.
3.       Laches – unreasonable delay
a.        Recognized in 1 case = Stanley v. Stanley (Miss. 1947) – wife waited 50 years until her husband died to challenge bigamous marriage. Her suit was barred
4.       Estoppel
a.        Williams v. Johnston (Miss. 1927) – Spouse who enters 2nd marriage w/o obtaining divorce may be estopped from seeking to annul 2nd marriage on basis of bigamy. He cannot annul the second marriage in order to inherit from his first wife.
b.       Enis v. State (Miss. 1981) – estoppel is not a defense to action to annul incestuous marriage. Husband attacked validity of a separate maintenance award to his wife, who was also his niece. **Shows another diff bw bigamous & incestuous marriages
                          iv.      Effect of annulment:
1.       Property & Support Rights: spouses of annulled marriage aren’t entitled to alimony; the rights of property division are generally the same as those of cohabitants
a.        Property acquired through joint efforts may be divided by court – but Davis points out that the innocent party “requirement” has created an inconsistency in the Mississippi courts
                                                                                                         i.      Chrismond seemed to indicate that only an innocent spouse would have certain property rights arising out of a void marriage; but in 2010, in Cotton v. Cotton, the non-innocent party did get some property rights. Cotton (Miss. Ct. App. 2010) (the wife, who had never divorced her first husband, received an equitable distribution of assets upon annulment of second 37 year marriage).
2.       Children – governed by the same rules that apply to children of divorce with the exception of marriages annulled bc of incest, children of annulled marriages are considered legitimate
3.       Retroactivity – annulments relate back erasing any legal effect of the marriage – relation-back doctrine to derive
a.        Miss. S. Ct. held that alimony payments did not resum upon annulment of a second marriage; by remarrying, the wife elected to look to her new husband for support
                            v.      annulment Jurisdiction & Procedure: in chancery court; at least 1 party must be domiciled in the forum state. Annulment may be filed in D’s county of residence, county where license was issued, or P’s county of residence if D not resident of MS