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Family Law
University of Mississippi School of Law
Bell, Deborah H.

Professor Debbie Bell
Family Law Outline
Spring 2009
University of Mississppi
 
Family Law Outline
 
THE MARRIAGE RELATIONSHIP:
 
An agreement between a man and a woman to enter into a legal union.
Legal union that is recognized & regulated by the state
 
Conflicts of Laws
§ Two exceptions to the general rule of recognition of out-of-state marriages:
1.      No recognition if out-of-state marriage violates a significant public policy of that state.
2.      No recognition of residents if they marry in another state to evade home state laws. 
 
Marriage: not valid unless parties are (1) eligible to marry, (2) comply with formal requirements, and (3) enter the marriage voluntarily
 
Eligibility
§ Note: Marriages that are bigamous, incestuous, or same-sex are automatically void and able to be attacked by third parties at any time (NO SOL). Others can only be attacked by the parties, or representatives of the parties and are waived if not attached within 6 mos or if innocent party knew.
(1)   Kinship Marriages – incestuous marriages are void. No one may marry his or her parent, grandparent, step-parent or step-grandparent, adoptive parent, sibling, half-sibling, aunt, uncle, first cousin, or his or her child’s widow or widower.
·         Children are illegitimate, even if marriage was entered to in good faith. 
(2)   Bigamous Marriages – second marriage is void if one of the parties is already legally married. Most recent marriage contract presumed valid. 1st spouse must prove 1st marriage never ended.
·         Children of bigamous marriages are legitimate.
(3)   Age – in Mississippi, females under 15 and males under 17 cannot get married (suspect). The marriage is voidable, but cannot be attacked collaterally or by third parties.
·         Age requirement may be waived by showing good cause and getting parent’s consent.
(4)   Gender – many states deny full faith and credit to same sex marriages valid in other states through the Defense of Marriage Act (HI, VT, MA, CA).
(5)   Mental Capacity – when party is incompetent at time of marriage, marriage can be annulled if suit is filed w/in 6 months, but cannot be attacked collaterally. MS SC has stated that there ought to be enough understanding to recognize the duties and responsibilities of marriage relationship.
(6)   Physical Capacity – must be able to have sexual relationship at time of marriage (impotency, not sterility).
 
Formal Marriage Requirements – without both, marriage is voidable
1.      License- a sworn statement that is on file for 3 days. Parties must also submit proof of age and a medical certificate (for syphilis) dating w/in 30 days of the application.
2.      Ceremony/Solemnization: performed by an authorized person
3.      MS no longer recognizes common law marriage (intent, holding selves out as husband and wife, & cohabitation), but recognizes those from before abolished & from states where CL marriages are still valid (give full faith & credit).
 
Consent- must be voluntary entry into marriage; annulments may be granted for the following:
§ Fraud – suit must be filed w/in 6 months of marriage. Misrepresentations about personal characteristics are not grounds for annulment. Fraud is waived if party knew of fraud at time of marriage. Possible grounds – wife pregnant by another w/o telling husband, later refusing to have kids after claiming to want kids, but not if claimed to be pregnant & actually not.
o   Essentials test- requires fraud to go to the “essence” of the marriage – i.e. relates to sexual obligations. (misrepresentations about impotency, sterility, venereal disease, willingness to have children, etc.)
o   ‘But for’ test (broader test- only 2 states have it) – fraud was material and party would not have gotten married ‘but for’ the fraudulent misrepresentation. This could cover drug addiction/misrepresentations about job/income, etc.
§ Duress – one party marries under duress (i.e, force). Suit must be filed w/in 6 months of marriage. Clear and convincing evidence (that duress was present throughout marriage) is burden of proof in MS.
§ Marriage in Jest – one or both enter marriage as a joke. Some courts will grant annulment (particularly if unconsummated), but many will not.
§   Limited purpose marriage- (i.e. legitimizing a child or securing immigration status) can be set aside. Courts tend to refuse annulment if limited purpose was legal & did not violate public policy.
 
VOID = no declaration needed and no time limit – invalid for all purposes and all time
VOIDABLE = valid until attacked (6 mos. after realizing to set aside)
Bigamous
Lack of mental capacity
Incestuous
Lack of physical capacity
Same-sex marriages
Minority
 
Pregnant by another
 
Failure to comply with formalities
 
Lack of consent – fraud, duress
 
Annulment
·         In annulment, it’s as though marriage never existed. No property division and no alimony. If any property was accumulated during marriage, will go to whoever holds title to it.
·         With respect to children (i.e., child support/custody), rules are the same regardless of whether separation is effected by annulment or divorce. Child custody/support rules are the same even with regard to unmarried heterosexual couples.
 
RIGHTS AND DUTIES WITHIN THE MARRIAGE:
 
Property Rights Between Spouses
Title System -spouse that has the title has control. Majority system (80%, including Mississippi during marriage). You have no claim to your spouse’s assets, and your creditors cannot go after your spouse’s assets.   Property can be used to satisfy title holder’s debt.
At death, title holder could will to anyone they wanted, so long as wife got child’s share.
2 exceptions
Homestead property – spouse holding title to homestead cannot sell, lease, or encumber homestead w/o spouse’s consent. Important rights. Survive death. 
Tenancy by the entirety – type of concurrent ownership available only to married couples; right of survivorship: if one dies, goes to other; neither spouse can sever w/o other’s consent; subsequent creditors cannot attach. Neither spouse can transfer interest. Usually property is owned jointly. Joint title presumption, rebutted by clear and convincing evidence. 
Many title states created equitable distribution to help the inequity title system creates. At divorce, can equitably divide marital property (all assets earned during marriage.)
MS is a dual property state. It has title system for intact couples, and an equitable distribution system for divorcing couples.
If spouse begins transferring assets pre-divorce, the courts may look back at that period to determine if there was fraud.
Community Property System – (20% of states) each spouse is considered to own ½ of all property earned during the marriage. Idea that all money earned is done for the marital partnership. Creditors for either can reach that person’s half. If husband dies, his ½ passes through his estate but her half is still hers. At divorce, each leaves with their half. 
 
Duty of Support (Chapter 2)
Mississippi criminalizes not supporting your children, but not your spouse.
No duty in an intact marriage. (court overloaded & right of privacy)
Exception: MS used to have doctrine of necessaries, but does not have anymore. Said if husband failed to provide for basic necessaries, then merchant could sue for providing items.
Duty of Support is enforceable in two instances:
When the wife has been abandoned by her husband
Duty of separate maintenance – when courts award monthly support to a wife who has been abandoned w/o fault of her own to the standard he/she would live if she was still married (still used in M

den of proof
(2)   Usually clear and convincing evidence standard
(3)   For habitual cruel and inhumane treatment – by a preponderance of the evidence
·         Divorce testimony must be supported by corroborating evidence – only excused if not reasonably possible b/c of the nature of Δ’s conduct or the parties’ isolation. 
Divorce is granted to the most innocent party. 
 
12 Fault Based Grounds for Divorce:
Those that show there cannot be a normal marital relationship:
Natural Impotency – incurable inability to engage in sexual intercourse.
Insanity at the time of the marriage. Δ must have been insane at the time of the marriage and the π must not have known about it. à no changed to mental illness (2008 amendment)
Incurable insanity- insane spouse must have been confined in an institution for at least 3 years immediately preceding the action.
Linked to capacity to enter marriage:
Bigamy – divorce can be granted by the innocent spouse or annulled at any time by either party.
Kinship w/in the prohibited degree (incest)
Matters relating to the sexual relationship:
Adultery
§ Must make specific findings of fact (proof excluding any other reasonable explanation)
§ Direct Proof: adultery established if Δ admits to it or if other direct proof/other testimony directly establishing the conduct is offered
§ Circumstantial proof allowed: b/c of secretive nature, direct proof of adultery is not required
Show a generally adulterous nature & r’ble opportunity to satisfy the infatuation.
§ MS has not addressed whether same-sex relationships/sexual acts with someone of the same sex constitutes adultery.
Pregnancy of wife at the time of marriage by someone else w/o the husband’s knowledge.
Those that make the marriage difficult:
Habitual drunkenness
§ Plaintiff must prove
o   Δ was habitually or frequently drunk
o   An adverse effect on the marriage
o   Habit continued at the time of the trial
Habitual and excessive use of illegal drugs or misuse of prescription drugs. Habitual use is shown by proof that a Δ uses drugs “customarily and frequently, rather than for occasional use.” Plaintiff must show the Δ is so addicted “that he can’t control his appetite for drugs” (has to affect the ability to function).  Use must continue at the time of the suit.
Habitual Cruel and Inhuman Treatment
§ Plaintiff must
1)      Show conduct by the Δ that meets the stringent test for cruelty (put spouse in r’ble apprehension of danger to life, limb, or health; or be unnatural and revolting)
2)      Prove a causal connection b/w the conduct and the P’s physical and mental health, and
3)      Provide independent corroborating evidence of conduct (medical/psych. testimony)
§ Includes physical violence, verbal or emotional abuse conduct includes unfounded accusations, refusal of sex, unendurable aberrant sexual behavior, hiding a child, etc.
Those that make cohabitation impossible:
Imprisonment
Desertion for one year – must be willful, continued, and obstinate desertion for the space of one year to be grounds for divorce.
§ Plaintiff must prove