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

Family Law Outline
Chapter 1: The Marriage Relationship
Right to marry
State regulations that significantly interfere with the right to marry must advance important state interests and be closely tailored to meet those interests (strict scrutiny)
Rational relationship test for regulations that do not significantly interfere
Parties are eligible to marry
Parties complied with formal marriage requirements
Person officiating was authorized to perform marriages
These presumptions can be described as the marriage being valid and the burden of proof is on the party attacking validity
Recognition of marriage
States usually will recognize a marriage valid in another state unless
It violates a significant public policy of the state
Its own residents who marry in another state to evade home state laws
Mississippi does not recognize same-sex marriages or incestuous marriages
Regulation of entry into marriage
A marriage is not valid unless the parties
Are eligible to marry under state law
Cannot marry parent, grandparent, step parent or grandparent, adoptive parent, sibling, half-sibling, aunt, uncle, first cousin, or child’s widow
If one party is already legally married, the marriage can be annulled/divorced
The first spouse has to prove that the marriage was never dissolved
Divorce from the first (while married to the second) doesn’t make the second legal
Mississippi requires females to be 15 and males to be 17
May be waived by chancery, circuit, or county court on a showing of good cause and parental consent
This type is voidable, can be ratified by underage spouse
Marriage can be annulled if one party is incompetent at time of marriage, if brought by one party within 6 months
Can’t be attacked collaterally by 3rd parties
Party claiming validity must prove disability didn’t exist at marriage
Marriage may be annulled by physical incapability
Incurable impotence which is the inability to engage in intercourse
Not sterility or infertility
Annulment must be filed within 6 months of discovery or when it should have been discovered
Comply with formal prerequisites for marriage
Mississippi abolished common law marriage in 1956
Does recognize common law marriage if valid in the state where contracted
Means parties agreement to be married followed by cohabitation
Ceremonial marriage means with a license and a ceremony
License requires parties to file a written, sown application with circuit clerk of the county stating names, ages, addresses, and names and addresses of parents
Ceremony has to be performed by an authorized person
May be annulled if parties don’t follow license requirements
Enter into the marriage voluntarily
Both parties must consent to marriage free of duress or coercion
Marriage may be set aside if 1 party was fraudulently induced to enter into the marriage
Action must be filed within 6 months of when it was or should have been discovered
Party who was defrauded may ratify marriage
Test for frauds:
Old view (essentials test) was that fraud had to go to the essence of the marriage (sexual obligations)
This allowed annulment for misrepresentations about impotency, sterility, venereal disease, willingness to have children and consummate the marriage
Broad test (but for test) allows annulment if fraud was material and the party wouldn’t have entered into the marriage but for the misrepresentation
Mississippi requires proof by clear and convincing evidence that duress dominated which disabled the party influenced from acting as a free agent
Rights and duties within marriage
Common law
Disability of overture didn’t allow married women the power to contract, to sue and be sued, and to manage and control their own property
Wife received 1/3 interest in husband’s real property, husband received a life estate in all property owned by wife
Spouses could not sue each other in tort or testify against each other
Married Women’s Property Act
Mississippi in 1839 said that women could own real and personal property
Current version says that married women have the same rights as unmarried women to own property, to contract, to sue and be sued
Courts have now rejected marital unity as a reason for banning tort actions between spouses
Spouses are no longer incompetent to testify against each other for all purposes
Property rights between spouses
Ownership, use, and control
Majority (Mississippi) uses the title system
Except for the homestead, the spouse who holds title has ownership, use, and control of the property
The other spouse has no voice in the disposition or use of property
Homestead property
A spouse who holds title cannot alone convey, mortgage, or encumber the property as long as the couple lives together
Sale, lease, mortgage, deed or trust or other interest is void without other spouse’s consent
Spouse’s right to object is waived if he/she abandons the home but not if wrongfully ousted
At death of spouse holding title, the other spouse receives a life estate until remarriage
Joint ownership
If owning spouse transfers property into both names, it is presumed that there was a gift of ½ of the property
To create a tenancy by the entirety or a joint tenancy requires precise drafting
Tenancy in common
Spouses who hold property as tenants in common may transfer or mortgage their share of the property
Joint tenancy
When one joint tenant dies, the other owner becomes the sole owner
The property may be transferred by 1 party while alive which will:
Sever the joint tenancy
Destroy the right of survivorship
Create a tenancy in common between the transferee and the remaining owner
Tenancy by the entirety
Only can be done by married persons
Both parties must consent to transfer, mortgage, or sever the property
There is a right of survivorship to the other spouse
Rights of inheritance between spouses
In the absence of a will, an estate is divided equally between the deceased’s children and spouse
If no children, spouse gets the entire estate
Can leave property to anyone, but if spouse receives less than a statutory child’s share, that spouse may renounce the will
If no provision for the spouse, renunciation is automatic
Duty of support
Mississippi currently criminalizes non-support of children but not of spouse
If parties separate, court can award separate maintenance
This is a judicial command to resume cohabitation or provide suitable maintenance
A party is not entitled to support if their conduct materially contributed to the separation
This applies to men and women (unilateral duty to support)
Tort actions
Between spouses
Reasons for immunity were preserving marital harmony and preventing fraud by spouses on insurance claims
Mississippi abolished immunity in 1988
Spouses can sue for intentional and negligent torts
Some courts allow tort damages in divorce actions; others require separate actions
Against 3rd parties
Loss of consortium
Mississippi allowed this in 1968
Damages are limited to recovery for
Loss of society and companionship
Sexual relationship
And physical assistance
Damages don’t include
Loss of financial assistance
Or medical costs
Action survives the plaintiff’s death
Wrongful death
Spouse may bring action for damages that could have been recovered by the decedent and for medical and funeral expenses
Damages are divided equally between the deceased’s spouse and children
Heart balm actions
Alienation of affections
Allows plaintiff whose spouse’s affection have been diverted to recover damages for responsible 3rd party
Must show
Wrongful conduct by 3rd party
Loss of spouse’s affection
And a causal connection between the conduct and the loss
Damages include
Loss of consortium
Physical and emotional injuries
Lost wages
Medical bills
Private investigator’s fess
And attorney fees
Statute of limitations is 3 years and begins to run when the loss of affection is accomplished
Criminal conversation
Arose from a single act of adultery
Mississippi abolished this in 1992 because
No defense is available against the claim
The action may provide the plaintiff whose marriage is already destroyed with a windfall
And the rights of consortium are already protected by the alienation of affection tort
Rights between unmarried parties
Equitable distribution
Usually does not apply to property titled in the other party’s name and accumulated solely through their efforts
Has been applied to division of assets accumulated during cohabitation when both worked outside the home and contributed income and household services
Even if the court allows equitable distribution of the property, it most likely will not award alimony payments
Putative spouse doctrine
Allows an otherwise invalid marriage to be enforced when the marriage was contracted in good faith
Arises when 1 or both parties were unaware of an impediment to the marriage or failure to comply with formal requirements
Child support and custody
The party is liable and enjoys the same rights as a father of a child born of a marriage
Once a father acknowledges a child, he is on equal footing as the mother with regard to parental rights
Chapter 3: Annulment
Void vs. voidable
Void means that marriage cannot be ratified by the parties and may be challenged at any time, by parties or 3rd parties
Voidable marriage may be ratified by the parties and suits to challenge the marriage can only be brought b the parties. Can’t be attacked collaterally or after death.
Void marriages
Either spouse may annul, but only innocent spouse may obtain a divorce
Kinship within the prohibited degree
Either party may annul or divorce
Voidable marriages
Incurable impotency
Lack of physical capacity
Pregnancy of wife by another
Lack of consent
Failure to obtain a license
Defenses to annulment
Statute of limitations
Must be brought within 6 months of the time the ground is discovered; except for insanity (it must be brought within 6 months of marriage)
Property rights
Spouses are not entitled to spousal support or distribution of marital property
Chapter 4: Grounds for Divorce
Divorce reform in Mississippi
1976 enacted irreconcilable differences divorce
In the minority in requiring both spouses consent for irreconcilable differences divorce
If no consent, fault-based system applies
For both fault-based and irreconcilable differences divorce, 1 of the parties must have been domiciled in the state for 6 months
For fault-based, a divorce may be granted with personal jurisdiction over the defendant
For irreconcilable differences, both parties must be before the court
Fault-based grounds
·         General rules
o        No default divorce
§         Even if defendant fails to answer, plaintiff must still prove elements of the case
o        Party seeking divorce has the burden of proof
§         Plaintiff must prove grounds by clear and convincing evidence
§         Exceptions
·         Mississippi in 1974 lowered the standard to a preponderance of the evidence for habitual cruel and inhuman treatment
o        Plaintiff must present corroborating evidence that should convince a prudent person that the plaintiff’s testimony is true and not the exaggerated product of a desire for divorce
§         May be provided through
·         Testimony of friends and family
·         Private investigators
·         Taped recordings of conversations
·         Medical or mental health professionals
·         The defendant’s testimony
·         Or the defendant’s paramour’s testimony
o        Only the injured party may seek a divorce (except with incest)
o        If both parties prove grounds, the court must determine which party’s conduct caused the separation or whose fault was greater and then grant the divorce to the other party
·         12 grounds for divorce
o        Natural impotency
§         Impotent spouse cannot sue for divorce
·         May annul based on incurable impotency
§         Has been defined as an incurable inability to engage in sexual intercourse, not an inability to procreate
§         Some courts have said that the condition must exist at time of marriage as well as separation
o        Adultery
§         Defined as voluntary sexu

ce of other conduct
o        Unfounded accusations
§         Accusations of infidelity may constitute cruelty if they are clearly unfounded
§         Doesn’t apply to accusations made in good faith although disproved
o        Refusal to have sexual relations
§         Must be inexcusable, long continued refusal
§         Facts must be extreme for it to amount to cruelty
o        Aberrant sexual behavior
§         Sexual behavior that is repugnant to the plaintiff and makes the marriage unendurable may be grounds
o        Hiding a child
§         Refusal to let spouse see children
§         Conduct that has been found as cruel in combination with other conduct
·         Abusive language
·         Constant criticism
·         Dehumanizing treatment
·         Alcohol or drug problems
·         Abusive conduct toward children, etc (pg. 78)
§         Inability to live together has not been recognized as grounds for divorce
·         Courts have refused to approve divorce based on
o        Quarreling
o        Constant nagging
o        Name-calling
o        Obnoxious and selfish behavior
o        Extreme criticism
o        Controlling behavior, etc (pg. 79, 80)
o        Insanity
§         Plaintiff must show that the defendant lacked the capacity on the date of the marriage
·         Intermittent bouts of mental illness is not enough
§         Pre-marital knowledge bars the divorce
·         Plaintiff is assumed to have accepted the condition
·         Knowledge must be actual and not inferred
§         Spouse’s failure to seek divorce within a reasonable time after discovering the condition indicates acceptance
o        Bigamy
§         Divorce or annulment is available
·         Can be granted at any time to either spouse
·         Can be attacked collaterally by 3rd parties
§         Divorce on this ground is not available to the 1st spouse
§         There is a presumption that the most recent marriage is the valid one
·         Party seeking divorce must show that the defendant was previously married and it was never dissolved
o        Pregnancy at the time of marriage
§         If wife is pregnant at the time of marriage by another man and the husband did not know of the pregnancy
§         Annulment is also available
o        Incest
§         If spouses are related and it is defined by statute as incestuous, either may obtain a divorce
§         Annulment is also available
o        Incurable insanity
§         Added in 1932
§         Plaintiff may get a divorce when spouse has been confined in an institution for treatment for at least 3 years immediately before the divorce action
·         Petition must be supported by examination and testimony of 2 physicians stating that defendant is currently insane
Defenses to divorce
·         Knowledge of condition
o        Must be actual knowledge of condition at the time of marriage
§         Mere suspicion is not sufficient
§         Also not enough to show that plaintiff had information that would have revealed it if it had been diligently pursued
·         Ratification
o        Failure of spouse to act within a reasonable time after learning of the condition may bar divorce
§         Failure to act promptly indicates acceptance
·         Insanity
o        Can be a bar to divorce based on grounds of desertion, habitual, cruel and inhuman treatment, and adultery
o        Mental illness must be so severe that defendant is unable to distinguish between right and wrong
§         Usually the defendant is undubitably insane and committed to an institution
·         Recrimination
o        Before 1964, this doctrine required a court to deny divorce if both parties proved grounds
§         Current statute authorizes chancellors to use or ignore the doctrine
o        For conduct to trigger recrimination, it must rise to the level of conduct warranting a grant of divorce
·         Reformation or repentance
o        Is not a defense to divorce based on adultery
o        Doesn’t bar divorce based on cruelty, but court may deny divorce if conduct has discontinued and the acts are remote in time from the divorce action
o        It might bar divorce based on habitual drunkenness or drug use if defendant has reformed and discontinued the habit
·         Condonation
o        Adultery
§         MS uses old rule that adultery is not grounds for divorce if parties cohabit after knowledge of the adulterous behavior
·         Court has since said that condonation doesn’t occur if parties continue to live together, but innocent spouse doesn’t resume sexual relations
o        Continuing offenses
§         Plaintiff’s cohabitation during ongoing marital misconduct such as habitual cruelty, drunkenness, or drug addiction is not considered condonation
·         MS has held that when plaintiff resumes cohabitation after habitual, cruel, and inhuman treatment and the acts discontinue, condonation has occurred
§         With domestic violence, it is not condonation if the plaintiff returns home involuntar