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

Family Law
Bell – Spring 2010
I.            The Marriage Relationship
a.       Marriage: the state-recognized, voluntary agreement between a man and a woman to enter into a legal union
b.      Presumptions Concerning Marriage:
                                i.      Parties were eligible to marry
                              ii.      Parties complied with marriage requirements
                            iii.      Parties officiating the marriage were authorized to do so
                            iv.      Parties were not already married, that the most recent marriage was valid (based on the assumption that no one would marry if a valid marriage already existed)
                              v.      Marriage is valid
1.      Burden is on the person attacking the validity of the marriage, questioning if whether there really was a contract formed
                            vi.      Law of state where marriage occurred will govern the marriage
c.       Exceptions to the general recognition by out of state marriages:
                                i.      No recognition if out of state marriage violates a significant public policy of that state
                              ii.      No recognition if the couple leaves the state and marries elsewhere to evade home state laws
d.      Government regulates entry into marriage in three ways:
                                i.      Eligibility: Parties must be eligible to be married
1.      Age – In MS, females under 15 and males under 17 cannot get married; the marriage is voidable, but cannot be attacked collaterally (parties can void marriage, parents cannot); Age requirements may be waived (in chancery, circuit, or country courts) by showing good cause AND getting parent’s consent
2.      Gender – Many states deny full faith and credit to same sex marriages held valid in other states through the Defense of Marriage Act
3.      Mental Capacity – When a party is incompetent at the time of the marriage, the marriage can be annulled if suit is filed within 6 months; Cannot be attacked collaterally; Supreme Court has stated that there must be enough understanding to recognize the duties and responsibilities of a marriage relationship
4.      Physical Capacity – Must be able to consummate the marriage (impotency, not sterility)
5.      Kinship Marriages – Incestuous marriages are voidable; no one may marry his first cousin in MS; This is allowed in Arkansas; there is nothing prohibiting you marrying your child’s ex-spouse
a.       You cannot marry your parent, grandparent, step-parent, step-grandparent, adoptive parent, sibling, half-sibling, aunt, uncle, first cousin (except in Arkansas) or your child’s widow or widower
6.      Previous Marriage – includes bigamy and multiple marriages; the most recent marriage contract is valid; the first spouse must prove that the divorce was not granted (or go every place where the two people ever lived and get a certificate from the clerk stating no record of divorce exists
                              ii.      Formal Marriage Requirements:
1.      Parties must acquire a license, or a sworn statement that is on file for 3 days; parties must also submit proof of age and a medical certificate within 30 days of the application
2.      Parties must take a test to prove they don’t have syphilis
3.      Marriage must be solemnized through a ceremony performed by an authorized person (minister, spiritual leader, judge, justice court judge, county supervisor)
4.      MS abolished common law marriages in 1956, but will recognize one if it comes from a state that allows CL marriages
                            iii.      Consent/Voluntariness:
1.      A marriage must be voluntary; annulments may be granted for the following:
a.       Fraud: the fraud must go to the essence of the marriage; misrepresentations about personal characteristics are not grounds for annulment; fraud is waived if the party knew of the fraud at the time of the marriage; possible grounds include a husband saying he wants children, then retracting his willingness
                                                                                i.      Caveat emptor rules fraud about personal characteristics and are not enough to void the marriage
                                                                              ii.      Two tests for setting aside a fraudulent marriage:
1.      Essentials Test: narrow; fraud must relate to the sexual obligations of marriage, or the “essence of the marriage” (majority approach)
2.      “But For” Test: broader; the defrauded party would not have entered in the marriage but for the fraud
b.      Duress: one party marries under duress, or threat of force
c.       Marriage in Jest: one or both enters marriage as a joke; some courts will grant annulment, but many will not; if it is a marriage for immigration purposes only, it will be set aside
II.            Annulment
a.       An annulment declares that a marriage never existed in the first place, while a divorce recognizes but terminates a valid marriage
b.      In MS, annulment may be granted based on:
                                i.      Bigamy
                              ii.      Kinship
                            iii.      Incurable impotency
                            iv.      Insanity
                              v.      Failure to meet licensure agreements
                            vi.      Incapacity to consent due to lack of age or mental incapacity
                          vii.      Physical incapacity to enter a marriage state
                        viii.      Lack of consent due to fraud or duress
                            ix.      Pregnancy of the wife by another man at the time of the marriage without the husband’s knowledge
c.       Defenses to Annulment
                                i.      Running of the statute of limitations (usually 6 months)
                              ii.      Ratification: when a spouse continues to cohabitate after he or she learns of the problem
                            iii.      Laches
                            iv.      Estoppel if one party has received the benefits of the marriage
d.      Void vs. Voidable Marriages
                                i.      Voidable: valid until the court says otherwise, can only be attacked by the parties to the marriage
                              ii.      Void: in MS, only incestuous, bigamous, and same-sex marriages are void; can be challenged by anyone and can’t be ratified
e.       Effect of Annulment
                                i.      If the marriage never existed, then there is no alimony nor equitable distribution of property; divorce allows these things
                              ii.      Responsibilities and rights concerning children are the same with annulment and divorce
III.            Separate Maintenance Actions
a.       Judicial commands to a husband to either return home, or support his wife anyway
                                i.      Available to men also, but hasn’t come up yet
                              ii.      Designed to encourage payor to reconcile with the recipient
                            iii.      Based on monthly income; can’t be a lump sum
                            iv.      Recipient doesn’t have to be totally blameless, but can’t have materially contributed to the separation
b.      Amount of award:
                                i.      The goal of the separate maintenance award is to “provide the normal support a wife would have received in the intact marriage, without unduly depleting the husband’s estate”
                              ii.      Same factors used to determine the separate maintenance award as in traditional alimony:
1.      Earning capacity/Income of husband and wife
2.      Reasonable needs of wife and children
3.      Husband’s necessary living expenses
4.      Resources available to wife
5.      Other relevant circumstances
c.       Modification/Termination of Separate Maintenance Award
                                i.      Terminated if the payor and recipient reconcile, or if the payor makes good faith attempt at reconciliation and is refused
                              ii.      Also terminated if wife has a boyfriend
                            iii.      Award can only be modified on a material change in circumstances after the award is ordered
IV.            Rights Between Spouses (Within the Marriage)
a.       Homestead Rights
                                i.      Veto Power: a sole owner of a homestead can’t sell, mortgage, or lease the home without the spouse’s permission
1.      Exception: if a sole owner runs up a lot of debt and a creditor gets a judgment against him which attaches to any real property, there exists an exception from this judgment for the other partner (the first $150,000 is exempt for the spouse)
                              ii.      Life Estate: upon the death of the sole owner, the other partner gets a life estate for so long as she stays unmarried
                            iii.      Inheritance Right of a Child’s Share: through intestate succession; the estate is divided equally between the children and spouse; if no children exist, the surviving spouse gets it all
1.      Under a will, if a surviving spouse receives less than a statutory child’s share, he or

                                     iii.      Condonation: forgiveness, innocent spouse has forgiven the other
b.      12 Grounds for Fault-Based Divorce
                                i.      Natural Impotency
                              ii.      Adultery (2nd most common)
1.      To prove: show infatuation or a generally adulterous nature, and opportunity (that can’t be reasonably explained any other way, i.e. photos of them walking into a cheap motel holding hands with a bottle of champagne); however, there is still no guarantee that this will work
                            iii.      Imprisonment
                            iv.      Desertion for one year – must be willful, continued, and obstinate desertion for the space of one year to be grounds for divorce
1.      To prove: has to be for a continuous year; sleeping with your spouse during the year could lose your desertion claim
                              v.      Habitual drunkenness – plaintiff must prove it adversely affected the marriage
                            vi.      Habitual and excessive drug use – opiates, morphine, or similar drug
1.      To prove: along with drunkenness, it’s not about how much you drink, but how it interfered with the marriage
                          vii.      Habitual cruel and inhuman treatment
                        viii.      Insanity – at the time of the marriage; defendant must have been insane at the time of the marriage and the plaintiff must not have known about it
                            ix.      Incurable insanity – insane spouse must have been confined in an institution for at least 3 years
                              x.      Bigamy
                            xi.      Pregnancy – of wife at the time of the marriage from another man; husband cannot know about it
                          xii.      Kinship within the prohibited degree – incest, either party may obtain a divorce or get an annulment; children of an incestuous marriage are illegitimate; this is the only ground that doesn’t require an innocent party
c.       Defenses to Fault Based Grounds for Divorce
                                i.      Actual Knowledge of the condition; mere suspicion of the condition or habit is not sufficient
                              ii.      Ratification may bar divorce by a spouse who fails to act within a reasonable time after learning of the condition; failure to act promptly indicates acceptance of the condition
                            iii.      Insanity is a defense to adultery, desertion, and habitual cruel and inhumane treatment; mental illness must be so severe that the defendant is unable to distinguish right from wrong; usually when courts accept this the defendant was in an institution
                            iv.      Recrimination doctrine requires that a chancellor deny divorce if both parties proved grounds because neither was the innocent party; today, a divorce can be granted even if the evidence establishes recrimination; the MS statute authorizes chancellors to use or ignore the doctrine at their discretion
                              v.      Reformation or Repentance – Divorce should not be granted based on habitual drunkenness or drug use if the defendant has reformed and discontinued the habit; this defense does not work for adultery or cruelty; if the innocent spouse accepts the repentance and forgives the adultery, divorce may be barred by the defendant by condonation
                            vi.      Condonation – forgiveness may be a defense to divorce
1.      Forgiveness can be
a.       Expressed forgiveness, such as reconciliation
b.      Implied forgiveness, such as when an innocent spouse continues the marital relationship after learning of the offense