This is chapter 8 of the course LA 201. This chapter covers Family Law. These notes are very thorough, organized, and color-coded. They include notes taken from the book (black) and notes from in class (red). I made an A in this class and made 100's or above on all tests, including the final.
Family Law
Family Law Actions in Mississippi are under the Chancery Court jurisdiction.
Family law is also known as domestic relations and deals with legal issues that affect personal relationships. The most common types
family law are divorce, custody, and support.
Premarital (prenuptial) Agreement- often covers rights and obligations regarding property, making wills or trusts, etc.
● Must be in writing and may cover: rights to property, makings wills or trusts, and/or choice of law to govern the agreement
● Premarital agreements cannot make binding choices about child support or custody because the lodestar concern in custody
and support cases is the best interests of the child not the wishes of the parents
● In re Marriage of Bonds- Barry Bonds and his wife entered into a premarital agreement, providing that Bonds's earnings and
acquisitions would remain separate property. When the couple separated, Sun claimed that the agreement had not been sign
voluntarily, due to her limited English skills and lack of independent counsel.
-Did proximity in time between signing the agreement and the marriage ceremony indicate coercion and lack of voluntariness
from his wife?
-They both discussed on several occasions his desire to keep his property separate
-She had significant training in English and maintained several relationship in which she spoke exclusively in English with her
friends
-Burden was on her to stablish that she did not voluntarily sign the premarital agreement, and she did not meet that burden.
There are 3 types of court actions to terminate a marriage:
Divorce
● Acknowledges that a valid marriage existed, but the parties now wish to end the marital contract
● Can be fault based, no fault (irreconcilable differences), or "true" no fault (no need for consent of your spouse)
● Mississippi does not have "true" no fault divorce- either you get a divorce on fault-based grounds or you convince your spouse
to file a joint complaint for an irreconcilable differences divorce
● Fault Based Grounds for Divorce in Mississippi:
-Natural Impotency (as opposed to circumstantial as a result of some intervening medical problem, or injury)
-Adultery
-Incarceration
-Willful, continued and obstinate desertion for at least one year
-Habitual Drunkenness
-Habitual use of opium, morphine, or other like drug
-Habitual cruel and inhuman treatment
-Insanity or idiocy at time of marriage, if the complaining party did not know of such infirmity
-Marriage to another person at the time of the pretended marriage between the parties
-Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of such pregnancy
-Relation within degree of kindred prohibited by law (incest)
-Incurable Insanity and defendant has been institutionalized for three years preceding commencement
● Irreconcilable Differences Divorce in Mississippi:
-initiated by both spouses
-have usually created a marital separation and property agreement that divides their property and recommends custody and
visitation arrangements
,Annulment
● Used to obtain a court declaration that no legal marriage ever existed
● Court may find the marriage void- having no binding or legal force
● Nullity- an action seeking a nullity of marriage requests the court to find that the "marriage" is null and void
● Voidable- having a defect that can be cured; often said of a marriage or contract. If the defect is not cured, the marriage or
contract can be nullified
-The difference between void and voidable- void means it was never valid from the start; voidable is valid until a court declares
invalid
-Bigamy- the state of one person in the marriage being already married to another person; a void union
-Minority- the circumstances where one party was not of legal age when the marital union began; a voidable union by the party
who was a minor, but will remain valid unless the aggrieved or injured party bring an action in court
-Void marriages are as if they never existed and the surviving "spouse" is not an heir
-Voidable marriages could be annulled if they are brought to court, but if not, it will stand
● Mississippi Grounds for Annulment:
-Incest; void
-Bigamy- void
-Incurable Impotence- voidable, must be brought within 6 months of discovery of the failure to launch
-Age- voidable if defect not cured before child reaches appropriate age; parental consent is required for marriage for girls from 1
15 and boys 14-17; parental notice is required for girls 15-21 and boys 17-21
-Incompetence- voidable, must be brought within 6 months of discovery
-Force or Fraud- voidable, most common fraud is intentional misrepresentation regarding paternity, however must be filed with
6 months of learning about possible illegitimacy
-Lack of Cohabitation- voidable
Legal Separation
● Asks the court to grant the parties something short of a final termination of the marital contract
● The couple wants to remain married, but they want the court and state to view them as legally separated
● Couples may petition for the court to devise a legal separation, by which property is divided, finances are separated, and
visitation schedules with children are set, but a final decree of divorce is not entered
Child Custody
The immediate control and care of a minor.
● Primary consideration for the court is the best interests of the child
Legal Custody- authority to make decisions for the child; medical procedures
Physical Custody- the primary home for the child
Sole Physical Custody
Joint Physical Custody
Sole Legal Custody
Joint Legal Custody
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