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FAMILY LAW OUTLINE
THE MARRIAGE RELATIONSHIP
o Marriage=
 An agreement/contract bt a man/woman to enter a legally recognized union.
 A voluntary undertaking defined, controlled and regulated by the state.
 Religious sacrament: Interweaving of state and religion that is normally prohibited.
o The Right to Marry
 Fundamental right protected by the Constitution
 Parental consent requirements have been upheld as rationally related to the
legitimate interests in preventing unstable marriages.
o Presumptions:
 parties are eligible to marry, requirements have been complied with, official
performing marriage was authorized to do so.
o Recognition of Marriages in Other States:
 Basic rule: Mississippi will recognize a marriage that was valid where it was
celebrated.
 Exception: Mississippi will NOT recognize a marriage if the marriage violates a
strong public policy of the state. Therefore, no recognition will be given to:
 Incestuous , Underage, Same Sex Marriages
o Regulation of Entry into Marriage
 Eligibility – Person Eligible to marry UNLESS:
 Kinship (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)
 Bigamous marriages – void if one of parties is already legally married
o may be set aside by annulment or dissolved by divorce.
o Presumption: The most recent marriage contracted by a party is
presumed to be valid.
o Burden rests on the first spouse to prove a negative - that the first
marriage was never dissolved.
o If a first marriage is still valid when a 2nd marriage takes place,
subsequent divorce between the first spouses does not make the
second, bigamous marriage valid.
 Age (Mississippi law prohibits marriage by a female under the age of fifteen
or a male under the age of seventeen.)
o The age requirement can be waived by a court in the county in which
either party resides, on a showing that:
 Good cause exists AND
 The parents consent to the marriage.
o Marriage of an underage party is voidable and may be annulled by the
underage spouse and possibly the older spouse.
o The marriage may NOT be attacked collaterally or by third parties.
o The underage spouse may ratify the marriage.
 Must be of opposite sex
 Mental capacity – the person has to understand the basic concept of marriage
o A marriage may be annulled if one of the parties is incompetent at the
time of the marriage, provided suit is filed by one of the parties within
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six months.
o A marriage may be dissolved by divorce if one of the parties was
incompetent at the time of the marriage and the other was unaware of
the disability.
o Note: The party asserting the validity of the marriage must prove that
it did not exist at the time of the marriage.
 Physical capacity (ability to have sex, not kids)
Formalities
 Common Law Marriage
o Agreement to be married followed by cohabitation and
o Holding themselves out to the public as being man and wife
o Note: The burden of proof is on the one seeking to be show marriage
 Ceremonial Marriage
o License (written, sworn application must be on file with the clerk for
3 days, but judge can waive waiting period)
o Proof of age and a medical certificate dated within 30 days of
application showing they do not have syphilis.
o Solemnization (the performance of a formal ceremony): must be
performed by an authorized person (A minister, rabbi, spiritual leader
of any religious body authorized by that religion and in good standing,
any justice of the MS Supreme Court, any MS Court of Appeals, Circuit
Ct, Chancery Ct or County Court Judge, and any Justice Court or
County Supervisor performing a ceremony within his/her county.)
 Failure to comply with requirements:
o Failure to comply –> marriage is void
o Marriage may also be annulled
o BUT mere irregularities or omissions in a license do not affect validity
of a marriage solemnized in a ceremony and followed by cohabitation.
However, complete failure to obtain a license, as opposed to failure to
meet some of the license requirements, is not cured by ceremony and
cohabitation.
Voluntariness (Consent to Marry) – instances in which consent is lacking:
 Lack of mental capacity
 Duress
o Suit must be filed within 6 months of the marriage.
o The marriage may be ratified by the party acting under duress.
o Burden of proof = clear and convincing evidence that the duress
“dominated throughout the transaction so as to disable the one
influenced from acting as a free agent at the time of the marriage.”
o Examples:
 Husband consented to marry in the presence of woman's
father and brother who accompanied him to the ceremony
with shotguns.
 Man arrested on statutory rape charges was released upon his
agreement to marry the girl was voluntary.
 Fraud
o Marriage may be set aside if one party has been fraudulently induced,
but suit must be filed within 6 months of the time the fraud was or
should have been discovered.
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o The marriage may be ratified by the party who was defrauded
o Two Tests to determine fraud:
 Essential Test: requires the fraud go to the essence of the
marriage, meaning that it must relate to the sexual obligations
of marriage. [MS follows]
 But For Test - Allows annulment if fraud was material - the
defrauded party would not have entered the marriage but for
the fraudulent misrepresentation.
o Examples:
 Husband lied about wanting children. He does not want them.
[Yes, wife can get marriage annulled because whole point of
marriage is to procreate and have children]
 Wife lied about not wanting children. She actually does. [Not
fraud]
 Wife concealed that she was pregnant by someone else. [Yes,
fraud]
 The wife said she was pregnant, so they got married, and she
was in fact not. [No, not fraud]
Marriage in Jest: If parties marry as a joke, some courts will grant an
annulment if the marriage has not been consummated, but the MS Statute
does not mention marriage in jest.
Lack of intent. Brittney Spears example (drunk, chemically altered). You
cannot guarantee that the courts will set it aside. Marriage for immigration
purposes only.
o Annulment
 Two Bases for Annulment:
 Void
o Means never existed
o Others can attack it
o Instances in which marriage is void: Bigamy, Kinship within
prohibited degree, same sex
 Voidable
o Others can not attack it
o Examples: incurable impotency, lack of physical capacity, insanity,
pregnancy by another, minority, lack of consent (drunk aka "want of
understanding", fraud, duress), fraud if have STD and want to have
kids, failure to obtain license
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VOID
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bigamous (if first spouse
dies, doesn’t make the
second marriage valid)
incestuous
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VOIDABLE (under MS statute, the parties have
six months after they realize the defect in the
marriage to have it set aside; If they stay with
knowledge, then they can’t attack it anymore.)
statute of limitations
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only parties
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same sex
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ratify
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no license
no ceremony
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laches
estoppel (received benefits, e.g.)
lack of mental capacity (guardian on their
behalf can challenge the marriage at any time
during the life of the person)
lack of physical capacity
fraud
duress
underage
pregnant by another
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Defenses to Annulment
 Statute of Limitations (usually 6 months)
 Ratification
 Laches
 Estoppel
 Effect of Annulment
 No alimony/equitable distribution of assets (different than divorce)
 Don't forget jurisdiction and procedure (Britney in NV- If she wasn’t a
resident, she should not have been able to annul)
 Property and Support rights limited
 Children of annulled marriage: the parents’ responsibilities with respect to
the children do not change.
 Retroactivity
o Property Rights within a Marriage (MS has a dual property system)
 MS follows the title system for determining property rights between spouses during
a marriage: allocates ownership, use, and control of property to the spouse who
holds title (exception: homestead property).
 Homestead property (residence):
o No transfer without consent: A spouse who is sole owner of a marital
homestead cannot act alone to convey, mortgage, or otherwise
encumber the property as long as the couple is living together.
o Homestead rights at death: At the death of a spouse holding
homestead title, the surviving spouse receives a life estate in the
homestead until remarried.
o Homestead Exemption: (used when there is a judgment creditor who
is trying to seize the house) from execution from judgment creditors
for up to $150,000
 Joint Ownership: Married persons frequently hold title to property as coowners.
o Joint Title Presumption: if an owning spouse transfers property into
the joint names of both spouses, the law presumes the owner
intended a gift a one-half of the property.
o Tenancy by the Entirety: Property cannot be transferred, mortgaged,
or otherwise severed except by consent of both spouses. Creditors of
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one spouse have no claim on property held in tenancy by the entirety.
 Equitable Distribution: replaces the title system upon divorce
 The court takes a snapshot of all the property owns at divorce, and any of
those assets that were earned during the marriage is marital property, and it
can be equitably divided.
o Duty of Support: As long as they are in the intact marriage, the state will not step in and
enforce the duty of support (more of an aspiration than an enforceable obligation).
 Separate Maintenance: Judicial command to a husband to return to his wife or to
support her at the standard of living of their marriage
 Always a monthly payment, not a lump sum
 It ends if they reconcile, if she has a boyfriend or in any way steps out of that
willingness to be his wife
 Offers to reconcile can cut off separate maintenance if it is a good faith
attempt to reconcile
 MS Supreme Court has not yet said that separate maintenance is available for
the husband (probably has to under the Constitution)
 Wife is NOT entitled to support if her conduct materially contributed to the
separation.
o Alienation of Affection: tort action that a spouse can bring against a third party who steals
their love and affection away. (e.g., Fitch v. Valentine)
 Does not require a sexual relationship.
 You have to prove that (1) there was intentional wrongdoing and (2) that conduct
caused the breakup. There are also cases that appear to say, if it happened during
the marriage, it caused it.
 Two other scary things: one is that there was recently a case where the hospital
where the doctor worked. Two theories: respondeat superior (dismissed) and
hospital negligently promoted the affair – was not dismissed. There is also a case
where a lawyer was a defendant in an alienation of affection suit and he first
represented the man and his wife in a non-family law matter. He had an affair with
the woman who was his client. The husband sued him for alienation of affection and
breach of fiduciary duty.
o Breach of promise to marry: available to fiancés. Historically it was to protect the woman
from public embarrassment, so it was damages for emotional distress and loss of social
status. Now you can get financial damages. If someone bolts the week before the wedding,
there can be incredible expenses that are lost.
COHABITANTS
o Rule: There are no property or support rights between cohabitating spouses/parties.
Woman has no access to husbands property, no inheritance at death, no enforceable right
of support, no govt. money, no tort action for cohabitants, no capacity to make medical
decisions for the other, no alimony and no general property division.
 BUT see Marvin v. Marvin - California Supreme Court awarded long-term girlfriend
property and support rights based on long-term implied contract theory. This
produced the term "palimony." (One of two states that has recognized cohabitating
rights.
o Note: In MS, it is illegal to cohabit. Also, it does not necessarily mean that there is only 1
residence for 2 people. It is defined as "staying over" a couple nights a week. But, it is
probably unconstitutional after Lawrence v. Texas.
o Exceptions:
 Joint Venture Exception - The MSSC has approved division of assets accumulated by
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an unmarried couple when both worked outside the home, contributed income and
household services and to a woman who worked with her partner in his business.
 Putative Spouse Doctrine - (most states recognize) Under this doctrine, if one of the
parties really believes in good faith that they were married, and if it wont damage
the rights of a real spouse, then can have property division and alimony. Example: If
a woman marries a man, who fails to mention he is already married, she thinks she
is married. The first spouse dies. The second wife, is still not legally married. But,
since the first spouse is dead, and her property division rights wouldn't hurt a first
spouse, second spouse, can get alimony and property division. This is not the case if
second spouse knew husband was already married.
 Agreement - A cohabitating couple can contract to have property division rights, just
like a married couple can contract out of some of those rights.
 Couples who were married, got divorce and start cohabitating: Wife contributes
domestic services. This contribution to ex-husband's business, although not
financial, entitles her to some property division. Wooldrige v.Wooldrige - A
previously married couple, cohabitate for a long period of time after divorce and
have more children. The wife makes no contribution to the husband's business,
economic or non-economic, she is strictly a homemaker. Applying Ferguson v.
Ferguson, domestic contributions are as valuable as financial, and ex-wife is entitled
to half of all of the domestic contributions she made to her cohabitant.
 No difference with respect to children- will still get support
 Cohabitant could argue reliance as in a contract scenario to get more support but
must show change in position-- but won't be recognized like a common law
marriage- don't have that anymore.
SAME SEX MARRIAGE
o History:
 Hawaii Decision (1996): held that banning same-sex marriage was sex
discrimination, based on Loving v. Virginia; decision was overruled by the
legislature.
 Defense of Marriage Act (1996): First, it defines marriage for federal purposes as
between a man and a woman. Second, it says that no state is required to recognize a
union from another state. (In the next decade, 20 states passed the mini-DOMA’s.
Footnote: Some of those statutes, like Mississippi’s, say we will not recognize same
sex marriage. Some, like Virginia’s, say we will not recognize same sex marriage or
civil union.)
 Vermont Decision (1999): Vermont held that same sex marriage ban violated that
state’s equal protection laws. Heightened scrutiny. But the Vermont court held that
it could be a civil union (didn’t have to be a marriage).
 Massachusetts Decision (2003): the court analyzed the ban on same-sex marriages
under rational basis scrutiny and held that it was unconstitutional. The legislature
certified a question back to the Supreme Court and court said it had to be a
marriage, not a civil union.
 California Decision (2008): the court ruled that laws directed at gays and lesbians
are subject to strict judicial scrutiny and that marriage is a fundamental right under
the California Constitution, thereby holding unconstitutional the previously existing
statutory ban on same-sex marriage embodied in two statutes. The Court's ruling
also established that any law discriminating on the basis of sexual orientation is
constitutionally suspect, making California the first state in the United States to set
such a strict standard.
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o Categories:
 DOMA states: 20 states, including Mississippi
 Non-recognition states that don’t have a DOMA statute
 Civil unions – VT, NJ, NH, CT (legally recognized partnership that provides almost all
the rights of marriage; domestic partnership – provides only some rights)
 Marriage (1) Mass. (legislature certified a question back to the Supreme Court and
court said it had to be a marriage, not a civil union.) (this was limited to residents);
(2) California (not limited to residents)
 Domestic Partnerships - RI, Hawaii, Maine, DC, NY
o Arguments to get heightened scrutiny:
 Fundamental right
 Suspect classification – sex
 Suspect classification – sexual orientation
 Problem here: has to be based on an immutable characteristic. (California
court says that immutable is something that is so central to who you are that
you shouldn’t be required to change it. )
o Policy arguments:
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AGAINST
procreation
slippery slope: why can’t that involve
three people?
dual gender parents
devalues marriage
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religion/morality/social values
efficiency – overloaded courts,
procedurally (new forms, licenses,
laws), state benefits,
federal/state/interstate mess that is
going to be created, appropriate
measure for the legislature
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One argument is, maybe the state should get out of the marriage business and recognize civil
unions for everybody.
o Arguments re: Definition of Marriage
 Plaintiff: Marriage is the right to form a family unit, a lasting committed relationship.
The plaintiffs make an essence/characteristic argument. What does a marriage look
like? Plaintiff says we are not limited by history. At one time women lost their
rights, there was no interracial marriage, there was no divorce. This is the type of
argument you have to make, that this definition has been eroding over time.
 State: Marriage is a union between a man and a woman. The state defines it in
terms of parties. Who is the question. The state says the plaintiffs are making this
whole thing up.
 State’s argument: accidental pregnancies.
o Note: one problem: What happens when you have someone from a domestic partnership
state moves into a civil union state?
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FOR
monogamy/stability/health/security
more stable family units for adoption
and foster care
economic benefits
state – reduces dependents
basic fairness
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FAULT-BASED DIVORCE
o Fault Based Divorce: Grounds
 Capacity to be Married - Insanity
o If your spouse was insane at the time of your marriage, without your
knowledge
o If your spouse has been institutionalized for several years and you
have affidavits from doctors saying that your spouse is permanently
insane.
 Procreation/Sexual Aspect: (1) Adultery, (2) Impotency, (3) Pregnancy of the wife
by another without the husband's knowledge at the time of the marriage
 Ineligibility to marry under the statute: (1) Prohibited kinship, (2) Bigamy, (3)
Incest, (4) Gender
 Intolerable Conduct: (1) Habitual drunkenness, (2) Habitual drug addiction, (3)
Habitual cruel and inhuman treatment, (4) Spouse being removed, (5)
Imprisonment in any penitentiary, (6) Desertion for 1 year
 Note: 99% of cases pertain to: (1) Adultery, (2) Habitual cruel and inhuman
treatment, and (3) Desertion (distant third).
o Characteristics of Fault Based Divorce
 No default judgment - No divorce may be taken by default. Even if a defendant fails
to answer and defend the suit, a plaintiff must prove the elements of the case to the
court's satisfaction.
 Burden of Proof - The party seeking a divorce bears the burden of proof. On most
grounds, the plaintiff must prove the grounds by clear and convincing evidence.
Habitual cruel and inhuman treatment, however, can be proved by the
preponderance of the evidence.
 Corroboration - A divorce plaintiff's testimony must be supported by corroborating
evidence. The evidence should convince a prudent person that the plaintiff's
testimony is true and not "the exaggerated product" of the desire for divorce.
 Divorce granted to the most innocent party - With the exception of incestuous
marriage, only the injured party may seek a divorce on statutory grounds. (If both
parties prove grounds for divorce, the court must identify the party whose conduct
caused the separation or whose fault was greater and grant divorce to the other.)
o Detailed Discussion of Fault Based Grounds for Divorce
 NATURAL IMPOTENCY: "Incurable inability to engage in sexual intercourse." (not
sterility)
 ADULTERY: "Voluntary sexual intercourse of a married person with a person other
than the offender's spouse".
 Plaintiff must prove 1) defendant is infatuated with someone else OR
defendant has an adulterous nature (proclivity for adultery), and 2)
defendant had an opportunity to act on this infatuation.
 Court must make specific findings of fact (facts must leave no other
reasonable conclusion).
 Direct proof is not required, circumstantial evidence is ok: overnight stays,
giving or receiving gifts, physical affection towards or admissions of affection
towards another, secrete behavior, frequent telephone calls, or letters.
 Divorce may be granted based on a spouse's sexual conduct during
separation.
 If you cheat because your spouse did first, you still have grounds because you
cheated after they did (you would still have grounds against them).
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 Court can (but rarely does) judicially bar (prevent) you from marrying again.
SENTENCE TO ANY PENITENTIARY
DESERTION FOR ONE YEAR (very distant but still one of the "big three"):"willful,
continued and obstinate desertion for the space of one year".
 Plaintiff must show 1) absent for one year (legit absence doesn't count), 2)
intent to abandon the marriage, and 3) plaintiff did not consent to the
separation.
 Good faith reconciliation interrupts the one year period. The offer of
reconciliation must be unqualified.
 Condition(s) must be reasonable.
 Constructive desertion: occurs if an innocent spouse is driven away by
conduct which makes the marriage unendurable or dangerous. This is also a
ground for divorce.
 An "inexcusable, long-continued" refusal of sexual relations can constitute
constructive desertion. (8 years refusal has been found sufficient to meet
this, 4 months was not).
HABITUAL DRUNKENNESS: must impact the marriage, must still occur at the time of the
divorce.
HABITUAL USE OF DRUGS: must occur "customarily and frequently" (opium, morphine
etc)
HABITUAL CRUEL AND INHUMAN TREATMENT
 Plaintiff must prove 1) conduct by the defendant that meets the test for
cruelty, 2) prove a causal connection between the conduct and the plaintiff’s
physical or mental health; and 3) provide independent corroborating
evidence of the conduct.
 "Conduct": "conduct only as endangers life, limb, or health, or creates a
reasonable apprehension of danger thereto, thereby rendering the
continuance of the marital relation unsafe for the unoffending spouse, or
such unnatural and infamous conduct as would make the marital relation
revolting to the unoffending spouse and render it impossible for him or her,
as the case may be, to discharge the duties thereof."
 Actual danger is not required.
 Causal connection between conduct and (mental or physical) health: This
connection is judged by a "subjective test."
 The timing of the conduct is important. The offense must occur in close
proximity of the filing of the divorce action.
 Physical violence is habitual cruel and inhuman treatment, but it must be
repeated episodes of real violence. Not isolated incidents, or minor physical
contact.
 Isolated incidents combined with other factors such as verbal or emotional
abuse or threats can be habitual cruel and inhuman treatment.
 Emotional Abuse: conduct must "rise above the level of unkindness or
rudeness or mere incompatibility or want of affection."
 Habitual accusations of infidelity may constitute cruelty even in the absence
of other conduct, if the accusations are clearly unfounded. Accusations made
in good faith, although ultimately disproved, do not constitute habitual, cruel,
and inhuman treatment.
 Sexual behavior that is repugnant to a plaintiff and makes the marriage
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unendurable may be grounds for divorce
Hiding a child is grounds
Courts may also consider cumulative impact of several factors
BIGAMY
PREGNANCY OF THE WIFE (from another man) at the Time of the Marriage without
husband know
 KINSHIP WITHIN THE PROHIBITED DEGREE (incest)
 INSANITY AT THE TIME OF THE MARRIAGE WITHOUT KNOWLEDGE OF OTHER: no precise test
 INCURABLE INSANITY
 A plaintiff may secure a divorce from a spouse who has been confined in an
institution for treatment for at least three years immediately preceding the
action.
 The petition must be supported by the exam and testimony of two physicians
that the Defendant is currently insane, creating a presumption of incurable
insanity justifying divorce.
o Defenses to Divorce (See Above)
 KNOWLEDGE OF CONDITION - a spouse's actual knowledge at the time of the marriage
may bar divorce on that ground.
 RATIFICATION - may bar divorce by a spouse who fails to act within a reasonable time
after learning of the condition.
 INSANITY
 RECRIMINATION - Until 1964, this doctrine required chancellor to deny divorce if both
parties proved grounds. The current statute authorizes chancellors to use or ignore
this statute.
 REPENTANCE (not a defense to adultery or cruelty) - divorce should not be granted on
basis of habitual drunkenness if defendant has reformed and discontinued the habit.
 CONDONATION - forgiveness
 CONNIVANCE - is one spouse's consent to the other's wrongful conduct. This has not
been successfully asserted as a defense to divorce in MS.
 COLLUSION - might consist of an agreement to create divorce grounds, perjury
regarding facts supporting divorce
 Except in Irreconcilable Differences Divorce - divorcing parties must still
provide an affidavit stating that the parties have not colluded to obtain a
divorce.
 RES JUDICATA - a judgment denying divorce is res judicata as to whether the facts
known at the time of trial were grounds for divorce.
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NO-FAULT DIVORCE (MS Style)
o Mississippi Irreconcilable Differences Divorce (Not True No Fault Divorce) (parties must
agree to be divorced - divorce is not available based on party's proof that the marriage is
irretrievably broken. Properly titled, it would be called divorce by agreement.)
 Requirements for ID Divorce (Class)
 Agreement to ID divorce must be in writing
o One of the dynamics is that you are going to have clients that come in
and say no I.D. divorce, but the reality is that once people get into the
process, most people end up agreeing to I.D. divorce. Therefore,
always put it in the pleading.
 A pleading requesting an ID divorce must have been on file for 60 days when
the petition is granted.
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If the parties are going to submit issues to the court, that must be done in
writing, and it has to include exactly the language of the statute.
 Court approval of the parties' agreement and the terms of the agreement
(has to be in the judgment that the court approved of the terms).
 If the defendant has contested the divorce, (means filed an objection or fault
based ground) that has to be withdrawn before the ID divorce can be
granted.
 ID Divorce cannot be granted until all other issues have been decided.
Note: The issues in an ID divorce can’t be bifurcated. All of the issues have to be
decided in one proceeding. (Some judges want to bifurcate.)
Note: MS: Even if you have an ID divorce, fault can still be used in property and
alimony division.
Note: In most states, you fight over property, alimony, children, but whether you
are going to get divorced is not an issue. But because it is in Mississippi, it colors the
entire process. It’s a bargaining tool and a custody negotiator.
 Personal Jurisdiction:
o General Rule: A court may grant divorce to a plaintiff domiciled in the
state without acquiring personal jurisdiction over the defendant.
o Because MS's no fault divorce requires consent of both spouses,
divorce based on irreconcilable differences may be granted: (Service
of Process)
 Only upon joint complaint of the husband and wife OR
 A compliant where the defendant has been personally served
with process OR
 Where the defendant has entered an appearance by written
waiver of process.
 Consent
o The parties’ consent can be manifested at the outset of an action by
filing a joint complaint or later, by withdrawing a contest of the action
and submitting a written agreement.
o Voluntariness - cornerstone of no-fault divorce
o No consent exists if:
 Either party asserts a fault-based ground for divorce OR
 Contests a fault- based ground for divorce OR
 Denies the other's right to an irreconcilable differences divorce
 Consent is not met by separate pleadings requesting ID
divorce as an alternative to fault grounds.
 Pleadings must be on file for 60 days
o A complaint requesting ID divorce must be on file for 60 days.
o The filing may be a joint complaint of the parties OR the complaint of
one of the parties asserting irreconcilable difference as a sole ground
for divorce OR as an alternative to fault-based grounds.
o A complaint requesting divorce on fault grounds alone will not
support a later agreement to divorce on irreconcilable differences,
even if fault-based complaint has been on file for 60 days.
o In computing the 60-day period, the last day is counted, so that a
divorce may be granted on the 60th day from filing.
 Agreement to terms or submission of Issues
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o Parties may agree to all terms of divorce and submit the terms to the
court for approval, OR
o May agree to be divorced on irreconcilable differences, agree to some
terms, and specify others for resolution by the court.
 The statute provides that no divorce may be granted until all custody and
property matters have been resolved by agreement or adjudication and
included in the judgment of divorce.
o Written Agreement and Approval:
 The writing must be sufficiently complete to show the parties'
agreement.
 In several cases, a grant of divorce has been reversed because
the parties’ agreement was presented orally or dictated in the
court record rather than presented in writing.
o Submission of Issues to Court:
 Parties who cannot agree to all terms may agree to divorce and
to submit other terms to the court. The agreement must:
 Be in writing
 Be signed personally by the parties
 Specifically state the issues for submission to the court
 State that the parties voluntarily consent to court
decision of the specified issues and
 State that parties understand that the court's decision
will be a binding judgment.
 After the parties have agreed to submit issues to the court,
consent may not be withdrawn without leave of court after
proceedings, including motions, have begun.
 No Divorce Before All Matters Resolved
o The irreconcilable differences statute provides that no divorce shall
be granted until all custody, child support, and property rights
between the parties have been agreed upon and found to be adequate
or resolved by the court.
 However, the MS Supreme Court has not always required this.
o 5 Pieces of Divorce Cause of Action
 Divorce Grounds
 Property Division
 Alimony/Spousal Support
 Child Custody
 Child Support
o Jurisdiction: In addition to the initial action, once a family is in the court system, the court
has continuing jurisdiction over them. Divorce jurisdiction is based on residence.
 Subject Matter Jurisdiction
 A court has subject matter jurisdiction over an action for divorce if one of the
parties is domiciled in the state. Divorce may be granted even though the
defendant has no minimum contacts with the state.
o Domicile = person lives in state with intent to remain indefinitely.
o Quasi-in Rem Action - A divorce is regarded as a form of an in rem
action, permitting adjudication of the rights based on the domicile of
one of the parties.
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MS chancery court jurisdiction over divorce is limited to cases in which one
of the parties has been "an actual bona fide resident" for six months prior to
commencement of the suit.
o Once a party is domiciled in the state, the state has SMJ over divorce
and everything else but custody. Custody has been changed by the
UCCJEA.
o Subject matter jurisdiction CANNOT be waived.
o Hypo: Family in MS with 2 kids. Husband and wife were been married
in MS, lived in MS for 10 years. When they separate, the mom and kids
go to Wyoming at the beginning of 2007. She is the one who wants a
divorce. She does not really have grounds. She has been gone over a
year. Who has jurisdiction? Husband has grounds for desertion.
 Subject matter jurisdiction - Both Wyoming and Mississippi.
Venue
 Fault Based Divorce
o In which the defendant is a MS resident, venue lies in the defendant’s
county of residence, county where the defendant may be found, or the
county in which the parties resided at the time of separation, if the
plaintiff is still a resident of that county at the time of filing suit.
o If the defendant is non-resident, or absent, venue for fault-based
divorce lies in the county where the plaintiff resides.
 Irreconcilable Differences Divorce
o Suit may be filed in either party's county of residence
o Otherwise, venue lies in the county in which the resident party lives.
 In general, if two courts within a state have concurrent venue
over a divorce action, the second action should be abated.
Personal Jurisdiction
 Because divorce is regarded as a form of in rem action, a court may grant
divorce even though the defendant does not have the minimum contacts
required for personal jurisdiction.
o MS: In rem jurisdiction for divorce applies ONLY in fault-based
divorces.
o Because no fault divorce in MS requires the consent of both spouses,
divorce based on irreconcilable differences may be granted ONLY if
the court has personal jurisdiction over a defendant who has joined in
the action.
 To have personal jurisdiction, must have "minimum contacts" non-resident defendants contacts must amount to something
more than causal, isolated contact with an in-state resident."
 To order property division, alimony, or child support, a court must have
personal jurisdiction over the parties.
 Hypo: Does MS have personal jurisdiction over wife that is non-resident? Yes,
she lived there, raised kids there. MS can grant a divorce, divide property,
order alimony, and provide child support.
o Wyoming probably does not have personal jurisdiction, if husband
has never been there. However, wife can still get divorce in WY and
come back to MS for property division, alimony, and child support.
 Key: Living as a married couple is the real key. Cases say that if a married
couple lived in the state, the state has personal jurisdiction.
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o Procedure
 Service of Process
 The requirements for service of process depend upon the type of action.
o In suits for divorce, Rule 4 of the Rules of Civil Procedure governs
service of process.
o In other family law matters - petitions for custody or support,
paternity, termination, adoption, and grandparent visitation - and in
actions to modify or enforce a decree, Rule 81(d) governs service of
process.
 Rule 81(d) prescribes the form of summons to be used;
however, Rule 4 governs the method of service.
o ETHICS
 Conflicts of Interest
 Dual Representation: You can not rep both spouses in ANY divorce
 Avoiding the Appearance of Dual Representation: In dealing on behalf of a
client with a person who is not represented by counsel, a lawyer shall not
state or imply that the lawyer is disinterested. When the lawyer knows or
reasonably should know that the unrepresented person misunderstands the
lawyer's role in the matter, the lawyer shall make reasonable efforts to
correct the misunderstanding.
 Former Client Conflicts: An attorney may be barred from representing a
divorcing spouse if the attorney rep one or both spouses previously UNLESS
the former client consents
o The test for determining whether prior representation creates a
conflict consists of two parts:
 "Does the former representation have a substantial
relationship to the matters involved in the present
representation?" AND
 "Does the attorney have information from the former
representation that can be used in the new matter against the
former client?”
 Contingency Fees
 An attorney may not charge a fee in a domestic relations case that is
contingent upon securing a divorce or upon the amount of alimony, support,
or property division obtained in the action. Attorneys may, however, charge
contingency fees for recovery of vested arrearages of child support and
alimony
o This is because of the public policy that favors reconciliation
 Attorney Liens: Attorney's fees may be secured by liens on client assets
unrelated to pending litigation unless the lien is adverse to the client or
interferes with the conclusion of the case.
 Attorney may not take an interest in property that is the subject matter of the
litigation.
 Solicitation
 Referring clients to counseling
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INITIAL CLIENT INTERVIEW
o Ask if the client already has an attorney.
o First interview with the client, the attorney is trying to do 3 things:
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 Develop the facts of the case
 Begin to establish a rapport with the client
 Establish what relationship is with client - are you representing them, fee, etc.
Development of Facts / Develop rapport
 Rule #1: Let the client talk because attorney will get real facts as opposed to the
facts attorney directed client to give.
 Learn to be non-judgmental and unembarrassed.
 Learn to be skeptical without being distrustful.
 Learn to be an active/empathetic lawyer - learn to listen to people and focus on
them.
 Once attorney has gotten the facts, it’s an ongoing process that should be
organized in 3 ways:
o Chronologically - this allows the attorney to see holes in facts.
o Issue based organization
o (Moving toward trial) - around your client's story (why the court
should find the client appealing – not legal facts).
Establish what relationship is with client
 When interview is over, let the client know (1) what you are going to do for them,
(2) how much you will charge, (3) when you are going to do it.
 If you are not going to represent them, let them know in writing, i.e., send them a
letter.
Talking with Client about how to proceed
 Need to talk to client about Condonation - In MS, there is no legal separation. If affair
begins post separation, that is adultery in MS and grounds for divorce.
 Tell client not to dispose of any assets during the divorce.
What is attorney going to file?
 Sandra will file a petition for divorce (for grounds and in the alternative ID). In
petition Sandra must ask for property division, house, insurance, alimony, and child
support. If Sandra does not ask for financial matters, she cannot ask for them at trial.
This is not true of custody.
 Summons - is a Rule 4 summons. It is essentially commanding John to respond
within 30 days and letting him know that he could be in default if he does not
respond in the 30 days. Since there is no true default, Sandra must still convince the
chancellor if John does not show.
 If H has stopped support to W, the attorney may want to request in the petition
temporary support. If she does that, she must have 2 summonses issued. The
attorney sets a date for the temporary hearing, and you have to search a Rule 81(d)
summons on H that tells him to show up on that date for the temporary hearing.
 Affidavit of no collusion with this petition for divorce, since fault based.
 Must also attach UCCJEA affidavit because the couple has children. This affidavit
states where the children are, whom they live with, and any proceedings involving
them.
Counsel client about medical records
 MS recognizes a privilege between a doctor and patient, and psychotherapist and
patient. The other side cannot force side to produce medical records unless
condition is in issue. However, if you do introduce, this opens door for records to be
used in custody.
 MS has always held alleging habitual cruel and inhuman treatment for seeking
custody does not put condition in issue.
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o Problem:
 John’s characterization of the marriage:
 Emotional abandonment
 Overspends, which causes friction
 Self-absorbed
 Relationship/adultery?
 Mental illness
 Anti-social
 Controlling decisions (got pregnant without telling him)
 She changed
 Sandra’s characterization of the marriage:
 2 affairs
 He belittles her
 Temper, verbally abusive
 Throws things
 Requires perfection
 Heavy drinker
 What John has to prove:
 Adultery
o Infatuation or general adulterous nature (e-mail)
o Opportunity (Chicago, Peabody lunch); look at cell phones, credit
cards
 Habitual drug use: Some people will try to do this based on prescription
drugs. That is clearly wrong.
 What Sandra has to prove
 Desertion
o Willful (with the intention of leaving the marriage)
o It has to be for a year (If your client sleeps with her husband again, it
has the potential of stopping the time running.)
o His defense to desertion: she constructively deserted him. Because
she was so absent and difficult to deal with, it drove him away. A
piece of that can be a refusal to have a sexual relationship. She
basically kicked him out. (You can separate within a house if you
moved into separate bedrooms). Even if he did desert her, he tried to
get back together and she refused.
o It all turns on whether her condition of his giving up the friendship
with his female friend was reasonable or not.
 Habitual cruel and inhuman treatment:
o Two types:
 Conduct that is so cruel and so unfeeling that it causes mental,
physical or emotional damage to the other. It is plaintiff
specific. What is cruel to one person is not necessarily cruel to
another.
 If you are involved in a case that doesn’t involve
physical abuse, you need medical evidence.
 Conduct so outrageous that makes the marriage intolerable
(we rarely see that).
o If a party’s mental state is an issue with regard to custody of a child,
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medical records can be sought through discovery.
 Habitual drunkenness: It has to be at a level that interferes with the marriage
Procedure: Say John and Sandra have been talking to their attorneys, and Sandra
decides to file. She files a petition for divorce.
 Venue
o If it’s an ID divorce only, then venue lies in the county where either
one of them resides. Assume that John is still in Lafayette County and
Sandra moves to Lee County. For an ID divorce, she can file in Lee
County or Lafayette County.
o If it’s a fault-based divorce, she can file in the county where the
defendant lives or in the county where they lived during their
marriage. That is important because in MS there is a long line of cases
that say that venue in divorce actions is jurisdictional. That means
that if she files in the wrong county, (1) you can’t get it transferred to
the right county; (2) venue can’t be waived; (3) if you get a divorce in
the wrong county, that divorce is void.
o Sandra’s petition will allege three different grounds, and in the
alternative to that she will request an ID divorce. She will have to
plead everything she wants to recover. The defendant will have to set
out any affirmative defenses.
 Summons: Then she will send a rule 4 Summons. Even though the summons
says you have to answer in 30 days, a default judgment can’t be taken. If he
doesn’t answer, he is not entitled to further notice, but he can still defend
(but he can’t raise any affirmative defenses that should have been in the
answer). Everything else in family law is handled under Rule 81.
o Rule 81(d) changed the procedure:
 30 day matters:
 Independent custody actions
 Independent child support actions
 Termination of parental rights
 Adoption
 Paternity actions
 7 day matters:
 Modification
 Contempt
 Temporary matters in divorce
 What does rule 81 do? Three primary differences:
 You issue a rule 81 summons, which orders the
defendant to appear on a date certain and a defendant
does not asked to answer (as opposed to the divorce
Rule 4 Summons).
 If you serve the wrong kind of summons and the
defendant does not show up, the judgment is void.
Lawyers get this messed up all the time.
 The matter can be continued but only on the date for
which it was set and get an order signed that continues
it to another specific date. If you don’t do that, you’ve
lost service of process over the defendant.
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 Once there is an attorney involved in the case, you can
serve on an attorney under Rule 81. But some
chancellors don’t agree with that.
Uniform Child Custody Jurisdiction and Enforcement Act Affidavit – you have
to file this
For fault based divorce – have to file the affidavit of no collusion
The other document you need to start thinking about is the Rule 8.05
financial statement. One thing that can mess up the case is expenses.
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ELECTRONIC SURVEILLANCE
o Wire tapping a phone: Wiretapping Act makes it illegal to tap someone's phone without
court authorization.
 5th Circuit exception: "Interspousal Wire tapping Exception" - Even though cannot
wire tap someone else's phone, may tap spouse or child in martial home. [MS also
recognizes]
 Reasoning: Person can pick up extension phone and listen to conversation, so
why not wire tap.
o Note: This ONLY applies where spouses are sharing marital home. If
spouse has been kicked out, he or she cannot sneak back in.
 Also, spouse must physically place wire tap on phone, can not hire private
investigator to install tap.
o Audio Devices: Title 3 of the Wiretapping act also covers capturing "audio transmissions".
It is illegal to put a tape recorder in home where sound activated.
o Video Devices: the Federal Wire Tapping Act does not cover video recording devices. So, if
no sound, you can place a video camera on specific pieces of furniture.
 Problem: Tort issue of invasion of privacy
o Email, Internet, Chat, Chat Rooms: Wire tapping act was amended to include Electronic
Storage and Transmissions Act. It makes it illegal to:
 Access electronic communications in transit
 Access stored electronic communications without authorization
 Example: Once have seen an email, it is done transmitting, so pulling it up on
hard drive, is NOT catching it in transit. According to the courts, this is live
memory.
 Distinction: If it is in hard drive, it is not in storage for the purposes of the act.
But, if it is on google or yahoo server, this is a violation of Title 3, storage.
 Key Logger - records key strokes. Some cases say this is not a violation of the
act, because it is not catching anything in transmission or storage.
 Spyware - catches pictures on computer screen. Court said this IS a violation
of Title 3.

CHILD CUSTODY AND VISITATION
o History
 In 1983, the tender years doctrine, in Albright v. Albright, was replaced by the
presumption that fathers and mothers are equally entitled to custody of their
children. Modern custody decisions are based on a child's best interest.
o Presumptions
 Presumption of Parental Equality: It is presumed that mothers and fathers are
equally entitled to custody.
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Presumption in Favor of a Natural Parent: It is presumed that natural parents
are a child's best custodians. BUT custody may be awarded to a third party over a
parent's objection only if:
 The parent is unfit (parent engaged in conduct presenting a genuine serious
danger to child) or
 Has abandoned the child.
o Abandonment = any course of conduct on the part of a parent evincing
a settled purpose to forego all duties and relinquish all paternal claims
to the child.
 Note: The presumption does not apply to a parent who has voluntarily
relinquished legal custody of child.
 Presumption Against Custody to Violent Parent: There is a rebuttable
presumption that custody should not be granted to a parent with a history of family
violence.
 If the presumption is raised and not rebutted, custody should be awarded to
the nonviolent parent without consideration of the Albright factors.
 The presumption may be rebutted by showing that, notwithstanding the
violence, the child's best interests are served by placing custody with the
parent accused of violence.
 Presumption in Favor of Joint Custody Upon Request: If both parents request
joint custody, it is presumed that joint custody is in the best interests of the child.
 If one person has sole custody, then other parent is non-custodial with visitation
(extended visitation allotment looks like de facto joint custody).
 Note: "out of court" custody agreements are NOT binding.
o Two Types of Custody
 Legal custody: who has decision-making power over schools, medical treatment etc.
 Physical custody: who the child spends majority of time with
o The Best Interest of the Child Test: Albright v. Albright (custody actions between natural
parents)
 Introduction
 In Albright v. Albright, the court abandoned the maternal preference, holding
that a child's age is but one of several factors for consideration in a custody
award.
 The Albright best interest test governs custody determination between
unmarried persons.
 A step-parent/grandparent is treated as a third party in a suit for custody;
the natural parent is presumed to be the child's best custodian.
 Findings of Fact: The chancellor is required to make findings of fact with
regard to each of the factors.
 Don't have to win on all factors, or even the majority in some cases
o Albright's 12 Factors:
 Age, Health, and Sex of Child
 The mother is still considered the best custodian when a child is very young.
 For an older child, the same-sex parent may be considered the better
custodian if all other factors are equal.
 Note: the MS Supreme Court has ruled a 4 & 7 y/o are past the age that
requires special care.
 Continuity of Care of the Child Prior to Separation (one of the most important):
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A parent who has been a child's primary caretaker may have a substantial
advantage in a custody action.
 To determine who has been the primary caretaker, courts consider: who
bathed and dressed child, put them to bed, took them to school, prepared
meals, arranged social activities, dealt with medical care, purchased clothing,
provided discipline, read to the child, played with them, and made
educational arrangements.
 Note: In some states, this factor is so important that it rises to the level of a
presumption. In MS it’s just a factor, but it’s a more heavily weighted factor.
 Note: Although factor is "prior to separation" there have been several cases
where custody has been awarded to a parent based in part on care during
separation.
Parenting Skills: This factor encompasses a parent's ability to provide physical care,
emotional support, discipline, and guidance.
 This is where it gets nasty. Detail from outside testimony is essential here.
Capacity to Provide Primary Child Care
Employment Responsibilities: Employment responsibilities generally focus on the
suitability of a parent's job for providing childcare. The fact that one parent's work
schedule allows more time with the child weighs in favor of that parent. (Note:
Proximity of employment to home is also important.)
Physical and mental health and age of parents. Physical health is not an issue unless
it prevents them from taking care of the child. Mental health is a much bigger issue.
The other party can petition the court to open up medical and psychiatric records.
Emotional Ties: These are usually equal and don't favor either parent over the other,
court likes to avoid.
Moral Fitness, including an extra-marital relationship, can be a factor, but it cannot
be a sole reason for denying custody unless it has a negative effect on the child. We
have two decisions that the same rule applies whether it’s a same sex or opposite
sex relationship. Bell doesn’t think that this is being applied.
Home, School, and Community Record of the Child
 Important when parents live in different school districts
 Most times this plays in favor of the parent who is living in the community
where the kids go to school. Occasionally, if the kid is doing poorly, it can
favor the parent that moves.
Preferences of a child over the age of 12
 A child's preference is simply one of many factors for consideration and does
not appear to be given substantially greater weight than other Albright
factors.
 Sometimes the child’s choice is a result of an alienation attempt by one
parent.
Stability of the home environment and employment of each parent (frequent moves,
other people living in the home, what’s the housekeeping like, atmosphere of the
home, structure, neighborhood)
 Courts prefer parents that are remarried, or have other children living in the
household, unless the remarriage is turbulent.
Other relevant factors
 Separation of Siblings: There is a strong preference in MS law for keeping
siblings together unless unusual circumstances justify their separation.
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Parental Interference: Custody has been denied as to a parent based on
interference with the other parent's relationship with the child.
Religion: Religious training cannot be the sole reason for a custody decision.
But, the fact that a parent offers religious training may be considered as a
positive aspect of a stable home environment.
Role of extended family
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o Joint Custody
 Forms of Joint Custody
 Parents share both legal and physical custody
 Parents share joint legal custody, 1 parent having primary physical custody.
 Parents may share physical custody with one parent having sole legal
custody (uncommon)
 Joint Legal Custody - gives the parties shared decision-making authority with regard
to a child's health, education and welfare.
 Joint Physical Custody - allows each parent to have significant, although not
necessarily equal, time with a child.
 May be structured in a variety of ways. Time with a child may be divided on a
weekly basis, or by alternating weeks, months, half-years or years.
 ****FACTORS
 Parental Fitness
 Ability to Cooperate
 Proximity of Parents to each other
 There is a presumption that joint custody is in the best interests of a child
when both parents request joint custody.
 The Court should consider the Albright Factors in making an award of joint custody.
 Joint Physical Custody v. Sole Custody/Visitation:
 There are significant legal consequences attached to each form of custody. If
parents accustomed to joint decision-making disagree, the parent with sole
legal custody has authority to make unilateral decision regarding the child.
 A move by one of two joint custodians triggers an Albright analysis to
determine which parent should take sole physical custody.
 In contrast, when a parent with sole custody relocates, the relocation is not in
itself a reason to modify custody.
o Visitation (the term traditionally used to describe the time a child spends with the noncustodial parent. Visitation means the amount of time a parent will have with a child and
how that time will be structured.)
 Basic underlying principle: the non-custodial parent should be able to have as
normal as possible relationship with the child.
 Scope of Visitation: Except in unusual circumstances, a non-custodial parent is
entitled to unrestricted standard or liberal visitation.
 Standard Visitation: two weekends (every other weekend) a month until Sunday
afternoon and at least 5 weeks of summer vacation plus some holiday visitation.
 Awarding less is an abuse of discretion unless there is some concrete proof of
actual harm to a child.
 You also see a lot that the non-custodial parent will get substantial or
extended visitation (three day weekend, Wednesday nights).
 Modern Trend: The modern trend is to get away from the dichotomy of
custodial/non-custodial parent and to use the term "parenting time"
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Restrictions on Visitation: A non-custodial parent has decision-making authority
during visitation and broad discretion as to the manner and place for visitation.
 A court may restrict visitation only if some aspect of visitation is harmful to a
child.
 Appropriate visitation restrictions often relate to:
o Abusive behavior
o Drug or Alcohol abuse
o When child is very young and one parent was the primary care giver
o Child is really disturbed by the process.
o Visitation cannot occur in the presence of certain people.
o Mental Illness
o Parent's sexual conduct
o If there is concern about parental kidnapping - may require parent to
post bond.
 Restrictions may include ordering supervised visitation as well as ordering a
parent to enter counseling or a treatment program.
o Family member may do supervision, or DHS, but if family member
there is concern will let person do whatever they want.
 Drafting Visitation: If parents work well together, may draft a flexible visitation
schedule. But, to avoid going back into court, they should have a well-defined back
up plan.
o Third Party Visitation (we discussed very little of this information)
 History - Typically, visitation has been available only to the biological parents. One
parent gets custody, while the other gets visitation. However, twenty-five years ago,
the AARP lobbied for grandparent visitation statutes. As a result, all states, including
MS, passed such statutes.
 Rule: Natural Parents have a fundamental constitutional right to make decisions
regarding child rearing. Troxel v. Granville
 Miss. has two types of grandparent visitation.
 Type 1: if a grandparent's child has lost custody of the grandchild, the
grandparent can get visitation if it's in the child's best interest. This is
probably unconstitutional.
 Type 2: provides that if a grandparents own child denies them visitation then
the grandparent can get visitation if they prove: 1) That their child
unreasonably denied visitation 2) They had a viable relationship with the
grandchild (some financial support of 6 months and substantial visitation/
overnight visitation over a 1 year period and that it 's in the child's best
interest). This is probably constitutional under Troxel since it requires that
the parent be unreasonable.
 Courts must also consider factors from Martin v. Coop
 Potential disruption in the child's life
 Suitability of the grandparents’ home
 The child's age
 The age and physical and mental health of the grandparents
 The emotional ties
 Grandparents moral fitness
 Physical distance between homes
 Any undermining of the parents discipline
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Grandparent’s employment responsibilities
Grandparents willingness not to interfere with the parent's rearing of the
child
 Note: Mississippi has denied extending visitation to 3rd parties other than
grandparents.
o Custody between Natural Parents and Third Parties: In a custody dispute between a parent
and a third party, there is a presumption in favor of the natural parent as custodian.
The traditional test for awarding custody to a third party requires a showing of parental
unfitness. Note: Stepparents are also third parties with regard to these rules.
 Presumption in Favor of Natural Parents
 When a third party seeks custody, the best interest/Albright analysis DOES
NOT apply.
 General rule, a third party must prove that a parent has
o Abandoned the child,
o Is unfit to have custody, or
o Has engaged in conduct so immoral as to be detrimental to the child.
 Unfitness and Immoral Conduct: To award custody to a third party based on
parental unfitness, a court must find that the parent engaged in conduct
presenting a genuine serious danger to a child, i.e., conduct that is so severe
that it places the child in physical, mental, or emotional danger.
 Abandonment: Abandonment is any course of conduct on the part of a parent
evincing a settled purpose to forgo all duties and relinquish all parental
claims to the child. This is very strictly construed, but MS has created two
exceptions:
o Constructive Abandonment ( a person's long absence from a child's
daily life) (Hill v. Mitchell – mother left child for a decade with the
grandmother, visiting occasionally). Two Parts:
 Parent must have removed themselves from the child's daily
life AND
 Relinquished parental authority to someone else over a long
period of time.
o Relinquishment of Legal Custody (Grant v. Martin): The natural parent
presumption does not apply when parents voluntarily relinquish
custody of a minor child, through a court of competent jurisdiction.
 Facts/Holding: Mom and dad were getting divorced, and both
of them were in a bad situation at the time, but neither one
wanted the kids, so they agreed that his mother would take
custody. 5 or 6 years later, the mother decided that she
wanted custody back, so she filed for custody against the
grandmother, and the court held that when a parent
relinquishes custody in a legal proceeding, they waive or lose
the natural parent presumption. So the court was just to apply
an Albright test.
 Note: One concern about this: when somebody is a custodial
parent and they go into the military, they are required to give
custody to someone else. also done for medical reasons or for
school districts.
o Custody Actions Between 3rd parties: Apply the Albright factors.
o Custody Modification
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Jurisdiction: Within a state, only the court issuing an original custody order has
jurisdiction to modify the order.
Procedure: A petition to modify custody is governed by rules set out in Rule 81 of
the MS Rules of Civ Pro. The parent will file a petition under Rule 81 (d) which is a
Petition to Modify Custody. You get a hearing date set thirty days away. You send
the defendant a Rule 81(d) summons that says show up on such and such date and
she doesn’t have to answer. She may file a counter-petition. If she designates it as a
counterclaim, then that is all considered to be one action, so for purposes of appeal,
the last part to be dealt with triggers the appeal period. A petition to modify
custody must properly plead the three-part test for modification of custody.
Four Most Common Triggers for Modification:
 New relationship
 Genuine harm to the child
 Relocation
 Parental alienation
Two Themes of Custody Modification:
 Look out for the best interest of the child
 Stability is really important
Specific Common Issues
 Child’s preference: Our case law now says that a child’s preference standing
along is not in and of itself a material change in the circumstances. Like
relocation, you’ve got to show child’s preference plus. Bell has real mixed
feelings about this.
 Cohabitation: At one time, if the custodial parent lived with someone, he or
she automatically lost custody. Now you have to show adverse impact.
Traditional Three Part Test for Modifying Sole Custody: The party seeking
modification must prove:
 There has been a material change in circumstances (negative change in
custodial parent, e.g., parent remarries),
 The change has been adverse to the child, if so then,
 Given this material adverse change, is it in the best interest of the child to
move from the mother’s home to the father’s home? (Albright test).
o Note: Occasionally, the court does away with adverse effect
requirement because the situation is so dangerous the court is not
going to wait for child to be injured. (Examples: Mother marries a
child molester; mother takes two year old to trailer where people are
selling crack).
o Note: An improvement in the non-custodial parent’s home does not
qualify as a material change.
o Note: In MS, if you have sole custody and visitation and the parent
with sole custody decides to move, relocation is NOT a material
change in circumstances. It does not trigger an Albright analysis. (This
is not majority rule in US). To get around this lawyers have placed
provisions in custody decree, relocation is a material change - this is
not an enforceable provision. So what you have to do if you are
representing the non-custodial parent is that you have to show
relocation plus.
Exception – The Riley Test: If a child has been in genuinely adverse circumstances,

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since the decree and the non-custodial parent's circumstances have improved, then
that can be a material change that takes you to the Albright factors. It is meant to
address the scenario where at time of decree, both parents were in difficult times.
Now, one parent is in better place.
 Summary: When there is sole custody in one parent, if child is not in
genuinely adverse circumstances at the outset of the decree, traditional test
is used. If in adverse circumstances, go to Riley Test.
 Joint Custody Test
 If the parents have joint physical custody, modification is triggered if:
o One parent is relocating
o Parents cannot get along
o Danger to child
 Note: because the remaining parent does not have to prove adverse effect of
the relocation, he is at a definite advantage over similarly situated parents
who are non-custodial with visitation rights.
o BE SURE TO KNOW THE TRADITIONAL, RILEY, AND JOINT CUSTODY MODIFICATION
TESTS.
 Modification of Visitation:
 To modify a visitation order, a petitioner must prove that the visitation order
is not working and that it is in the child's best interest to modify the order.
 It is not necessary to prove a material change in circumstances.
 However, one parent's dissatisfaction with the arrangement does not
necessarily warrant modification.
PATERNITY
o Current Paternity Action: A paternity action today is focused on genetic testing. A
chancellor shall order a test on the request of one of the parties. It is not discretionary. If it
proves to a 98% or higher certainty that the person is the father, they are presumed to be
the father unless can rebut by arguing were imprisoned or out of the country at the time of
conception.
o PARTIES TO BRING PATERNITY ACTIONS: suit may be brought by (1) the child, (2) either parent,
including a putative father, or (3) DHS.
 75% of paternity actions are brought by the Department of Human Services. When a
woman applies for benefits, if the woman is not married she is asked to provide the
name of the father of the child. The DHS legal team then files suit for paternity and
child support if it is not already established.
 Note: When DHS brings suit they may only bring suit for paternity and child
support, but are unable to litigate custody.
 When a paternity order is entered, child support can only go back 1 year prior to the
filing of the petition.
 Man must still pay child support if wife/girlfriend told him was using birth control
and was in fact not - in essence fraud.
o PROCEDURE
 Often a court will appoint a guardian ad litem.
 No right to a jury trial
 Court shall order the alleged father and child to submit to genetic tests upon the
motion of either party.
 Usually it’s just a child support award, assuming that the mother is the custodial
parent. BUT it is not an implied award of custody to her. The father can still come in
and litigate custody under the Albright factors. So it really makes sense for the
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mother to try to litigate custody in the paternity action.
o DEFENSES TO PATERNITY SUITS: If a man is the biological father of the child, and is sued in
paternity for child support, there is NO defense to that. The fact that man was defrauded
into believing that no children would be born, or that did not know that child existed - is
irrelevant.
o The child support award here is different from other child support awards in three ways.
We’ll come back to this.
o Note that the child support award used to be less than for a marital child, but that has
changed (doctor case).
o NEW CASES: DISESTABLISHING PATERNITY
 In loco parentis – Griffith v. Pell (changed the rule in Mississippi)
 Facts: A divorcing wife sought to establish in her divorce and in a separate
paternity action that another man had fathered the child her husband
believed to be his. The child was born prior to the marriage but while the
couple were cohabiting. The men filed a petition for the court to dismiss the
mother’s paternity action.
 Holding/Discussion: The court looked to the doctrine of in loco parentis
(used when grandparents who were acting in the role of parents were held to
have the right to notice in the case of adoption). The court said, go ahead and
perform a paternity test because it is important for a child to know what
their genetic history is. If it turns out that the presumed father is not the
father, he may have rights of custody. Third, the biological may not have
rights of custody. Fourth, they can fight this out in an action other than a
paternity action.
 Rule/Doctrine: theory of in loco parentis. If someone has acted in the place
of a parent, then that person may have rights as a parent. There are no
guidelines; it just opens the door to parenthood.
 Other Doctrines (other states – we need to know this)
 Most narrow case law doctrine: paternity by estoppel (or equitable
fatherhood). This is limited to the narrow paternity fraud setting. Three
elements: (1) a man has been defrauded into thinking that he is the father of
the child; (2) based on that belief, he has developed a parent-child bond; (3)
it’s in the child’s best interest for the relationship to continue.
 Psychological parent/de facto parent/ equitable parent: This is not limited to
men who believe themselves to be the fathers of children. This requires
consent of the natural parent that the psychological parent act in the role of
the parent. They live in the same household. And a significant enough time
has passed that they have formed a parent-child relationship.
o Example: Lesbian couple who had lived together for some period of
time. Mother and partner. Mother had planned to have a child via in
vitro fertilization. Partner went with her to select the sperm, was
involved in the process. The partner went with her to the birthing
classes, helped her deliver the twins, etc. They refer to both women
as ‘mother’. Both took care of the children, etc. They acted as parents
and a family unit. Then the relationship ended. For a while after they
broke up, they alternated living in the house with the children. After a
while the partner moved out, and she had visitation and paid support.
Then the both entered a new relationship and the mother didn’t want
the partner visiting anymore. So the partner sued for visitation rights.
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The mother argued that this violated her constitutional right to
privacy.
o Holding: The NJ court said there is a right of privacy, but under special
circumstances, when someone else has become a psychological
parent, there is an exception to that if it’s in the best interested of a
child. The court rejected the mother’s claim that the partner had to
pass the third-party visitation test.
o Rule: In order for the third party to be considered a psychological
parent, the natural parent must have (1) both consented to the
relationship and fostered or encouraged that relationship, (2) they
lived in the same household, and (3) the third party must have acted
as a parent (nurtured and supported). In this case, the partner had
done that. (4) This relationship must have continued for long enough
that they have actually formed a bond that is the equivalent of a
parent.
o What does that mean? Once you meet those four elements and
establish that someone is a psychological parent, for the purposes of
custody and visitation, they are almost on equal terms with the
natural parents. In MS terms, you would apply the Albright factors.
They added one twist to it. They said that the biology should be a
factor in that analysis. For purposes of visitation, they are on equal
footing.
o Comment: This could obviously apply to a step-parent. What
concerns Bell about it is that there is not an expression of intent on
the third party’s part to assume a permanent role as a parent. A
babysitter has also claimed to be a psychological parent. That’s why
you have to have the element in there of the natural parent’s consent.
o Note: If you find that someone is an equitable parent, you probably go
straight to the Albright factors (the court hasn’t specifically addressed
that).
 The Mississippi position: in loco parentis doctrine. It doesn’t really require
the natural parent’s consent. It doesn’t even really require that they live in
the same household. So MS is in the broadest segment of the states in
addressing this issue. Justice Cobb wrote a strong concurrence urging that
the MS court abandon this doctrine and use one that is more defined.
 Some states have decided that this is creating such a mess, that they have
passed statutes saying that if you want to challenge paternity, you have to file
something within two years of the child’s birth.
o Emerging Issues in Paternity:
 Example: Couple has been married for extended period of time. Presumed father
learns that he is not the biological father of child.
 Majority Approach: Adopt a "best interest test". These states ask if it is in the
child's best interest to even permit a paternity action to go forward. So,
before any tests are ever ordered, the court will ask if it is in the child's best
interest to find out who the biological father is.
 MS Approach: (Griffith v. Pell) MS does not take the best interest approach.
Instead, it says that paternity is about biology. Therefore, paternity actions
go first. Once a man is determined to be the biological father that does not
necessarily give him rights to the child. The court instead applies the "in loco
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parentis" doctrine - doctrine that deals with someone who has assumed the
role of the parent. When someone has acted in loco parentis, they may be
responsible for child support, so may have some rights in custody.
o This holding has created great confusion for MS chancellors.
 Proposals to Correct Confusion:
 CA - suggests that all children be DNA tested at birth.
 Two Year Statute of Limitations - If there are questions concerning paternity,
it must be brought within 2 years of the child's birth or forever be silenced.
o Differences that occur when child support is ordered through paternity proceeding rather
than divorce action.
 There is lump sum settlement ability, instead of payments until 21 (with divorce).
(Note: If challenged, it would likely be held unconstitutional)
 Historically, upper income fathers have not been ordered to pay the same amount of
child support if the child is born out of wedlock. He is ordered usually to pay at a
substantive level.
 Daniel v. Baine - (this changed last year). Dr. fathered child out of wedlock.
He had to pay 1200, health insurance, dental insurance, ½ million dollar life
insurance policy.
 Fathers whose paternity is established through DHS action can be ordered to
support adult disabled children who are unable to work.
 Modification
 Note: Primarily non-martial children are treated equally to marital children, but
these are differences.
o STATUTE OF LIMITATIONS (for seeking child support in a paternity action)
 DHS can only bring action until child is 18.
 Mother and child can bring action until they are 21. Then have 3 years to bring the
action. At 24, you lose the right to file to found out who the father is.
o Three Times When You Would Want to Bring Paternity Action:
 Child support
 Establish paternity to inherit from someone
 Want to establish relationship
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ADOPTION AND TERMINATION OF PARENTAL RIGHTS (p.535)
o Introduction
 2 different things that happen in connection with adoption: (1) termination of
parental rights and (2) new parent child relationship is created with the adopting
parents.
 They will have the same custody rights, child support obligations, etc.
 The termination and the adoption can take place independently or in the
same proceeding.
 Termination of parental rights – termination can occur in a stand alone action or in
adoption. Stand alone actions have a set of 10 or 15 grounds. Adoption has a
different set of grounds. They are very close but not identical. Stand alone – you
can only use the grounds in 93-5-15. If you’re doing termination in adoption, you
can use the grounds in both sections 15 and 17 (the adoption chapter - catch-all
other reasons). So you have broader grounds in adoption actions. We don’t have to
learn those grounds.
o If independent termination of parental rights, then governed by 93-5-15 (usually when a
child has gone into the youth court system through DHS).
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Note: As attorneys, you are mandatory reporters of child abuse, which overrides
your duty of confidentiality to a client.
 Typically DHS will try to reunite the parents and the children once the child has
been removed from the home.
 Grounds for independent termination of parental rights: very serious grounds. We
don’t have to learn them in detail, but they cover abandonment, serious abuse
(physical/sexual), or serious neglect. (These are all in Chapter 15.)
 Abandonment: complete failure to contact the child
 Desertion: "forsaking one's duty as well as a breaking away from or breaking
off associations with some matter involving a legal or moral obligation
 Failure to Contact: for a child under 3 = failure to contact for 6 months, for a
child older than 3 = failure to contact for a year
 Agency Custody: if child has been in custody for a year and the agency has
made for the return of the child, and the parent has failed to exercise
visitation.
 Abuse
 Ongoing Parental behavior: mental illness, drug abuse, etc that prevents the
parent from providing minimal care.
 Extreme Antipathy: child's "extreme and deep-seated antipathy" toward a
parent or on a "substantial erosion" of the parent-child relationship partly
caused by serious neglect or abuse or prolonged absence or imprisonment
 Felonious Assault or Sexual Assault: if the crime is committed against a child,
even one other than the parent's child.
 Abuse and Neglect
 Voluntary Relinquishment
 Burden of proof: by clear and convincing evidence.
 Representation: There is a case by case right to counsel in these termination
proceedings.
 Note: At that point there is not necessarily anyone waiting for adoption.
o Uncontested Adoption (termination of rights and adoption happen together)
 Who must consent:
 the mother;
 the father if he (1) demonstrates full commitment of fatherhood within 30
days of the birth or (2) diligently attempts to establish a relationship with the
child. (Smith v. Malouf)
o If the man doesn’t know that he had a child until a year later, he is left
out.
 child if over the age of 14.
 Form of consent: The consent has to be in writing and cannot be given before three
days after the child’s birth. (Can’t consent w/in 72 hours of the child’s birth).
 Defenses: A party who has given consent can only withdraw it if he or she can prove
DURESS, which is defined at such a high level that there is not even a case where it has
been met.
 case showing high bar to show duress: In Re D.N.T.:
o Facts: 16 year old had a baby. She lived with her grandmother. The
girl left to live with her dad in Texas, and then they moved to
Mississippi. Her dad lived with a lady named Carol. Carol and her
boyfriend Rick supported the girl and her child. They later wanted to
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adopt the girl's baby. She drew up some adoption papers and the girl
consented to the adoption.
o Holding: The court said that pressure, anxiety and depression are not
grounds to set aside an adoption. Just because the girl is in bad
circumstances doesn't justify setting aside the agreement.
 Note: There have been a couple of cases from the Supreme Court where
Justice Cobb suggested that for a minor to be able to consent to the adoption
of the child the minor ought to have a guardian ad litem appointed.
 Note: minority is NOT a defense. A minor in MS doesn’t have capacity to
consent to an abortion but does have the capacity to consent to put the child
up for adoption.
 Best Interest Proceeding: to decide if these adoptive parents are fit and it’s in the
best interest of the child.
o Contested Adoption: If everyone doesn’t consent, you use the adoption grounds in Title 93
Chapter 17. They look almost exactly like the ones from Chapter 15 but they are not. For
stand-alone termination, you can’t use the grounds in Chapter 17. For adoption and
termination, you can use either.
o Effect of Judgment: Once there is a judgment of adoption, there is a six-month interlocutory
decree where you can attack based on duress. After that, you can only attack based on
jurisdiction.
 Note re: jurisdiction: The jurisdictional base for adoption is whether the child is a
resident of the state, the adoptive parents are a resident of the state, or the adoption
agency is within the state.
 Effect after adoption: After the adoption, the natural parents have no more rights or
responsibilities with regard to that child. There are a couple of cases in MS that
creates some odd exceptions to this rule. Humphrey v. Panel: An unmarried father’s
rights were at stake. And the mother lied about whom the father was, and he was
left out of the adoption, and there was a jurisdiction problem. The adoptive parents
agreed with the father that his parental rights would be terminated but they would
preserve his visitation rights.
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PARENTHOOD ISSUES
o Types of Parenthood:
 Legal Parenthood - (presumed parents and adoptive parents)
 Biological Parenthood - paternity test establishes
 Psychological Parenthood - equitable, de facto etc.
 Intended Parenthood
o Issues Arising under Types of Parenthood
 Can there be more than two parents using these theories
 Should these theories be applied to same sex parents as well as opposite sex parents
 Should these doctrines be applied as strongly to require child support as to require
custody (i.e. if psychological parent doctrine - establishes parenthood should it also
establish child support obligations)
REPRODUCTIVE TECHNOLOGY (very limited regulation of this area)
o Non-traditional Methods of Procreation
 Artificial Insemination - Husband and wife for some reason are not able to conceive
naturally. The husband’s or a donor’s sperm can be injected into the woman and she
can conceive.
 Usually governed by the Uniform Parentage Act. In 1973 as this technology
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was being used more often, the act was amended. When a married couple
goes through physician assisted artificial insemination, the woman’s husband
is the legal father if he consents, and the donor has no rights or obligations
with respect to the child.
o It doesn’t cover single women, unmarried couples
o Mississippi never adopted it. So in MS there is no law covering the
rights between the parents in artificial insemination.
o Hypo: What if the husband leaves and says he’s not the father? You
could argue the presumption, in loco parentis, psychological parent,
or estoppel. Because of the presumption, he bears the burden of
proving that he did not know and did not consent.
o Hypo: What about unmarried couples? In loco parentis, equitable
estoppel, contract principles (tension because custody agreements are
not binding). This usually does not get litigated.
o Hypo: Other variations: What’s happening more often is that single
women and same-sex couples are choosing a known donor. There is
no statute that governs that. Let’s say the friend comes to the
birthday parties or to the hospital with a gift. What rights does that
man have? If you are representing Joe, what’s your argument that Joe
has rights? Biology, equitable father, etc. But you don’t have to get to
that argument because paternity laws say that he is the father. Some
cases say he has some visitation rights and some that say he does not.
What about the woman’s lesbian partner? Psychological parent, in
loco parentis, a new notion: intended parent.
In Vitro Fertilization: allows actual conception process to occur outside of the
womb and then embryo is implanted into the womb. In process of creating child
have 20-30 embryos that are frozen; usually only 25% successful.
 Can implant an infertile wife with donor egg (brings a biological mother into
mix with two intended parents)
 Rights of biological parents in lieu of intended parents are intermixed
 If biological parents egg/sperm implanted into a married surrogate for
intended parents- must sort out rights of 6 people
 Usually the doctor will create a number of these embryos, implant several in
the mother, and preserve the rest of them. What do you do with those eggs?
In the divorce, she may want to take the eggs and have a child. He does not
want to have a child out there that’s not his child. There is no law on this.
You could define this as property acquired through the effort of both the
parties. Nobody wants to call embryos property. A court divided them
equally between the parties, and it got reversed. The mother could argue
that it’s in the best interest of the child to go with the mother. The problem
with that is that they aren’t really children here. Most have these have
invoked constitutional principles. Hers is to procreate; his is not to
procreate. In every single case, the one wanting not to procreate has
won.
 How other states’ courts have been dealing with this
o Many times, IVF clinic requires a consent form that the parents fill out
before the process is done designating what should be done with the
embryo in the case of death or divorce.
o Louisiana is one of very few states that consider an embryo as a
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human; most states consider it property.
o Georgia is the only that allows legal adoptions of embryos.
o TN SC – Davis v. Davis: Mary Sue and Junior divorce and don’t know
what to do with their embryos. Mary Sue wants to keep them and
Junior wants to dispose of them. The court said the only way they
would give them to her is if she had no other options for pregnancy.
o MA SC – AZ v. BZ
o NJ SC – spouses arguing over the embryos. The husband didn’t want to
procreate but the wife wouldn’t have another chance to have a child.
Right to procreate vs. right not to procreate. The right not to procreate
trumped in this case.
o WA – divorce. Husband wants to donate to another couple while wife
wants to keep them. Court used the best interest of the child analysis
and decided it was better to donate to people who couldn’t have
children and that it was better for the child to have two parents.
o IA – husband wants to donate, wife wanted to implant;
contemporaneous consent is required. If there is no agreement, then
no one gets the embryos.
o Uniform Parentage Act – states do not have to adopt but is a model.
o What if wife uses embryo to have a child after husband’s death? Is the
child an heir? Does the child get the social security benefits that the
wife gets? Most states say no.
 Insurance does not cover IVF – very expensive.
 Another option: a sperm donor and an egg donor, so now you have two more
people involved. So the couple that can’t have the child are the intended
parents. The mother in whom the embryo is implanted is the gestational
mother.
 Hypo: Suppose that the woman can’t carry a child to term either. Then you
have a surrogate mother who will carry the child to term. This is more
common than you would think. Here is where you find a lot of conflict
because you have a woman giving birth to a child who may become attached
to the child. MS law would say that the child is presumed to be the child of
the mother who gave birth to it, and her husband would be the presumed
father. You would go to the paternity statutes, and you have the genetic
parents who were the intended parents. Typically the intended parents and
the planned parents will enter into a contract. She can’t enter into a binding
contract under adoption law until the child is three days old. The intended
parents should get to keep the child because the child would not have come
into being if that couple had not set the whole thing in motion.
 Hypo: What if nobody wants the child? The couple splits up and doesn’t want
the baby, and the surrogate doesn’t want it. The intended parents who set it
in motion would have to put it up for adoption.
 Abortion: The choice over whether to have an abortion always lies with the
surrogate mother. Some states permit surrogacy but require it to be done
under the supervision of the court.
Surrogacy
 Can a surrogate be compensated? Most states allow.
 If surrogate won’t give child up despite contract, go to court, establish
parentage, and get birth certificate issued.
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In MS, ask judge to sign pre-birth order.
Traditional vs. gestational surrogacy
o Traditional: scenario – wife can’t get pregnant, sister volunteers to
carry child, then sister and husband have sex, and sister carries the
child (technically, the sister’s biological child), and gives it to wife.
o Gestational: husband and/or wife embryo implanted into surrogate’s
uterus.
 Usually a surrogate’s insurance will cover the pregnancy.
Stem cell research. Adult stem cells have not been as reliable, so the prime stem
cells come from embryos. There is a debate about whether we should be able to use
these existing embryos. You step from there into the area of cloning. Should we be
able to create embryos to use for research? Controversy is whether people should
be funded to create embryos for the purpose of research.
 SCNT: You take an unfertilized egg. You take the nucleus out of the egg and
take DNA and insert it into the nucleus of the unfertilized egg. You
stimulated it with electricity and it then begins to divide. Then you can
implant it.
 Cloning: If have frozen embryos as a result of intended parenthood, there is a
debate about whether should be able to create embryos for therapeutic
reasons.
o Note: Reproductive cloning brings into question parenthood
CHILD SUPPORT
o Background
 Two things that drove the Change:
 As the divorce rate went up and women as head of household with children
began to increase there were lots of women and children in poverty (in MS
there are about 40% of women & children who fall into this category) AND
 There was an increase in children born out of wedlock.
o Another driving force: the welfare program of the ‘60's had states
paying money for food stamps, Medicaid, etc. So the state was out a
lot of money in situations where sometimes if the fathers had been
paying child support, the state wouldn’t have had to pay so much
money in benefits.
 –> First wave was the creation of IV-D agencies in 1974. It’s Title IV D of the SSA,
which is basically the child support enforcement unit within each welfare
department. Then by the mid ‘80's, there were studies done about increasing
poverty and that lack of child support was a big piece of the problem.
 –> 1988 Family Support Act. Two basic principles came out of this:
 (1) Both parents should support their children at the same level as they
would in an intact family.
 (2) All of the states should establish child support guidelines that were
binding on judges and that if the judges decided to opt out of the guideline
they had to give a written explanation.
 Two goals:(1) increase the amount of support and (2) standardize amount.
Study was done: Based on different income brackets, what’s the typical level
of support?
o E.g. for 2 children
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Income
Percentage spent by family on the
children
 0-20,000
35%
 20-40
30%
 40-60
28%
 60-100
20%
 States were supposed to come up with guidelines to tell what percentage parents
should pay when they split up. Then the states were instructed to come up with
child support guidelines that met three criteria:
 (1) State statutes that are presumptively correct child support amounts.
 (2) If a court was going to deviate from the guidelines, the court had to make
written guidelines based on statutory deviation criteria.
 (3) The deviation had to be based on specific findings of fact that could be
reviewed by an appellate court.
 Other presumption: the non-custodial parent would be ordered to pay child
support in this percentage and that the custodial parent was paying the same
amount in the household.
 By 1989, every state in the country had enacted child support guidelines. Congress
did not tell the states what percentages to adopt, so from state to state there is still a
pretty wide variation.
o 2 different types of child support:
 Income shares method (TN, LA, AL, MS, GA, FL – basically a majority of states use):
The income shares state is going to ask the judge to look at the mother’s income and
the father’s income. The court will add the incomes and see which bracket they
come in and make the non-custodial parent pay the corresponding percentage. This
may alter the bracket in which they fall and therefore alter the percentage. One of
the benefits of this is that it makes it clear to both parties that the mother has an
obligation as well.
 So, Mom is CP and makes $15,000. Dad is NCP and makes $50,000. The
courts will combine the two incomes and put them in the corresponding
bracket. They will each contribute the same percentage, whether it be
household upkeep by the CP or money by the NCP.
 **Flat percentage of income method (MS): The states with this method took away
the brackets and applied the same percentages.
o MS
 1 kid 14%
 2 kids 20%
 3 kids 22%
 4 kids 24%
 5 or more 26%
 In choosing this presumptively correct amount, the legislature limited this to
income that falls between $5,000 and $50,000 of adjusted gross income. The
court is supposed to first calculate adjusted gross income. If it falls within
this range, it just applies the percentage. If it doesn’t, the court has to make
written findings.
 So, a NCP who makes $8,000/yr will pay 20% of his income in child support
just as a NCP who makes $45,000/yr.
 Definition of Income: Adjusted gross income = gross income - federal taxes, state
taxes, mandatory retirement, and other mandatory deductions [doesn’t include

35

health insurance, 401K contributions]. You get another deduction in MS for prior
child support orders (i.e., the first family has priority1). 65% maximum that can be
garnished for child support.
 Sources of Income: salary/wage, yearly bonus, second job, consulting work
etc., benefits (see below)
o Benefits: Social security, veteran’s benefits, etc., is included. The one
benefit there is a question about is SSI, and in some states that’s
excluded from income. Sometimes people change their tax deductions
to increase what they are paying in to decrease child support award.
o Imputing Income:
 Self-employed: You can average the income over several years,
BUT if the payor is hiding income and you can’t prove it, you
can ask the court to impute income to the non-custodial parent
by showing that his lifestyle has not changed.
 Working below capacity: You can also impute income to a
payor who is working below capacity. Example: There was a
man who had a good construction job, and he got called to
preach and was only earning $800 a month. The court said he
had to pay based on his earning capacity of $40,000. One of the
harder questions is that a higher income payor that is making a
lifestyle choice that we regard as reasonable. Say a lawyer is
working at a high paying firm, and you decide to take a
government job, you will still have to pay at the higher rate.
 Income will be imputed on a payer who leaves a job
voluntarily.
 Income will be imputed on an unemployed parent who is able
to work
o Note: Inheritance is NOT included.
Calculation: After calculating the adjusted gross income, you apply the statutory
percentage.
 If the court wants to deviate, it applies these statutory factors:
o A child's extraordinary medical, psychological, dental, or educational
expenses,
o Other special needs of the child,
o Shared parenting arrangements (in a way that alters expenses)
 This has become more and more of a problem. When the study
was done on the amount that families spend on their children,
it was based on the notion that the non-custodial parent would
have about 20% of time with the child. Since then there are
more and more families that are splitting the time equally or
close to equally. Once you reach about 35%, the non-custodial
home resembles the custodial home. There was supposed to
be a federal guideline issued, but it hasn’t come out.
Example: MS man is divorced the first time with two kids. His adjusted gross income is $4000. His
custody support is $800 a month. The man remarries and has two additional children. He gets divorced again.
His support for these children is 4000-800= 3200 (.20) = $640 a month for the second set of children. (There is
no aggregation). However, if man was CP of first family’s children, courts can determine the support
accordingly.
1
36

o If incomes same and 50/50 custody there shouldn't be any child
support
o Age of the child,
o Independent income of the child,
o Spousal support to the custodial parent,
o Total available assets of the parents,
o Seasonal variations in income or expenses of one or both spouses, and
any other adjustment needed to achieve an equitable result
o Dependency exemption: If the non-custodial parent is the highincome parent, then the tax deductions are going to be much more
valuable. A court could order that the non-custodial parent get the
deduction and use that as a reason to raise child support. If it’s not
addressed, then the custodial parent gets it.
 5 steps for Court:
o Determine payer's income base
o Make adjustments or deductions to the income,
o Apply percentages
o Courts can deviate after fact finding
o Certain items can be add-ons.
Expenses included in base support: food, clothing, utilities, supplies, school supplies,
sports events, etc.
 Not included: Add-ons: health insurance (sometimes out of pocket medical
expenses also), life insurance (with the children or the custodial parent as
beneficiary), college (the court can order payment of these above and beyond
the statutory percentages). (Note re: add-ons – these ARE NOT considered to
be deviations)
o Potential danger: the custodial parent is the one who is going to be
making the decisions about treatment without bearing any
responsibility for the costs. –> Sometimes the custodial parent may
be required to pay at least some percentage of the out of pocket
medical expenses.
o Other big add-on: college support (really strange in MS law because
you can’t require your parents to pay for your college in an intact
family).
 MS held in 1960 that college support should be ordered if (1)
the child has the aptitude (= passing grades at a junior college),
(2) the parent has the ability to pay, and (3) the child shows
the appropriate love and respect for the parent.
 Respect: interesting issue with non-marital children
because sometimes there isn’t even a relationship
between the parent and the child.
 Student after age of majority: Technically, a judge can’t
order support after 21. But sometimes agreements are
interpreted as extending beyond majority. So people
who draft these agreements put in there, to terminate at
the end of the semester after the child turns 21. You
have to make this very clear.
 A court may order college support for a one year old
child; argument made as to the aptitude of the child.
37
Court said if the child does not have the aptitude when
it’s time for him to go to college, it can be modified.
 What is included:
 Until 5 years ago, lawyers assumed that this included instate tuition, dorm, fees, books, laptop.
 Saliba v. Saliba: out of state tuition, nice car, etc. The
court held that the obligation was the expectation
commensurate with that particular family (--> CAN
include private tuition, out-of-state, new car, sorority
dues etc.). People then said they were going to have to
start specifying in the agreement what college support
means. The other thing you need to build into
agreement is that when the child goes to college, base
support will be reduced.
o Note: In a lot of states, daycare is an add-on. That’s not the case in MS.
Daycare is very expensive and a lot of times the full support payment
goes to pay for it.
o Private School: Under MS law, that is supposed to be included in the
base award, unless there is some indication that it is important for
this particular child to go to private school.
o When child support MUST be terminated:
 At 21
 Emancipation: if the child is emancipated before 21 (if you can prove a set of
circumstances that proves to the court that a child is living outside the authority of
the parents, then that can be emancipated). Examples are:
 If a child marries; if they move out of parent’s home and start working full
time;
 If child leaves school and starts working full time;
 If child is convicted of a felony + more than 2 years in prison;
 If child enters full time military service.
o When child support MAY terminate WITH DISCRETION:
 Child is 18;
 Not disabled;
 Child has discontinued school and is working full time;
 Child cohabits without the permission of the child support payer = the court may
find that the child has been emancipated; and
 Child is in prison but with less than felony and less than 2 years = child support may
be suspended until the child is released from prison.
o When child support DOES NOT terminate:
 Based on Interference with Visitation
 Visitation and Support are separate and distinct. Non-payment of support
does not justify refusing visitation, and interference with visitation is not a
reason to withhold support.
 Based on child's hostility
 Not a valid reason to terminate support. A parent's duty of support is not
based upon the amount of love shown by a child.
 Agreement
 Cannot terminate by agreement- not binding
38
If the custodial parent prevents the other parent from seeing the child, the parent
CANNOT stop paying child support unless the custodial parent absconds with the
child and hides him or her. The correct response is to petition the court for
contempt.
o Note re: Disability: In some states, support for adult disabled children continues past age
21.
o Mechanics of the Award
 Courts in other states encourage the use of escalation clauses tying support
increases to parents' earnings or an inflation index. MS doesn't really like these.
 One of the three federal acts required that child support be collected through an
income withholding order unless the parties agree otherwise. Unless the parties
agree otherwise, the child support withholding order will be sent to the employer of
the payor. (Most are done this way)
o Modification
 Test for Modification = A parent seeking modification of child support must show a
substantial and material charge in the circumstances of the child or parents since
the decree awarding support that was not foreseeable.
 In determining whether a material change has occurred, courts are to consider the
following factors:
 The increased needs of older children
 An increase in expenses
 Inflation
 A child's health and special medical or psychological needs
 The parties' relative financial condition and earning capacity
 The health and special needs of the parents
 The payor's necessary living expenses
 Each party's tax liability
 One party's free use of residence, furnishings, or automobile, and any other
relevant facts and circumstances
 Note: These factors require proof: (actual proof of expenses, not mere
allegations)
 Note: Modification of support must be based on events since the most recent
support order.
 Note: Modification CANNOT be used to correct a perceived error in an earlier
decree.
 Note: The change must be one that was not foreseeable at the time of the original
order and was involuntary.
 Example: A payor's request to decrease support based on his loss of
severance pay was denied; he was aware at the time of the decree that the
pay would terminate.
 Child Support Guidelines - After the implementation of uniform child support
guidelines in the late 1980s, many states linked requirements for modification
directly to application of the guidelines. In other words, if the current application of
the guidelines to the payer’s income would produce a child support award that is
10% higher than the existing award, then it is presumed that there has been a
material change in circumstances and a modification will be awarded).
 MS adopted that approach only with regard to DHS cases.
 In MS, a modification presumption is in effect for support increases

39







sought by the Department of Human Services. The presumption does
NOT apply in cases brought by a custodial parent or other child support
recipient.
Title IV-D Cases: Modification of child support payable to public assistance
recipients is tied directly to the child support guidelines. Every three years,
upon the request of a parent or its own initiative, DHS may seek modification
of a support order that differs from the amount that would be required by
current application of the guidelines.
o No proof of a material change in circumstances is necessary in the
three year review for adjustment.
Non-IV-D Cases: There is NO similar provision for a presumptive increase in
private actions to increase support.
o An increase in a payor's income alone does NOT necessarily constitute
a material change.
o A custodial parent must present evidence of a child's
 Increased needs AND/OR
 Inflation
 In addition to proving an increase in payor's income.
Guidelines determine amount of support: If a court finds that a material
change in circumstances has occurred, the statutory guidelines apply to
determine the appropriate amount of support.
o If the court deviates from the presumptively correct amount or if the
payor's income level falls outside the presumptive guidelines, the
court must make findings of fact to support the award.
Escalation Clauses: e.g., Mr. Jones shall pay $400 per month or 20% of
adjusted gross income; whichever is greater. Initially the appellate courts in
MS were striking down these clauses, but in Rogers v. Rogers, they began to
approve of them as enforceable when parties agree to them (courts cannot
award them).
Circumstances that are NOT a material change:
o Changes in payor's income resulting from lifestyle choices. Example:
The fact that a support payor has difficulty making payments because
of new debt is not a material change in circumstances.
o A payor may not reduce support based on the birth of additional child
in a later family.
Limits on Modification
o Child support may NOT be modified by an out of court agreement.
o Neither the parties nor a court may modify amounts already due.
(Only payments not yet due and owing may be modified)
Decrease Child support
o Courts are very protective of child support. The material change in
circumstances since the decree must not have been foreseeable at the
time of the decree and was involuntary.
o Same test with one more factor: payor has to prove an unforeseen
material change in circumstances that was involuntary.
o Examples:
 Job change from construction worker to minister (This was a
voluntary choice, modification down denied)
 Health reasons – clearly involuntary
40
Stress related – Must have strong doctor testimony
Lifestyle changes – voluntary change
Military guy who leaves the military: Ask the chancellor to
order temporary child support for the next year to be
reevaluated.
 Early retirement: If you decide to do that, it’s not a reason to
modify child support down.
o To avoid this, draft in original order that income is anticipated and
will be reviewed at later time.
o Note: Bankruptcy: Child support AND alimony obligations are not
dischargeable in bankruptcy proceedings.
o Note: MS doesn’t address whether you were fired for a voluntary act
and how that would affect your ability to modify.



o Enforcement
 Procedure: Custodial parent files a Petition for Contempt (Rule 81(d) action).
 3 things the court will look at: Judgment of Contempt, Arrearages, and some
means of collection in the past due amount.
 Note: Chancery courts retain continuing jurisdiction to enforce child support
decrees. (See detailed discussion of jurisdiction below.)
 Methods for collection:
o Historically, you would seek a judgment of contempt and a judgment
for arrearages (amount due plus interest – interest must be included).
Then you could garnish wages, attach any non-exempt property, and
garnish bank accounts.
o 1996 Act: Client can go into court and file an affidavit of arrearages,
file it in the chancery court lien book, and start collecting on it. The
burden is put on the payor in response to the private collection
attempt to file a lawsuit to challenge it. Bell doesn't know of any
lawyers that have used this.
o Note: Parties may not settle back child support payments.
 Defenses to Judgment for Default:
 Laches and Estoppel: The MS Supreme Court has rejected arguments that
petitioners who delay in suing for arrearages are barred by Laches.
o Example: Laches did not bar an action for child support even though
there was an inexcusable 16-year delay in seeking payment.
 Statute of Limitations: MS has one of the longest statute of limitations for
child support is 7 years after the child turns 21. The running of the statute of
limitations is suspended during a child's minority.
 Violation of Visitation Order: This is NOT a defense.
 Movie Example: Sally and Johnny divorced. Johnny had a job with the state
department but was fired. He paid child support until he lost his job but they
agreed he would about half after that. He hadn’t seen his kids in 2 years
because Sally wouldn’t let him see them until he paid his back support and
started paying the $500/month again.
o Johnny’s 1st defense: Johnny lost his job involuntarily. Even though he
was fired, he didn’t ask for a modification at the time he lost his job –
can’t go back, should have done it already.
o Johnny’s 2nd defense: The couple agreed that he would pay less. This is
NOT a defense. Parties MUST go to court to modify child support.
41
3rd

o Johnny’s
defense: He hasn’t seen his kids for 2 years. Violation of
visitation is NOT a defense to get out of paying back support.
o Johnny could have gotten a modification, but because of the unclean
hands doctrine, he cannot get a modification after the fact. If a payor
seeks modification and he’s in arrears, he doesn’t have clean hands so
he can’t get modification. There is a separate line of cases saying that
when he comes into court, the entry of the judgment of arrearage
cleanses his hands and he can modify.
 Inability to pay: Even if the payor can show true inability to pay, it is not a
defense to arrearages.
Entry of Judgment
 Judgment for Arrearages: In a suit for unpaid support, the court should enter
a judgment for the amount owing with interest from the date each payment
42





Was due.
A court may NOT forgive arrearages. Each payment in arrears
automatically becomes a judgment against the payor.
 Court may NOT suspend collection. A petitioner cannot be
denied the right to collect a judgment for arrearages through
normal collection processes such as garnishment or writ of
execution.
 Attorneys may collect contingency fees for arrearages (may not
collect contingency for ordinary divorces and child support).
Ways to Collect:
 Get a judgment of contempt and get payor to pay in
installments.
 Link to payor to see if there is a deposit in the bank (DHS can
freeze account before going to court - Can do this in another
state to see if hiding assets)
 Tax Refunds
 Land (Can put a lien on it and force a sale - good threat)
 Revoke Licenses - great threat
 Report to a credit bureau
 1996 Act: Client can go into court and file an affidavit of
arrearages, file it in the chancery court lien book, and start
collecting on it. The burden is put on the payor in response to
the private collection attempt to file a lawsuit to challenge it.
Bell doesn’t know of any lawyers that have used this.
Ways to Reduce Child Support Arrearages
 Direct expenditures on behalf of the children (show receipts)
 Can be reduced by the amount of the emancipated child during
the arrearages period.
Proof of arrearages: Many people do not deal with bank accounts and
who don’t keep records. The burden is on her to proof arrearages. If
she is credible, the court may base its arrearages on that.

JURISDICTION
o Summary of Jurisdiction (divorce, property division, alimony, child support,
and custody)

Type of
Action (5
pieces)

Subject Matter Jurisdiction

Personal
Jurisdiction
Service of
Process
43

Divorce

Residence for 6 months (1 of
the parties)


Property
Division

Residence for 6 months


Alimony

Residence for 6 months

n/a (not
required); it is
quasi in rem: the
divorce is the
“thing” – the
state where
divorce is filed
has control
required
(minimum
contacts)
required

Alimony
Modification


required

Child
Support –
key is PJ
Child
Support
Modification

The court that entered that
award ALWAYS has
jurisdiction.
residence for 6 months

required (can be
waived)
personal
service

required (can be
waived)
personal
service

Custody –
key is SMJ


n/a
publication
okay

Custody
Modification

so long as one party remains
in the state that issued the
order, that state has
continuing exclusive
jurisdiction. If everyone
moves, no longer has
jurisdiction
UCCJEA - Default rule: based
on the child’s state – last state
where the child lived for a six
month period with a parent
before the divorce.
so long as one party remains
in the state that issued the
order, that state has
continuing exclusive
jurisdiction. If parties move,
look at (1) home state, (2)
significant connection, (3)
emergency, (4) default
jurisdiction

n/a
publication
okay


Publication
okay
personal
service
personal
service
personal
service
44

Custody
Exception
#1
(Emergency
Rule)


Custody
Exception
#2


Custody
Exception
#3


Forum non
conveniens
Exception


Example: Couple meets at Ole Miss. She is in pharmacy school and is from Texas.
Man is from MS. They go to Texas to get married. They move to MS to live. They live
in MS for 10 years and have two kids. They decide to separate and she moves back
to Texas. He stays in MS. The two kids are in Texas with wife. She has been in TX for
five months.
She files for divorce based on irreconcilable differences in TX. Husband actually has
ground for divorce, because she had an affair in MS. He is not sure if he wants to get
divorced, but if he does he will file in MS based on grounds for adultery. She cannot
file in MS, because she does not have grounds. He files in MS, but he is not sure if he
will go through with the divorce. She is asking for alimony. They are both asking for
property division, child support and custody.
Texas Residency is 4 Months.
Which state can issue the divorce decree?
o Both. MS has subject matter jurisdiction, since husband lives in MS. TX has
subject matter jurisdiction because wife meets residency requirement, 4
months.
Which one controls?
o It is the first one granted. If she files first based on ID, but he gets the divorce
first, the MS divorce is the one that is the effective divorce.
Property Division, Child Support, (Alimony for her): Does MS have PJ over her? Does
TX have PJ over him?
o MS has personal jurisdiction over her because she has minimum contacts
with the state. She lived there for 10 years. MS can order property division,
child support, and alimony. TX does not have personal jurisdiction over him.
(Marriage alone is not enough to constitute minimum contacts)





If the child is physically in the
state, and there is an
emergency related to neglect
or abuse of the child or the
parent, then the state where
they are located can issue an
emergency order.
if the parent has wrongfully
taken a child to another state,
then that state can decline to
exercise jurisdiction.
If there is no home state, the
state is the state where there
is a significant connection to
the custody matter.
MS can refuse to take
jurisdiction because the other
state is a more convenient
forum.

n/a
publication
okay

n/a
publication
okay

n/a
publication
okay
45

o Wife may have to get divorce in TX and then have MS do property division.
How could husband be brought into TX?
o Personal service of process in TX. But, she cannot trick him to go to TX to be
served. (e.g., She can’t set deposition there for that purpose.)
o Husband waives personal jurisdiction
o Enters appearance without preserving the issue that TX does have personal
jurisdiction.
o DETAILS REGARDING EACH PIECE
o Divorce and Financial Matters
 Divorce itself is a quasi in rem action. If someone lives in a state, then
that state by the fact of his or her residence is considered to have a
property interest in the marriage relationship.
 In MS if someone has lived in the state for 6 months the state has
subject matter jurisdiction over divorce, even if it does not have
personal jurisdiction over the defendant. BUT for alimony, child
support, and property division, you have to have personal jurisdiction.
o Custody (Initial Dispute)
 Custody subject matter jurisdiction is governed by the uniform act:
UCCJEA.
 UCCJEA: Home state jurisdiction is the primary jurisdiction. It has
exclusive jurisdiction over custody action.
 Home State Jurisdiction = A state is a child's home state, if the
child has lived there with a parent for the 6 months
immediately before the filing OR if the state was the child's
home state within the last six months. (If the child is not 6
months old, it is since they were born).
 Example: MS was the child's home state. If the mom leaves and
goes to TX, MS is still the child's home state for 6 months. So, if
Dad files in MS within 6 months of time she leaves, he
preserves jurisdiction.
 No Home State Scenario: Mother left MS 8 months ago, and
went to Idaho for 4 months with children. She has been in TX 4
months.
o If there is no home state, then a state with SIGNIFICANT
CONNECTIONS to the child has jurisdiction.
o MS will claim it has significant connections and so will
TX. This is the one time where have two states claiming
jurisdiction.
o In this case, FIRST TO FILE WINS. (i.e. only applies to
significant connections)
 Emergency Jurisdiction - If a child is physically present in a
state and there are allegations of abuse, neglect or
abandonment, then the state where the child is located has
emergency jurisdiction. Under the UCCJEA, if a state claims
46



emergency subject matter jurisdiction, if that is not the child's
home state, the emergency jurisdiction may only be temporary.
Default Jurisdiction = If no state has subject matter jurisdiction,
and it is in the best interest of the child, the state can claim
jurisdiction.
Forum Non Conviens Exception: MS can refuse to take
jurisdiction because the other state involved is a more
convenient forum.
o Example: Mom has been in TX for 5 months, so she has
residency (4 months) and can file for divorce. She,
however, cannot get custody jurisdiction because her
child has only been there for 5 months (has to be there
for 6 months under UCCJEA). MS is the child’s home
state and is the only place can litigate custody. (Note:
Some attorneys will try custody in TX, but would be a
void custody order under MS law.)
Modification: Once a state (or a court within that state) has entered a
family law order of any kind, that state has continuing exclusive
jurisdiction to modify that order. No other court can modify that order
unless one of those jurisdictional issues applies.
 A court may not modify another state's custody order unless
the modifying court would have jurisdiction to make an initial
award and neither the child nor either parent currently resides
in the state issuing the order.
o Example: Couple got married on the gulf coast and
moved to Oxford. They have to go back to Coast unless
the Chancellor agrees to transfer matter. (Alimony,
Child Support and Custody are most likely to be
modified)
 Custody Order:
o Example: We have a MS custody order. Mom is in TX
with the kids. MS gave mother custody. Now, she has
remarried and Dad is uncomfortable with the new
husband. He thinks that the new husband is abusing his
children. He wants to file a custody modification action.
Under the UCCJEA, as long as one party remains in the
issuing state (state that issued the order) the state will
have continuing exclusive jurisdiction.
o When all parties have moved from the state that issued
the order, then you apply rules based on home state,
significant connection, emergency, and default
jurisdiction.
 Example: Husband moved to TN. MS loses its
continuing exclusive jurisdiction. Now, we go to
47

the child's home state. The kids have been in TX
for three years since the decree. Now,
jurisdiction to MODIFY the MS order is in TX.
 However, he could still try to use emergency
jurisdiction if the children visit him in TN (since
abuse) but it would be temporary jurisdiction
that would have to be transferred to TX.
o Note: A custody modification is a RULE 81 PETITION 7day matter.
o Note: You can also use a habeas proceeding in the state
the order was issued. This can be used in a county other
than the one the original order was issued in.
Relocating within MS: if the parties are moving from county to
county, once a county in MS has issued an award, that county
has continuing exclusive jurisdiction even if everybody moves
from that county (within MS). It can be transferred to the
other county, but that same county always has continuing
jurisdiction.
o Child Support
 UIFSA: the Uniform Interstate Family Support Act governs Child
support. This is the parallel act to UCCJEA and was enacted to create
uniformity in who can modify child support orders.
 This act does not really address subject matter jurisdiction. If a
state has subject matter jurisdiction and personal jurisdiction
it can issue child support order.
 Modification: MS Order: As long as one of the parties remains in that
state that issued the order, that state has continuing exclusive
jurisdiction.
 As long as one of the parties (payor, payee or child) remains in
the issuing state, NO OTHER STATE may modify the order,
even though the state has personal jurisdiction over the parties
and an order is registered in the state and enforced in the state.
 Example: Mom is in TX. MS order was for $800 a month. Dad
still lives in MS. Mom wants to file an action to modify support
up. It has been 7 years and he is making more money. She has
to go back to MS.
 Example: Dad has moved to TN. Mom is in TX. (If she wants to
increase support/decrease support she has to file in TN)
 –> Once all parties have moved from the issuing state, the
person seeking relief has to file suit in the other's state of
residence. Two Reasons:
o Prevent forum shopping
o To ensure personal jurisdiction
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

Messy Example: Mom decides to file for an increase in child
support in TN. In response, Dad petitions to get custody. Now,
there are counter petitions.
o Subject Matter Jurisdiction:
 Child Support Jurisdiction - where the dad is - is
in TN
 Custody Modification - where the kids are - is in
TX
o Now, have parallel actions with jurisdiction in two
different places. If you are going to waive one of them,
you have to waive PJ, can't waive SMJ. He can't waive
custody jurisdiction, so this should be tried in TX.
 Messy Example 2: Suppose child support jurisdiction is in TN.
Child support ends at 18 in TN. If dad has moved to TN and
mom is seeking increase in TN, can dad say support does not
go past 18. NO! The durational limits of the issuing state
control.
o However, the new state has the power to modify, their
child support guidelines will apply.
 Statute of Limitations: (for collecting child support) is in any
state that has ever had the power to modify the order.
o Example: If TN SOL is 3 years and MS is 7 years, it is the
LONGER of the two.
Interstate Jurisdiction Child Support Enforcement Actions
 A child support order can be enforced in any state where one
of the parties is located, just by registering it in the state.
o Example: Mom has MS child support order. Dad moves
to VA. Mom can take MS child support order and send it
to VA to be registered. The court registers it and she
immediately begins collecting from his employment
there.
o Common Mistake: Someone from another state trying to
enforce an order in MS, and they did not register it.
 What happens when the parties move out of state? e.g.,
Lafayette County Custody Order, Dad pays $1,000 per month.
Dad moves to Texas. –> The Uniform Interstate Family
Support Act covers this. (It’s enacted in almost every state.)
o As long as one party remains in issuing state, that state
has continuing exclusive jurisdiction to modify order.
o The other thing UIFSA does is set up a two-state
procedure in enforcing child support. It’s difficult for
the mother to collect in Texas. She can go to Lafayette
Co. Chancery Court and file a petition that will be
transferred to the proper court, but the Texas and MS
49
courts will communicate back and forth so she can
collect in Texas.
o What if they both move? When they both move out of
the issuing state, the issuing state loses jurisdiction to
modify (not to enforce). From this point on,
modification jurisdiction lies in the state where the
defendant lives. That means that, if one of them wants
to modify support, they have to go to the other one’s
state.
 Once an issuing state has ordered child support, the duration
of child support is always governing by that state’s laws.
 One other weird quirk: The SOL that applies – UIFSA and state
laws say of all the states involved find the one with the longest
SOL and that’s what applies.
o Alimony (See below)
 UIFSA also covers alimony.
 Alimony jurisdiction for modification always remains in the state that
issued the original award.
 Example: We have a MS alimony award. The payor, former
husband, moved to Vermont. Payee moved to CA. They hadn't
lived in MS for 15 years. He files termination proceeding in CA.
Ct held only MS could terminate that alimony.
 Alimony is confusing. It varies from state to state. Example: In some
states, like MS, a spouse for 25 years can get almost ¼ of the other's
income for rest of life. In TX can get max of two years of alimony.

PROPERTY DIVISION (p198)
o Summary of Types of Property Classification
 Equitable Distribution: MS is a title state that uses equitable
distribution. During the marriage spouses share title to all marital
property. Equitable distribution only kicks in when there is a divorce.
 By incorporating the marital partnership theory from
communal property states they created equitable distribution
that arises at divorce. Wife can get more than only alimony
now when she doesn't hold titles to the property. However
this DOES NOT mean there will necessarily be an equal split of
the property.
 Community Property: 8 states are community property states: in
these states any property acquired during the marriage is marital
property.
 Couple forms an economic unit/partnership; 50/50 split at
divorce
 Only earned money gets split/not inheritance or income before
marriage etc.
 At death half goes to spouse automatically
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 Spouse’s creditors can reach half of your money for their debts
o Equitable Distribution: 3 steps Court must go through – (1) classification of
assets, (2) valuation, (3) division
 Classification of Assets (marital or separate)
 5 Categories for Property:
o HER separate
o HIS separate
o Marital Property
o HIS separate/marital
o HER separate/marital
 Marital Property: any property acquired OR value created by
the efforts of one of the spouses during marriage
o Accumulation begins on the date of marriage; some
states include assets acquired during cohabitation, but
not MS.
o An order of separate maintenance or temporary
support ends marital property accumulation; if no
order, accumulation continues until divorce.
 Separate Property
o Gifts and Inheritances: belong to the receiving spouse
o Property acquired prior to marriage or after cut off date
o Property excluded by a prenuptial agreement
o Income and appreciation from separate property:
 The Active/Passive Test: If the increase resulted
from a spouse's efforts, the appreciation is
"active" or marital.
 Appreciation resulting from other causes
-- "passive" appreciation -- remains
separate. (e.g., general increases in
property values in Oxford because of
increased demand.)
 If one of the parties’ active efforts caused
the appreciation, it’s marital property.
 De minimus effort is not considered to
make it active appreciation. On the other
hand, if you have active involvement but
there were probably passive forces as
well, the court doesn’t try to separate it
out.
 Conversion of Separate Property to Marital
o Gifts:
 Majority Rule: "implied gift" rule recognizes
conversion of separate property to marital based
on an owner's intent.
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Minority Rule (MS): Family Use Rule: If the gift is
kept in the home and used by the family then it is
converted to marital property.
 Pad Lock Exception: If a spouse places
separate property in place where family
used it, it is converted to marital
property. The only way to avoid this
result is to lock it away in a room/store it
that only owner has access to it.
 Family use doctrine often applies to the
marital home.
o Joint Titling: In most states, an asset becomes marital if
the owner titles it in the name of both spouses. But, not
in MS - this rule was abandoned with the adoption of
equitable distribution.
o Co-mingling: In MS, if separate and marital funds are comingled, the separate funds turn into marital funds.
 In example from class, everything in both
accounts is marital because spouse has put both
separate and marital funds into the same
account.
 This co-mingling rule is applied to bank accounts
and ANY asset in which put marital funds.
(Example: Husband owns home 2 years before
marriage, and then wife moves in. This has
caused commingling.)
 Note: This is the majority rule in MS, but in the
last five years, the MSSC has started to edge
away from this rule.
 Oliver v. Oliver - Wife had a bank account with
marital funds in it, and then placed inheritance in
it. She immediately withdrew inheritance for CD.
The court held the property was separate
because she never intended to "co-mingle" the
deposit. However, the court DID NOT say was
overruling commingling rule.
 In most states, this is the Clearing House Rule - if
you place separate property into marital account
and then immediately withdraw to purchase a
separate asset, it is still separate property. (MS
recognized in Oliver v. Oliver.)
 Brock v. Brock - did not overrule co-mingling.
But, did say that whether commingling turns
separate property into marital property depends
on whether can trace it.

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

Specific Types of Property
o Personal injury proceeds: broken down into
components (Analytical approach: - look to see what the
award stands for):
 Pain and suffering - separate property
 Lost wages or medical bills - marital property
 Lost wages after the marriage or future medical
expenses - separate property
 Loss of consortium - separate property of the
spouse
o Disability Benefits: earned during marriage - marital.
o Professional Degrees and Goodwill:
 Only two states (not MS) characterize a
professional degree as marital property (if
acquired during the marriage).
 Facilities, equipment, fixtures, furniture, [and]
accounts receivable of a professional practice are
assets subject to equitable distribution
 In MS, unlike in most states, good will IS NOT
included in the valuation of a professional
practice. MS has extended this rule to other
service businesses.
o Attorney's Contingent Fees: e.g., wife’s been working on
the cases, but they're not completed yet. Typically,
courts reserve jurisdiction. The court can either wait
until the case comes in or go ahead and assign a
percentage. Other examples: books written or movies
made during the marriage. Anything where there is
work done during the marriage and there is contingent
income that may come in the future. e.g., Nevada Barr
Jones case.
o Loan Proceeds: e.g., Husband gets $100,000 loan to
expand a business that he is not actively involved in.
Two things to look at: (1) who was liable on the loan? If
the other spouse was a cosigner on the loan, property is
marital. (2) What was put up as collateral for the loan?
If marital property was collateral, then asset is marital
property.
o Gambling proceeds - apply the exchange rule (property
acquired by a spouse retains the classification of the
property for which it was exchanged.) If you used
marital funds to buy ticket, then the lottery winnings
are marital property. If you used separate property to
buy, then the winnings are separate property. You have
to be able to trace this to show it is separate property.
Valuation of Business
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

Measure of Value: market approach Fair Market Value (other
methods: income approach (look at stream of income), asset
approach (including good will)
 Date of Valuation: as close to the trial date as possible. In some
cases valuation should be at the time of temp support or a
separate maintenance order.
 Market based approach
 Income based approach
 Asset based approach
Division of Marital Property (look to contribution, need and
effort)(p.260)
 Note: Equitable does not mean Equal: Court can award more
assets to a spouse in recognition of greater contribution, or to
address greater need.
 Note: Division of Each Asset not required: if a primary asset is
awarded to one party a cash award can offset it.
 Division Factors: Ferguson v. Ferguson. To reach a fair
division, courts are to consider:
o THREE PRIMARY FACTORS
 Contribution: substantial contribution to
property accumulation, including indirect
economic contribution, contribution to family
stability, and contribution to the education or
training of the wage-earning spouse;
 Need: the needs of each spouse;
 Fault: (included in) other factors which should
be considered in equity
o OTHER FACTORS
 Spousal use or disposition of assets and
distribution by agreement;
 The market and emotional value of assets;
 The value of each spouse's separate estate;
 Tax consequences and legal consequences to
third parties;
 The extent to which property division can
eliminate the need for alimony.
 DISCUSSION OF FACTORS
o Contribution: how the parties contributed to the
accumulation of these assets. Most obvious: direct
financial contribution.
 e.g., Husband made $80,000, wife made $25,000
for half of the marriage, the other half she was a
homemaker.
 Homemaker’s Presumption: There is a
presumption that a homemaker's contributions
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


to accumulation of assets equal those of a wage
earner. (You can disprove that.)
 Indirect contributions can be emotional:
contribution to the harmony of the family, etc.
 Note: Men who make more are less likely to get
a higher portion of the assets than women who
make more.
o Need: you look at the income of the parties, the
expenses of the parties, and their separate assets, you
can look at individual debts also. e.g., If she’s not
employed and he’s making $80K, the chancellor may
shift from 50/50 and give her 60%.
o Fault: two aspects marital fault and economic fault
(dissipation of assets).
 Marital fault: Since ID divorce, the states are split
about whether fault can be a factor. Half say you
can’t look at it in ID divorce. In the other half
(including MS), you can still base it on fault.
 Economic fault (dissipation of assets): more
important. A party’s spending pattern to which
the other party acquiesced is not what this is.
This would be like a gambling problem, drug use,
and girlfriend/boyfriend. Most dissipation of
assets occurs after the parties separate.
 Example: Say the savings account was $50K, but
the wife came in and took $20,000. If there are
dissipated assets, you put them back into the
marital pile, and when you assign it, you assign it
to the person who took it.
Those are the basic factors and a chancellor has great
discretion on how to divide these as long as he or she makes
findings under each one of these factors.
Emotional Value
o Furniture – becomes very sentimental/personal. Be
aware that splitting up the furniture really can derail
things.
Tax consequences: Like child support, property division is
normally a non-taxable event. Say the savings account is in the
husband’s name. If the wife gets it in the divorce, that’s a
transfer to her, but it’s not taxable. There is one area that you
need to watch carefully. You need to look at the tax basis for
assets that are likely to be sold.
o Contingency Fees: assignment of income doctrine says
taxes are assigned to the person who earns the income.
Husband gets $500,000 and pays $100,000. She still
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
gets her $250,000, and he has to pay all the taxes. If you
are doing this, make sure you say net, after taxes.
 Effect of division on third parties, e.g., business owned with
others and in the agreement there is a no transfer clause. You
can’t give that to the other spouse.
 Extent to which property division can eliminate the need for
alimony: Alimony should be determined after property
division is complete.
Mechanics of Distribution
 Equal division doesn’t mean that you divide every asset
equally. It means that you look at the total value of the marital
assets ($480,000), and you divide it equally.
 In the example we did in class:
 Wife gets home
$100,000
 He gets pension
$150,000 (MS says you can’t divide this,
i.e., transfer a portion of it to the wife)
 He gets business
$150,000
 She gets IRA
$30,000
 She gets savings
$30,000 (plus $20,000 she took out)
 His total: $300,000
 Her total: $180,000




Equalizing property division payment: court will order him to
pay her $60,000 in lump sum alimony BUT IT IS NOT
ALIMONY. The court can order that this be paid in
installments. You can insure it through life insurance or lien.
Once property division is ordered, it is not modifiable. You can
come back and clarify it. (When you draft these, try to think
ahead about the things that might come up.)
DEBT:
 How do you assign debt? There is separate debt and marital
debt. A premarital debt is a separate debt. A debt that was not
known to the other spouse would be separate, but most debts
that were incurred during the marriage are going to be marital
debt.
 When one spouse is ordered to pay a debt, that can be part of
property division, it can be a form of alimony, and sometimes
it’s even been child support. That will make a huge difference
if you want to try to modify.
ALIMONY
o General Considerations
 Jurisdiction: Courts have jurisdiction to award alimony at divorce and
also retain continuing jurisdiction to modify the award based on a
material change in circumstances. A court must have personal
56
jurisdiction over the defendant in order to address alimony and
support.
 Relationship to equitable distribution: If an award of marital property
is sufficient to meet the parties’ needs, no alimony should be awarded.
When a court’s division of marital property is reversed, an
accompanying award or denial of alimony must also be reversed.
o Types of Alimony
Type
Ongoing or fixed When terminates
When vests
Modifiable?
term
Permanent
ongoing payment when either party dies vested when due modifiable
Alimony
with no end
or if the recipient
remarries
Lump Sum
fixed (can be paid does NOT terminate (if vested immediately NOT modifiable
Alimony
in installments) husband dies his
estate owes it; if she
remarries, he still
owes it)
Rehabilitative
Fixed term
terminates at the
vested when due modifiable
Alimony
payment
death of either party
(but does NOT
terminate at
remarriage unless the
court orders it to
terminate)
Reimbursement fixed term
does NOT terminate vested immediately NOT modifiable
Alimony

Permanent Alimony
 Who gets it: Permanent alimony may be awarded to either
spouse, including one who was at fault in the divorce.
 FACTORS: The factors governing permanent alimony came from
the MSSC case Armstrong v. Armstrong (1993): ARMSTRONG
FACTORS IMPORTANT! 2 groups
 These factors are DEFINITELY used/govern both permanent
and rehabilitative alimony and in many cases are used to
determine lump sum alimony too
 There are 12 factors all together. However, they are broken up
into two groups. The first group looks at whether there is
financial disparity b/t the parties. If so continue on to the
second group. If not then no alimony will be awarded and no
need to consider second group.
57
o First group: Is there a financial disparity between the
parties after property division? (If no, then no
alimony.)
o The parties’ current income and expenses. You want to
look at the party’s net income (including any regular
source of income) after mandatory expenses. Put back
in voluntary deductions. Compare that figure. If paying
child support, take it off net income. Note: A court will
impute income to a party who is working below earning
capacity or who has concealed income.
o The parties’ health and earning capacity. You can
impute earning capacity to a party who is not working
and capable of working or who is working below their
capacity. Trickier side: What do you do about a
homemaker?
o Reasonable expenses (the needs of each party).
Reasonable expenses are determined in light of the
standard of living of the marriage.
 Regular expenses
 Debts (obligations)
 Cost of children in the home (obligation to pay
daycare)
 Free use of home and car
o Assets of each party. Examining the factors above
reveals whether the parties' incomes are sufficient to
meet their reasonable expenses. If not, the court must
consider whether a party at a deficit has assets that may
be used to meet the expenses and whether a higherincome party has assets that may be used to satisfy the
award.
o If there is financial disparity, (2) should alimony be
awarded?
o **The length of the marriage. (Most critical factor)
 Under ten years, almost no one gets permanent
alimony. (Never more than 25% of discrepancy)
 Over 20 years, if there was a discrepancy, almost
all the women got permanent alimony. (50%%100)
 10-19 years. Hard to predict. (25% to 50%)
o **Age and health. A spouse's health is only important as
it relates to ability to earn. This factor only tells whether
spouse can continue to work. Over retirement age, age
matters, but before that most are told to get a job.
o **Marital fault or misconduct. Fault works sometimes
to deny/reduce alimony when the payee is at fault but
58

really does not particularly change with the payor is at
fault. (It is not used to punish the payor.)
o Dissipation of assets by either party. Women with low
income, who steal money from husband, do NOT get
alimony. (We didn’t talk about)
o The parties’ standard of living during the marriage and
at the time support is determined (we didn’t talk about)
o Tax consequences of the spousal support order (we
didn’t talk about)
o Any other factor deemed to be “just and equitable”
o NOT IN THIS LIST BUT PART OF THE 12 FACTORS: The
presence of or absence of minor children in the home.
Only bolded ones are used by court to determine
amount/reducing disparity
Lump Sum Alimony: (fixed, vested immediately, NOT modifiable, does
NOT terminate (if husband dies his estate owes it; if she remarries, he
still owes it)); USED IN FOUR DIFFERENT WAYS:
 Replacement for permanent or rehabilitative support. (Really
like a present value award, usually from a wealthy man). This
had characteristics that were opposite of permanent alimony.
(fixed, vested immediately, NOT modifiable, does NOT
terminate (if husband dies his estate owes it; if she remarries,
he still owes it)
 1973-1994: precursor of equitable distribution: courts began
to award lump sum payments to compensate homemakers for
their contribution to asset accumulation.
o Cheatham Factors (applicable when lump sum alimony
acts as an equitable award based primarily on
homemaker contribution):
 Substantial contribution to accumulation of the
payor’s assets by quitting work to become a
homemaker or assisting in business
 Long marriage
 Recipient spouse has no separate income or the
separate estate is meager by comparison
 Recipient would lack financial security without
the lump sum award.
 Property division payment. Before adopting equitable
distribution, the courts were using awards of lump sum
alimony to achieve that purpose. Under the new system, it
kept using the term “lump sum alimony” sometimes to
describe offsetting payments in property division. To alleviate
confusion, the supreme court has suggested that parties use
the label “property division” rather than “lump sum alimony”
to designate payments used to divide marital assets.
59



Alimony based on substantial contribution. Although today
long term contributions to asset accumulation are
compensated primarily through property division, a
homemaker’s contribution may still be recognized through an
award of true alimony in a lump sum.
o Factors: Some opinions analyzing lump sum awards still
refer to the Cheatham factors; others cite the Armstrong
factors used for permanent and rehabilitative alimony.
 When lump sum alimony acts as an equitable
award based primarily on homemaker
contribution, the Cheatham factors certainly
remain applicable.
 However, when a lump sum award replaces or
supplements permanent or rehabilitative
alimony based primarily on disparity, the
Armstrong factors may be more relevant.
 Armstrong Factors (applicable for lump sum alimony award
when it replaces or supplements permanent or rehabilitative
alimony based primarily on disparity)
Rehabilitative Alimony (Fixed term payment (you have to label this as
rehabilitative, or it will look like lump sum), vested when due,
modifiable, terminates at the death of either party (but does NOT
terminate at remarriage unless the court orders it to terminate)
 Purpose: to provide transitional support to a spouse who may
reenter the workforce; it is not intended as an equalizer
between the parties but instead is designed to provide
temporary support for a spouse whose income may increase or
who may become employed after a period of training or job
search.
o Note: Courts also award this as a transitional alimony
for somebody who is already working at full capacity
but who is not entitled to permanent alimony because
she’s young and it’s a short marriage.
 Factors: The MSSC says to use the Armstrong factors (see
above), but Bell says they don’t really provide much guidance.
Reimbursement Alimony (fixed, vested immediately, not modifiable,
does NOT terminate)
 Purpose: Tailored to the situation in which someone puts a
spouse through professional school and the marriage ends
before that spouse can benefit from the degree (i.e., her
contribution cannot be recognized through property division).
 Calculation: calculate half of her earnings, value of her
homemaking, payments for books etc., and then a return on her
investment (an investment factor). This has all the
characteristics of lump sum alimony.
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Hybrid Alimony: Historically, alimony had to have the exact
characteristics of the particular type (above). If lawyer created a
hybrid, for instance drafted a permanent alimony award but said was
not modifiable, the default rule was to classify it as a permanent
alimony award. (Example: Couple agrees to lump sum, nonmodifiable, terminate at death. A characteristic of lump sum award is
that it does not terminate at death, thus, this hybrid is knocked out
and becomes permanent alimony.)
 Now, there are a couple of cases that allow parties to create
hybrids. However, lawyers are reminded of the historic
distinctions of alimony and are encouraged not to ignore them.
 Hybrids began to be allowed due to the IRS definition of tax
deductible alimony - the payment has to terminate at the
payee's death.
 As a result of the IRS definition, attorney's drafted lump sum
agreements such as: 100,000 payable over 10 years, nonmodifiable, survives husband's death, survives remarriage, but
terminates at wife's death.
 Note: With the introduction of hybrids, when drafting alimony
agreements, should spell out the characteristics of type of
alimony. It is no longer assumed that characteristics are the
traditional ones associated with permanent, lump sum, etc.
 Note: Cannot create permanent alimony that is not modifiable.
o Modification (Note: rehabilitative and permanent alimony are modifiable.
Lump sum and reimbursement are not.)
 Test for Upward Modification: Unforeseeable material change in
circumstances.
 Test for Downward Modification: unforeseeable involuntary material
change in circumstances, usually loss of income (rules pretty much
the same as child support).
 NOT reasons to modify downward: remarriage, taking on too
much debt, bankruptcy
 Note: If payee starts working again years after the decree, it
could be a reason to modify downward.
o Termination:
 Cohabitation: Alimony can be terminated by the court based on
cohabitation. MS law says cohabitation is spending a couple of nights
together combined with a sexual relationship.
 Two different tests:
 Scharwath test: There is a presumption that cohabitation is
accompanied by financial support. A cohabiting payee must
rebut the presumption by proving lack of mutual support.
 De facto marriage rule: Alimony may also be terminated even
in the absence of cohabitation if a court finds that a payee is
avoiding marriage to continue alimony.

61
o Example: the recipient of alimony had a long-term
boyfriend. They were not living together. The court
found without any evidence to support it that she was
avoiding marriage to keep from cutting off alimony and
the court took away her alimony.
o Conversion from Rehabilitative to Permanent (or vice versa)
 In MS, rehabilitative can be converted to permanent if there is a
material change in circumstances in the payee's situation. (Bell does
not think this fits.)
 Example: Wife was married to husband for 4 years and gets ill
and income drops to 12000 a year, that is a material change in
circumstances. The court would never have awarded
permanent alimony here anyway. But, if you use material
change test - transitional alimony can be converted to
permanent.
 Oster v. Oster: Involves the question of whether rehabilitative
alimony can be converted to permanent. Woman had two
years rehabilitative alimony, and she filed a petition to convert
to permanent alimony. The court held that could be done if
you could show a material change in circumstances on behalf
of the payee.
 Court has also changed from permanent to rehabilitative alimony.
 Parties can include in their agreement an escalation clause.

MARITAL AGREEMENTS (Two Types – Premarital and Separation)
o Premarital Agreements (p.480)
 Note: Until we got to the era of no fault divorce, you couldn’t enter
into a pre-nup for divorce. MS doesn’t have very good case law on
this.
 Usually when one spouse has more assets/income than the other
(protect at death/divorce)
 Often provoked by family or children when go to remarry
 **May not represent both parties in a pre-nup. Make sure the parties
sign every page. Make sure the parties initial where there are specific
provisions.
 4 Requirements: (the book says 4 are: consideration, voluntary,
full/faith disclosure, and fair in execution)
 Must be IN WRITING
 Must be VOLUNTARY (not coerced or signed under duress)
o Most of the theories that make a contract void are
applicable here; except for consideration. There does
not have to be return financial consideration – the
consideration is getting to marry the other person.
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If no reasonable time to review/get attorney/on
wedding day etc unclear how courts would rule. Some
say as long as you have read it, it's voluntary.
o Just because spouse won't marry you unless you sign it
isn't coercion.
o Example: 4 days before the wedding, he casually
mentioned that his kids were pushing him to get a prenup. The day before, they meet to look at the pre-nup,
sign it, and get married the next day. This sounds like
coercion (no real opportunity to read and understand),
but in MS voluntariness is a pretty low bar.
o BUT if the woman is pregnant and it’s the day before,
that has been found to be coercion.
o Practice Tip: Mark that they were advised to seek
counsel- sign off separately on that.
Must have FULL DISCLOSURE OF ASSETS (FULL & FAIR DISCLOSURE)
o Attach full financial statement of assets, debts,
liabilities, expenses etc.
o Shouldn't be understated or overstated.
o Acknowledgment that the parties have reviewed each
other’s financials
 If your client did not disclose fully but can prove
other person knew of assets, then the agreement
can still be enforceable.
Has to be FAIR under one of three different standards
o 3 Tests:
 Minority View: Some states have said that the
agreement must be fair at the time it is executed
and at the time it is enforced (most favorable to
the lower income spouse).
 Example: Parties were married in 1985;
at the time, both thought would have
careers. After had children, wife agreed
would stay home and take care of the
children. She assisted husband in
business. 20 years later, husband leaves
her. In 1985, it may have been fair that
she waived right to alimony, property, etc.
But, not at time of enforcement.
 Majority View: Procedurally and substantively
fair at the time the document is executed (i.e.
when signed). This examines at the time the
document was executed that it was fair to waive
all alimony, regardless of when the parties
divorced.
o
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Mississippi’s View (least protective): It must be
fair in the execution (not at the time of
execution). This means procedurally fair. It does
not have to be substantively fair. (Did the person
have the opportunity to read the agreement,
were they coerced, was it explained to them?
The court has said we don’t care if it’s
fundamentally unfair; if there was a fair process
of signing it, they will recognize it.)
 Of all the cases that have been litigated to
the COA, none have been found unfair.
 The COA or MSSC has not been faced with
the type of really unfair situation.
 What if the parties move to CA, where
there is a more protective provision?
Ordinarily, if there is choice of law
provision, MS law will govern. However,
unless strong presumption favoring
current state law.
 Not required in agreement:
 Consideration (other than exchanged promise to marry)
 Both parties to have an attorney
 Scope of agreement:
 Can include how children will be raised (religion etc.)
 Cannot enter into amount of child support or who will have
custody, etc.; mostly just property division and alimony (in MS
can completely waive alimony)
 Can have a provision that enhances the award of alimony to the
non-money holding spouse if the money holding spouse is at
fault.
 Post-nuptial Agreements:
 MUST have financial consideration
 Courts police fairness and unconscionability much more
carefully than in pre-nuptial agreements.
o Separation Agreements: agreements between spouses in settlement of
divorce, custody, or support action. Upon incorporation into a court decree, it
becomes part of the court's judgment and is as enforceable as any other
decree. (i.e., = both a contract and a judgment)
 When must the agreement be in writing?
 In an irreconcilable differences divorce, agreement must be in
writing. (If agreement is dictated into the record, it is void.)
 In a fault based divorce, the agreement may be dictated into
the court's record.
 When is Separation Agreement Binding on the parties? At mediation
and everyone signs separation agreement. That night both husband

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

and wife get independent advice that they are getting screwed. The
next day one tries to back out.
 Fault Based Divorce - Parties cannot back out unless the
agreement provides that it was not binding until court
approval.
 Irreconcilable Differences Divorce - There are debates about
whether or not ID divorce agreement is binding on parties
before chancellor approves it. The statute says: if they are
withdrawing their consent to the divorce, then it’s not binding.
But if they are just backing out of the property settlement, it’s
not clear. The way to protect yourself is to put in provision
that it is binding regardless of whether parties get divorced.
When is Separation Agreement Binding on the Court?
 The property division binds the judge unless it’s grossly
unconscionable.
 But the judge is not bound by custody, child support, alimony
provisions. That’s the legal rule, but judges never do that.
When can the Court set aside Separation Agreement?
 MRCP 60(a): Clerical mistakes in judgments, orders, or other
parts of the record and errors therein arising from oversight or
omission – can be corrected at any time
 MRCP 60(b): mistake, fraud, misrepresentation, overreaching,
– must be within six months of date of judgment
 MRCP 60(b): after six months of judgment, ONLY for fraud on
the court or because judgment is void.
 EXAMPLES:
 Husband agrees to give 50% of his gross income. Cannot set
aside. If what is unconscionable is what you bought the
divorce with, it can’t be set aside.
 She agrees to 0, no custody. She was within the 6-month
period. Set aside for overreaching.
 National guard pension was not included. If both parties leave
out an asset, it belongs to the person in whose name it was
titled. If she knew he was in the National Guard but didn’t
know about the pension, that’s not going to be set aside.
 Husband omitted $2 million in lottery money. More than four
years after. If you look at rule 60(b), after six months, you can
only set aside something that is a fraud on the court. This is
fraud on a party and must be within 6 months.
o Kalman case – the court focused on Rule 805, which
requires the parties to file a financial statement. The
parties didn’t submit one in this case, and before this
case that was a pretty common practice. The MS
Supreme Court said that failure to submit the 805 was a
fraud on the court and it was contempt of court. Two
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cases since then that discussed this that seemed to back
off and say not every failure to submit an 805 is
contempt of court.
o Trim: H had a business and the couple had a house.
There was no evaluation of the business but H said the
business was worth about $100,000. W kept the house,
H kept the business. 1 year later, H is in litigation with
business partners with claims that the business was
worth between $1-2million. W sought lawyer 1 year
later. COA said it was fraud on a party and must have
been brought up within 6 months. MSSC reversed and
said that if someone makes an intentional, substantial
misstatement on financial statement, it is fraud on the
court.
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Specifics
 Ask your client if they have a will. Divorce does not revoke a
will implicitly. MS rule says the will is revoked only if it was
the parties’ intent and it is a question of fact.
 Every now and then, parties will continue to jointly own an
asset after divorce. You have to find out the type of ownership
o Divorce does not sever a joint tenancy;
o Tenancy in entirety does not survive divorce, but at
divorce, it transfers to joint tenancy.
 Odd circumstance: If there is a possibility of any other claim (a
tort claim, e.g., domestic violence) against another, the
boilerplate language in the agreement will relinquish that tort
action.
 Look at your boilerplate language to make sure it doesn’t affect
alimony and child support agreement.
DOMESTIC VIOLENCE
o Domestic violence will usually come up in one of two instances:
 Divorce; and
 Restraining Order.
o The type of violence at issue is the controlling type of domestic abuse (in
contrast from random acts of anger).
 Extreme verbal and emotional abuse: makes the victim feel they are
absolutely worthless (battered women’s syndrome).
 Threats: batterer may have threatened suicide.
 Control and exclusion: batterer will cut off victim’s access to support
(friends and family), communication devices (exclusion and isolation),
and finances (no checking account, allowance each month).
o Note: The average number of times a victim will go back after alleging abuse
or filing for divorce is 6; when the victim dismisses the action and goes back
to the batterer, this serves as Condonation of the habitual and inhuman acts
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o
o
o
o
o
alleged in the divorce. If they want to file again, they will have to wait until
the abuse starts back up again.
Who is entitled to Protective Order?
 Current or former family or household members or those individuals
in a current dating relationship
 “Family or household member” means spouses, former
spouses, persons living as spouses, parents and children, or
other persons related by consanguinity or affinity*
 SB 2797: current or former spouses, persons living as spouses
(or former), others related by blood or marriage who live or
formerly resided together, persons having a child in common,
or persons with a current or former dating relationship
**Types of orders available to victims of domestic violence
 Ex parte order: If you want a restraining order in place before the
batterer finds out about it.
 You can only get ex parte order in justice or municipal court.
 It is good only for a maximum of 20 days; to get a permanent
order you have to go to county or chancery court.
 To get any order that deals with children, you have to go to
county or chancery court.
 Note: The orders used to be indefinite; now, if you get custody
through a restraining order, it only lasts 180 days (don’t have to pay
any fees). In order to get permanent custody, must go through
chancery court
 Mutual orders: judge will restrain both the parties; however, this
creates a presumption that both are violent. Also, if she is not abusive
and goes within the restricted area, she has violated and has a
criminal record. Now, judges can’t issue a mutual order unless there is
evidence that both parties have been primary aggressors.
§93-21-15: Relief available in Chancery, Circuit or County
 Direct defendant to refrain from abuse
 Grant possession to petitioner of residence or household
 When duty to support, grant possession of residence or require
suitable alternative housing
 Order defendant to pay monetary compensation for losses suffered as
direct result of abuse (medical expenses, loss of earning, out of pocket
expenses, reasonable attorney fees, counseling)
 Prohibit transfer, encumbrance or other disposal of jointly owned
property
 Award temporary custody of and/or establish temporary visitation
 Order defendant to pay temporary support
Findings of Facts: ALL protective orders, whether temporary or long term,
must contain specific findings of fact supporting the allegations of abuse and
the behavior to be prohibited.
DV and CHILD CUSTODY
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Congress by House Concurrent Resolution 172 declared that evidence
of one parent’s physical abuse of the other should create a statutory
presumption that it is detrimental to the child to be placed in the
custody of spouse abusing parent.
 There have been studies to show that joint custody should not be
ordered in cases of domestic violence. (Elizabeth M. Schneider,
Battered Women and Feminist Lawmaking 2000.); Naomi R. Cahn,
Civil Images of Battered Women: The Impact of Domestic Violence on
Child Custody Decisions, 44 Vanderbilt L. Rev. 1041 (1991); Mildred
Pagelow, Effects of Domestic Violence on Children and Their
Consequences for Custody and Visitation Agreements, 7 Mediation A.
(1990).
o New provision – as of last year, when a victim goes to get a DV protection
order, they can go to circuit, chancery, or county court and get a permanent
protective order that awards temporary custody, and there is no limit on the
temporary (no time limitation). There is no way to get it transferred to
chancery.
o The DV protective orders that issue custody, those are considered custody
under the UCCJEA.

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
ASSISTED REPRODUCTION TECHNOLOGY ISSUES
o The first “test tube” baby – a child conceived through in vitro fertilization -was born in 1983. Today, assisted reproductive technology is a billion-dollar
industry, involving sperm and egg donors, surrogate mothers, same-sex
couples and single parents using variations on ART. And – on the horizon –
the possibility exists of creating an embryo from the genetic material of one
person.
o ART differs from traditional conception in three important ways –
conception may occur outside of the womb; IVF results in a surplus of frozen
embryos; and conception may involve more than two participants.
o Little legal guidance is available to determine the rights and obligations
between the parties to these arrangements. Most cases are decided on the
basis of existing, and inadequate, doctrines of contract, property, or
constitutional law, or by reference to paternity or adoption statutes.
o THE TECHNOLOGY
 Artificial insemination
 In the process of artificial insemination, a woman (the
intended mother) is injected directly with her husband’s sperm
or with donor sperm.
 In vitro fertilization
 In this process, a woman takes hormones to stimulate egg
production. The eggs are removed and fertilized in a glass dish.
The fertilized egg, or “pre-embryo” is then implanted in the
woman’s uterus.
 Egg donation
 Conception may involve donation of an egg by harvesting eggs
from a woman who is not the intended mother. In many cases,
the donated egg is fertilized with the intended mother’s
husband’s sperm. The embryo may then be implanted into the
intended birth mother, allowing a woman to carry her
husband’s biological child.
 Or, egg donation may be combined with sperm donation to
create an embryo to be implanted in the intended mother or a
surrogate.
 Embryo donation
 The in vitro fertilization process usually results in the
production of excess pre-embryos that are cryogenically
preserved. A couple that has unused embryos may agree to
donate an embryo to another couple. The embryo is then
implanted in the intended mother, or in a surrogate mother.
 Surrogacy
 A surrogate mother carries and gives birth to a child for another. In
traditional surrogacy, the birth mother is artificially inseminated with
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the intended father’s sperm, so that she is both the birth and genetic
mother. In contrast, a gestational surrogate is implanted with an
embryo using an egg other than her own – either that of the intended
mother, or a donated egg.
o LEGAL PRINCIPLES
 Because most states do not have statutes addressing assisted
reproductive technology, courts are forced to resolve disputes
between divorcing spouses, surrogates and intended parents, and
intended parents and donors, on an ad hoc basis, using existing bodies
of law such as contract, property, and constitutional law.
 Contract law
 Parties to ART may enter detailed contracts setting out the
rights between intended parents, donors, and surrogates. If a
dispute develops, courts may apply general contract law.
 Under standard contract law, a person who voluntarily enters
an agreement is generally bound to the terms of the contract.
However, some contracts are considered unenforceable based
on public policy considerations, including certain contracts
related to family matters. For example, a couple cannot enter a
binding premarital agreement regarding child custody in the
event of divorce.
 Some courts have enforced ART agreements, while others have
held that agreements regarding conception and birth are
unenforceable as against public policy.
 Presumptions of paternity
 Under the common law, a man is presumed to be the father of a
child born to his wife during the marriage. In addition, a
woman is presumed to be the mother of a child born to her.
See In re C.K.G., 173 S.W. 3d 714 (Tenn. 2005). These
presumptions may produce unintended results when the birth
mother is a surrogate.
 Paternity establishment
 Most states have paternity statutes that provide for the
establishment of paternity through genetic testing.
Motherhood may also be proven through genetic testing.
Applied to ART, the paternity statutes would recognize a sperm
or egg donor as a child’s legal parent.
 Property law
 Parties have argued that property law should govern rights
between divorcing spouses with regard to frozen embryos.
Arguably, the pre-embryo could be viewed as marital property
to be assigned to one spouse, or as jointly owned property.
Most courts have declined to apply a strict property analysis.
 Best interest test
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

Arguments have been made that a pre-embryo is a person with
rights that should be determined under the familiar best
interest of the child standard.
Constitutional law
One of the fundamental rights protected by the United States
Constitution is the right to procreate. A corollary right, established in
decisions involving birth control, is the right not to procreate. These
rights are placed in direct conflict when a divorcing couple disagrees
over the disposition of frozen embryos. In traditional conception, a
woman’s right to decision-making involving her body has been the
guiding principle in constitutional law cases. When a couple creates
embryos through IVF, the woman’s rights are no more implicated than
a man’s, shifting the constitutional analysis to a balancing of the rights
to procreate and the right not to procreate.
o ART STATUTES
 A number of states have statutes that provide for parentage when a
married couple uses donor sperm to conceive through artificial
insemination. However, very few states address the consequences of
in vitro fertilization, egg donation, surrogacy, or artificial
insemination between non-traditional partners or single women.
 Artificial insemination
 The Uniform Parentage Act, (UPA) as drafted in 1973,
addressed parenthood of children conceived through artificial
insemination. Section 5 of the UPA provides that a husband
who consents to his wife’s artificial insemination, through a
physician-supervised procedure, is the legal father of the child.
It also provides that the sperm donor has no legal rights or
responsibilities with respect to the child. In most states, the
provision applies only to married women. Uniform Parentage
Act §5, 9B ULA 407 (1973). A number of states adopted
Section 5 of the UPA. Some varied it by omitting the
requirement for physician supervision. A few made it
applicable to artificial insemination by an unmarried woman.
 The provisions of the Illinois Act are typical: “If, under the
supervision of a licensed physician and with the consent of her
husband, a wife is inseminated artificially with semen donated
by a man not her husband, the husband shall be treated in law
as if he were the natural father of a child thereby conceived. . . .
The donor of semen provided to a licensed physician for use in
artificial insemination of a woman other than the donor's wife
shall be treated in law as if he were not the natural father of a
child thereby conceived.” 750 ILL. COMP. STAT. 40 § 3.
Mississippi has not adopted the Uniform Parentage Act.
o These acts do not address the rights between partners and donors
 when artificial insemination is not under doctor supervision
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 when unmarried or same-sex partners use the service
 when a single woman uses the service
 In vitro fertilization and surrogacy
 The Uniform Parentage Act was amended in 2002 to address in vitro fertilization,
egg and sperm donation, and surrogacy. A minority of states have adopted the 2002
amendments or enacted a statute addressing these issues. Mississippi has not
adopted the UPA, and no statute was found in Mississippi addressing assisted
reproduction.
 Section 7 of the amended UPA provides that a donor of a child conceived through ART
is not a parent of the child. It also provides that a man who “provides sperm for, or
consents to, assisted reproduction by a woman as provided in Section 704 with the
intent to be the parent of her child, is a parent of the resulting child.” Section 8 of the
amended Act recognizes surrogacy agreements validated by court order. The court
must find that, based on a home study, the intended parents are suitable; the
agreement was entered voluntarily; the surrogates’ health-care expenses are
provided for; and any consideration paid is reasonable. 9B U.L.A. 297.
CUSTODY AND SUPPORT ISSUES


Artificial insemination
 Rights between the intended parents and between parents and
donors depend upon (1) whether the state has a statute
governing AI; (2) whether the intended parents are a married
couple; and (3) whether the donor is a known or anonymous
donor.
 Husband’s rights and obligations. In states that have adopted
the UPA’s section 5, it is clear that a husband who consents to
his wife’s artificial insemination through donor sperm is the
child’s legal father.
In states without a statute, courts have imposed support obligations
on husbands who participated in the procedure. Courts have used
contract theories of consent, Estoppel, and implied consent, and
presumptions regarding children born during marriage to find that
the mother’s husband is the child’s legal father. The New Jersey court
held that a husband is presumed to consent to his wife’s conception
through artificial insemination, and bears the burden of proving lack
of consent or that consent was withdrawn. K.S. v. G.S., 440 A. 2d 64
(N.J. Super. 1981).
 Rights of anonymous donors. In states that have adopted the
UPA, married couples that use physician-assisted AI are
shielded from donor’s claims to custody or visitation.
 Rights of known donors. Using a known donor outside the
physician-assisted process may create problems with regard to
the rights and obligations of the donor. In Jhordan C. v. Mary K.,
179 Cal. App. 3d 386 (1986), the court held that a donor who
contributed sperm for artificial insemination could assert a
claim of paternity. The court rejected the mother’s argument
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that she did not intend to allow the donor to have rights with
regard to the child – she could have avoided the result by
having the donor provide the sperm to a physician for the
procedure. In some cases known sperm donors have been
granted parental rights where the donor has had some contact
with the child or it appears that contact was intended.
 Non-traditional couples. Even in states with statutes governing
artificial insemination, the provisions typically apply only to
married couples. If a cohabiting couple has a child through
artificial insemination, the mother’s partner may argue that he
has no obligation to support the child, even though he
participated in the process. In In re Parentage of M.J., 759 N.E.
2d 121 (Ill. App. 2001), the appellate court dismissed a
mother’s claim against her male (married) partner who paid
for and participated in her artificial insemination. The Supreme
Court reversed, holding that the UPA did not foreclose the use
of common law theories of estoppel to establish parenthood:
“if an unmarried man who biologically causes conception
through sexual relations without the premeditated intent of
birth is legally obligated to support a child, then the equivalent
resulting birth of a child caused by the deliberate conduct of
artificial insemination should receive the same treatment in
the eyes of the law. Regardless of the method of conception, a
child is born in need of support.” IN re Parentage of M.J., 787
N.E. 2d 144 (Ill. 2003).
o Similarly, a lesbian mother’s partner may lose custody and visitation rights
even though it was intended that she be the parent. For same-sex couples, the
issues are further complicated by the difference in state’s recognition of
same-sex unions and same-sex adoption.
o The California court has held that a lesbian partner who agreed to support
and raise her partner’s child, conceived through artificial insemination, was
the child’s legal parent. Elisa B. v. Superior Court, 117 P. 3d 660. Other states
have denied parental rights to same-sex partners who agreed to share
parental responsibilities. In Janis C. v. Christine T., 742 N.Y.S. 2d 381 (App.
Div. 2002), the New York court denied parental rights to a woman who had
agreed with her domestic partner that she would be the co-parent of her
partner’s child conceived through artificial insemination. “Any extension of
visitation rights to a same sex domestic partner who claims to be a “parent
by estoppel,” “de facto parent,” or “psychological parent” must come from the
New York State Legislature or the Court of Appeals.” Id.
 Egg and embryo donation
 A woman who carries a child to term using the egg of another
woman, or a donated embryo, is both the intended mother and
the “gestational” mother. The donor is the genetic, or biological
mother. In the event of a dispute over custody of the child,
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courts in most states must search for guidance; existing law
assumes that the birth mother is a child’s biological mother, so
few statutes address “maternity.”
 Intended mother’s rights. In In re C.K.G., 173 S.W. 3d 714
(Tenn. 2005), a woman’s former cohabitant and partner sought
custody of a child who was the product of a donated egg
fertilized by his sperm, carried to term by his partner. He
argued that his former partner was not the child’s biological
mother, and that he was therefore entitled to custody. The
court held that the woman was the child’s mother based on the
fact that she was the gestational mother and that the couple
demonstrated an intent that she would be the child’s mother.
Id.
Rights between surrogate and intended parents
 Custody may be disputed when a surrogate decides that she
wants to keep a child. In most cases, children have been
awarded to the intended parents rather than to the surrogate,
particularly if the surrogate is not the child’s genetic mother.
However, because of the stronger claim of a surrogate who is
both birth mother and biological mother, most couples that
want a child now enter into gestational surrogacy
arrangements rather than traditional surrogacy contracts.
Intended parents v. birth parents. Most courts have awarded custody
based on intent – the child was conceived with the intention that the
contracting couple would be the child’s parents.
 In The Matter of Baby M, 537 A. 2d 1227 (N.J. 1988), a dispute
between a traditional surrogate and intended parents, the
court held in favor of the intended parents based on the
contractual agreement between the couple and the surrogate.
 In Johnson v. Calvert, 851 P. 2d 776 (Cal. 1993), the California
Supreme Court was faced with the difficult decision of deciding
maternity between two “mothers” – the biological, intended
mother whose egg was used to create the embryo, and the
birth or gestational mother who gave birth to the child. The
court held for the genetic mother, based on intent of the
parties. See also Buzzaca v. Buzzaca, 72 Cal. Rptr. 280 (Ct. App.
1998) (denying divorcing father’s attempt to avoid child
support by having a surrogate declared his child’s legal
mother).
 Adoption proceedings. In the absence of a statute, intended
parents often adopt a child born to a surrogate. However,
adoption laws typically provide that consent to adoption is not
valid until three days after a child’s birth, preventing consent
in advance through a surrogacy contract. Some states have
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addressed the surrogacy issue by requiring court oversight and
approval of the arrangement in advance of birth.
o 3 Surrogacy prohibited. Some states outlaw surrogacy agreements,
demanding that all agreements in which a woman “agrees to become a
surrogate or to relinquish…rights and duties ads a parent of a child conceived
through assisted conception” be void. Because all agreements are void, the
surrogate “is the mother of a resulting child and the surrogate’s husband, if
party to the agreement, is the father of the child.” New Hampshire requires a
valid surrogacy agreement, but also establishes the right of the surrogate to
keep the child if she so declares within seventy-two hours of birth. To do so,
the surrogate must execute “a signed writing of her intention to keep the
child” and must deliver the writing to “the intended parents, the attending
physician, or the hospital medical director designee.” N.H. REV. STAT. ANN. §
168-B:25(IV) (2001).