Void marriage--Who gets the property in Mississippi?
Divided Mississippi Court of Appeals upholds equitable division of property in void marriage
In my last post, I spoke about the Chancery Court annulling a 37-year marriage because the wife failed to divorce her first husband when she married her second husband. But the question remained, why did the current husband, after 37 years of marriage, not agree to a divorce rather than fight for an annulment. The answer was money. If the husband agreed to a divorce, then the marital estate would be divided on an equitable basis. However, if there was no valid marriage in the first place, the husband could argue the wife was not entitled to an equitable division of the property. That is what he did.
Mississippi law, according to the husband, required a party to a void marriage to have entered into that marriage in good faith before the chancellor could award any form of equitable relief. His position was the wife did not enter into this marriage in good faith given she knew she was not divorced from her first husband at the time of the marriage. However, the Chancellor, nor the Court of Appeals, was swayed by this argument. It held that “good faith is not required under Mississippi law to support an equitable distribution of property acquired during a void marriage.” The Court said, “where parties live together without benefit of marriage and where, through their joint efforts, accumulate real property or personal property, or both, a party having no legal title nevertheless acquires rights to an equitable share enforceable at law…. Such a remedy is only available where ‘the couples had … either been married or contended to have married.’”
In Cotton, the evidence showed that the parties lived together as husband and wife, raised four children to adulthood, accumulated both real and personal property during their relationship, and the wife provided both pecuniary benefits (working outside the home and also contributing social security disability money to the household) and non-pecuniary benefits to the marriage as she was the primary caregiver of the children and took care of the family and home. However, the majority of the couple’s assets were titled in the husband’s name.
Despite this evidence, the husband said the wife did not enter into the marriage in good faith. Thus, she does not get equitable relief. A divided Court of Appeals disagreed.
It held that the Mississippi Supreme Court previously held that entering into the marriage in good faith was not a prerequisite for equitable distribution. Taylor v. Taylor, 317 So.2d 422 (Miss. 1975) Further, the Mississippi Supreme Court, in Pickens v. Pickens, affirmed an equitable distribution of the property obtained through their joint efforts. 490 So.2d 872 (Miss. 1986). In Pickens, the couple divorced and then resumed cohabitation shortly after their divorce, but never remarried. For the next twenty years, they held themselves out as husband and wife and had another child. Both realized they were not legally married, but the Court affirmed an equitable division of the jointly acquired property.
The husband’s other major argument was the Chancellor did apply the Ferguson factors in his distribution of the property. (Click here for the Ferguson factors used in division of equitable property.) But the Court noted Ferguson only applied to an equitable division of marital property “incident to a divorce.” Given there was no valid marriage; there was no divorce or marital property.
In an interesting dissent, three justices felt Mississippi law did require a party to enter into a void marriage in good faith before they were entitled to an equitable division of the property. Given the wife did not enter into the purported marriage in good faith (she knew she was not divorced when she married), the wife should only be entitled to “her share of the property owned by her and Eddies as joint tenants.”
It will be interesting to see if the Mississippi Supreme Court agrees to hear this case given the sharply divided Court of Appeals.
If you or a loved one is contemplating a divorce, you should consult with a qualified Mississippi Divorce Attorney. At the Kisselburgh Law Firm, we represent individuals in divorces throughout the state of Mississippi. You can contact us at 601-936-4040, 877-601-4040, or contact us online.
