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.’”

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.

After 37 years of marriage and rearing four children, the wife files for divorce. Husband responds with a claim of annulment, saying he and his wife were never legally married given she failed to divorce her first husband. Sound crazy. Well, it happened in a Desoto County Chancery Court and the Mississippi Court of Appeals handed down its decision in this case this week.

In Cotton v. Cotton, the Mississippi Court of Appeals affirmed a decision concerning property division in an annulled marriage. The Chancellor granted the annulment because the wife was never legally divorced from her first husband, who she married at 16, and therefore her marriage to her current spouse, at age 23, was void. Despite the fact that the couple had lived as husband and wife for 37 years and raised four children, their marriage legally never occurred. Harsh? Not really.

In Mississippi, the Mississippi Code Sec. 93-7-1 states that a person may obtain an annulment of the marriage, as opposed to divorce, if the following causes existed on the date of the marriage:

1. Incurable impotency;
2. Insanity;
3. Failure to meet licensure requirements, if there has been no cohabitation;
4. Incapacity to consent due to age or lack of understanding;
5. Physical incapacity to enter into the marriage state;
6. Consent obtained by force or fraud; or
7. The wife was pregnant by another on the date of the marriage without husband's knowledge.

For grounds 4 through 7, the suit for annulment must be brought within six months of the time the ground is or should have been discovered. For ground 2 above, the suit must be brought within six months from the date of the marriage.

However, bigamous or incestuous marriages are void marriages and may be annulled at any time. This is how after 37 years of marriage, Mr. Cotton was able to obtain an annulment given Ms. Cotton had not divorced her previous husband at the time she married Mr. Cotton.

Why, after 37 years of marriage, would the husband ask for an annulment as opposed to agreeing to a divorce? Well, the answer appears to be money. The husband argued that given there never was a marriage, the couple's property should not be equitably divided as is required in the case of married couple's divorcing. The Court did not rule on the issue of the annulment as the wife failed to raise the issue in cross-appeal. The husband only appealed the court's division of the property. In my next post, I will discuss the court's ruling concerning the division of the property in a void marriage.

Mississippi attorney Robert Kisselburgh represents clients in divorces throughout the state of Mississippi. If you have questions or would like to discuss your case, contact us at 877-601-4040, 601-936-4040, or contact us online.