Mississippi Family Lawyer Blog
Along with custody disputes, the division of marital property is often a source of contention for many couples seeking divorce. Depending on the duration of the marriage, the amount of property acquired will fluctuate. But generally, the longer the marriage, the more property or “stuff” is acquired. One of the most common questions I get when a client comes to me seeking a divorce is: “What’s going to happen with all my stuff?” The simple answer is whatever is classified as marital property will be “equitably” divided, while non-marital property is treated as separate property belonging to the titled spouse.
Since 1994, in divorce cases, Mississippi chancery courts have applied the doctrine of equitable distribution when dividing marital property. See Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994). Thus, when it comes to property division, Mississippi is not a “community-property” state whereby all of the divorcing spouses’ assets, regardless of whether they were acquired during the marriage or not, are divided equally (50/50) upon divorce. Carter v. Carter, 98 So. 3d 1109, 1113 (Miss. Ct. App. 2012). Instead, Mississippi is what is called an “equitable distribution” state.
In property division cases in Mississippi, the Chancellor (or chancery court judge) has the sole discretion and responsibility to determine what is “equitable.” Jones v. Jones, 904 So. 2d 1143, 1147 (Miss. Ct. App. 2004) (“The division of marital assets is within the broad inherent equity powers of the chancery court.”). To be clear, “equitable” does not necessarily mean “equal.” Chamblee v. Chamblee, 637 So. 2d 850, 863-64 (Miss.1994); Tate v. Tate, 875 So. 2d 257, 260 (Miss. Ct. App. 2004) (stating that Mississippi law requires equitable, not equal, distribution of the marital estate). And under the equitable distribution system, “the marriage is viewed as a partnership with both spouses contributing in the manner they have chosen.” Ferguson, 639 So. 2d at 927. So, Chancellors assume “for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic, or otherwise, are of equal value.” Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). Nevertheless, the keystone factor to be considered in determining equitable distribution of marital property is fairness, and division is based upon the equities of each spouse’s situation in the divorce. Herron v. Herron, 936 So. 2d 956 (Miss. Ct. App. 2006).
Like other aspects of divorce, the equitable division and distribution of the marital estate follows a given procedure. There are certain steps involved when making an equitable distribution of marital property. First, the Chancellor must classify what is marital property and what is non-marital property. Only marital property is subject to equitable distribution under Mississippi law. And “marital property” is any property or assets that were acquired or accumulated during the course of the marriage; while non-marital, or “separate,” property are those assets attributable to one of the spouse’s separate estates prior to the marriage or outside the marriage. A & L, Inc. v. Grantham, 747 So. 2d 832, 838 (Miss. 1999) (citing Hemsley, 639 So. 2d at 915). For example, gifts and inheritances received during the marriage are generally considered “separate property” in Mississippi and will not be subject to equitable division. But it is important to note that separate property can be converted to marital property where the titled spouse commingles his or her separate property with that of marital property; for example, a joint bank account. Though separate property will not be subject to equitable division, to maintain the underlying aspect of “fairness” in property division, the Chancellor will typically take into consideration each spouse’s separate property when determining what is equitable and when dividing the marital estate. Jackson v. Jackson, 922 So. 2d 53, 57 (Miss. Ct. App. 2006).
Then, after the property is classified, the Chancellor will value the marital property using expert testimony when necessary, and attempt to reach a fair division of the marital assets. During this stage, marital assets should be assessed their fair market value. Ferguson, 639 So. 2d at 929. Further, the Chancellor should consider the following factors when dividing the property:
1. Substantial contribution to property accumulation, including indirect economic contribution, contribution to family stability, and contribution to the education and training of the wage earning spouse;
2. Spousal use or disposition of assets;
3. The market and emotional/sentimental value of assets;
4. The value of each spouses separate property/estate;
5. Tax consequences and legal consequences/obligations to third parties;
6. The extent to which property division and eliminate the need for alimony;
7. The needs of each spouse; and
8. Any other equity factors the Chancellor deems necessary to consider.
Id. at 928. Also, “marital fault” may be a minor factor for consideration in property division. Nevertheless, where the Chancellor’s division of the marital assets adequately provides for the needs of both parties, “no more need be done.” Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994). But, when the division of property leaves a deficit for one party, then the Chancellor may decide to award the deficit spouse alimony based on the value of non-marital or separate property. Id. Thus, there may be four steps in dividing marital property in Mississippi: (1) classification of property, (2) valuation of marital property, (3) property division, and (4) determination of alimony when necessary.
No two property division cases are alike. Each divorce presents a unique set of facts and circumstances for Mississippi courts to consider in equitably distributing and dividing marital property. As a result, it is imperative to consult an experienced divorce and family law attorney. Should you or a friend need professional assistance in a divorce or any other family law matter, please contact the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.