Who gets the house? This is the million dollar question I get from many of my clients. Simply put, the answer to who gets the marital home in a Mississippi divorce is not always an easy answer. The marital home or residence is often the largest marital asset the parties possess, so it is not unreasonable for both spouses to want to retain or keep the marital home in a divorce. However, in some instances it is not reasonable, fair, or financially sound for one or either spouse to retain the marital home after divorce. And ultimately, it is up to the chancellor in the divorce proceeding to determine who gets what in a divorce, including who gets the house.In Mississippi, chancery courts and chancellors are given vast discretion in awarding certain marital property to either divorcing spouse. Johnson v. Johnson, 650 So. 2d 1281, 1288 (Miss. 1994) (citations omitted); Boykin v. Boykin, 445 So. 2d 538, 538-39 (Miss. 1984) (“there is no reason why a chancellor, under the broad discretion granted him, cannot in his decree award possession of the marital residence to either party.”). As it pertains to awarding the marital home to either spouse, chancellors generally consider the equitable distribution factors laid out in Ferguson and they also “consider all the awards to the payee[recipient] spouse and the concomitant burden placed upon the payor spouse.” Brooks v. Brooks, 652 So. 2d 1113, 1124 (Miss. 1995) (referring to Brendel v. Brendel, 566 So. 2d 1269 (Miss. 1990)); see generally Ferguson v. Ferguson, 639 So. 2d 921 (1994). Essentially, when awarding the marital home to either spouse, chancellors are charged with determining what is fair as well as assessing whether an award of the marital home to one spouse will place an unreasonable burden (usually an unreasonable financial burden) on the awarding spouse. Thus, if a spouse is going to fight to keep the marital home in a divorce, he or she should have a good reason to do so and should make sure that he or she can afford to keep the house.
To be clear, it is important to note that a chancellor’s award of the marital home to either spouse does not necessarily mean awarding “ownership” or title of the marital home. Oftentimes, the chancellor will award “possession, custody, and control”–not absolute ownership–of the marital home to one spouse. Chamblee v. Chamblee, 637 So. 2d 850, 863 (Miss. 1994). The Mississippi Supreme Court has explained that the issue of equitable distribution/property division “does not go to the actual ownership of the property . . . . Rather, it goes to the possession, custody and control of the property.” Id. In such a case where a chancellor awards possession of the marital home to one spouse, the other spouse would still own whatever his or her interest is in the marital home but he or she simply loses possession, custody/use, and control over the property; an award to a wife of “sole and exclusive possession, use and control of the home owned by the parties, not subject to partition … in no way destroys or diminishes (the husband’s) interest in the … property.” Gray v. Gray, 562 So. 2d 79, 83 (Miss.1990).
As a general rule in Mississippi, a chancellor “cannot divest a spouse of title to property [such as the marital home], thereby forcing that spouse to deed such property to the other spouse.” Draper v. Draper, 627 So. 2d 302, 305 (Miss. 1993) (citing Watts v. Watts, 466 So.2d 889, 890 (Miss. 1985)). However, this rule is not absolute and Mississippi courts have carved out certain exceptions to it; for instance, “[s]uch an award [of ownership/title rather than possession] can be made where it has been agreed to by the parties, or where the property has been acquired by the joint efforts of the parties.” Id. For instance, in Brooks, the chancellor “not only awarded [] [the wife] free use of the marital home, he awarded her total ownership of the $225,000.00 marital home and all the contents therein” and the Mississippi Supreme Court affirmed the chancellor’s award. Brooks, 652 So. 2d at 1123 (emphasis in the original).
Moreover, keep in mind that a chancellor’s wide discretion allows him or her to carefully tailor such an award of the marital home to conform to principles of fairness rooted in equitable distribution. For example, in Johnson, the chancellor awarded the wife “sole use of the marital home.” Johnson, 650 So. 2d at 1284. In its discretion, the Johnson chancellor tailored its award of the marital home to the wife by granting the husband “the option of discontinuing the mortgage payments upon the children’s majority, upon granting [] [the wife] all equity in the property.” Id. Thus, the husband was ordered to pay the monthly mortgage “together with all taxes and [homeowner’s] insurance” for the period of time until the children attained the age of majority, and at that time, the husband had the option to (1) continue making the house note payments or (2) forfeit/deed his interest in the marital home to the wife and terminate his future liability on the house note, effectively transferring the monthly house note payment obligation onto the wife. Id. The Johnson case is a great illustration of the discretion that chancery courts are endowed with and the ingenuity they are capable of in awarding the marital home to either spouse in a divorce.
The existence of children and/or one spouse’s emotional attachment to the marital home can be a factor in who gets the house in a divorce. To the existence of children as a factor in awarding the marital home, there is a common misconception that the spouse awarded custody in a divorce is always entitled to possession of the marital home as well. The Mississippi Supreme Court has explained that “as a general rule it is better to award possession of the marital residence to the party who is given custody of the children,” but such a general rule “is not, however, nor should it be, a rigid rule requiring adherence in every case. There are times when such a rule should be strongly emphasized, as just as patently there may be times when it is not so important.” Boykin, 445 So. 2d at 538-39; see also Hankins v. Hankins, 729 So. 2d 1283, 1287 (Miss. 1999). Giving great deference to the chancellor’s discretion in hearing all the evidence provided at trial, in Boykin, the Mississippi Supreme Court affirmed the chancellor’s award of possession of the marital home to the wife until she remarried or moved, even though the former husband was awarded custody of the parties’ child. Boykin, 445 So. 2d at 538-39. Thus, there is no guarantee that the spouse awarded custody of the children will also be awarded the marital home in a divorce case. And regarding a spouse’s emotional attachment to the marital home, in Sandlin, the Mississippi Court of Appeals found that the chancellor’s award of the marital home to the wife was proper despite the fact that the wife’s adulterous conduct caused the divorce. Sandlin v. Sandlin, 906 So. 2d 39 (Miss. Ct. App. 2004). The Sandlin court reasoned that awarding the marital home to the wife was fair because she (1) maintained the home during the marriage, and (2) was more emotionally attached to it because it was located near many of her family members’ residences and was once her grandparents’ property. Id.
Ultimately, many people going through a divorce place great emphasis on wanting to retain the marital home; and rightfully so. In fact, many of my clients make it priority or main objective in their divorce. But what many people fail to realize is that the chancellor in Mississippi has the ultimate discretion to determine who gets the house. In any event, if you seek to retain possession of the marital home in a divorce, you should have a good reason and the financial means to do so. More importantly, you should have an experienced Mississippi divorce attorney to advise you on the pros and cons of such an endeavor and take you step-by-step through the process. If you or someone you know needs professional assistance in a divorce or other family law matter, please call the Law Office of M. Devin Whitt for free consultation at (601) 607-5055.