Mississippi Criminal and Family Law BlogDivision of marital property is often a source of contention for many couples seeking divorce. Depending on how long the marriage lasted, the amount of property belonging to the couple may be small or large. But generally, the longer the marriage, the more property or “stuff” the couple has collected together. Mississippi courts divide property based on “equitable distribution,” which just means that property is divided in a way that is fair to both parties.
What is Equitable Distribution?
Equitable distribution is a method of property division that focuses on fairness. This means that assets are not necessarily divided 50/50, but are divided based on what would be fair to each spouse. It is the judge’s role to decide what would be a fair split of the property based on each spouse’s situation. Equitable does not mean equal, it just means a fair division. There are
three steps the judge must follow when dividing property based on equitable distribution. First, the judge must decide what is marital property and what is non-marital property.
Marital property is any property that was acquired or accumulated by the couple during the marriage, while non-marital property (sometimes called “separate property”) is any property that one spouse had or acquired prior to the beginning of the marriage. A gift or inheritance received by one spouse during the marriage will also be considered separate property. Only marital property will be divided by the judge. However, separate property can be converted to marital property and divided in a divorce if the judge finds that the separate property was combined or comingled with other marital property and used by both spouses. For example, if one spouse has a bank account prior to the marriage, but when they get married the couple uses the bank account as a joint bank account for family use, that account would be converted from separate property to marital property. Second, after the property is separated into marital property and separate property, the judge will place a value on the marital property. All assets are valued using their fair market value though emotional value is sometimes considered in distributing the marital property. Determining fair market value may be as simple as looking at bank statements or other information. However, sometimes real estate appraisers, accountants or other professionals who specialize in valuation may be required to place a proper value on certain assets. Third, the judge will divide the marital property using the eight property division factors listed below. If needed, alimony is awarded after all marital property is divided.
Mississippi’s Ferguson Factors:
In the 1994 case of Ferguson v. Ferguson, the Mississippi Supreme Court laid out eight factors that judges should consider when they are dividing property in a divorce case:
1. Substantial contribution to property accumulation (this can include 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 (how is each spouse going to use the assets that are awarded to them?)
3. The market and emotional/sentimental value of assets (certain assets, like homes, pets, and cars may have more sentimental value for one party)
4. The value of each spouse’s non-marital property
5. Tax consequences and legal obligations to third parties (are there certain debts that need to be paid?)
6. The extent to which property division can eliminate the need for alimony
7. The needs of each spouse (financial needs, which spouse needs the house more, etc.)
8. Any other equity factors the judge deems necessary to consider. These factors cover all of the things that the judge needs to take into consideration when deciding which spouse gets which assets or how the assets should be split.
Finding an Attorney
If you have been searching the Mississippi area for a qualified, experienced divorce attorney, look no further than Vic Carmody Jr., P.A. Our firm can handle your case with a balance of compassion and confidence to guide you through one of the most difficult times a person can go through. Contact us today for a free consultation to discuss your case and learn about your options.
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