Laws governing division of marital property in divorce vary from state to state. Mississippi law requires that the division be equitable (fair), but not necessarily equal. Some couples are able to agree on how to divide everything on their own, while others seek the help of attorneys or a mediator to negotiate a settlement.
Couples who don’t manage to resolve property issues outside of court will end up going to court to ask for a decision from an arbitrator or a judge. A Mississippi judge will consider all relevant factors in deciding what kind of property division is fair, including the following:
- each spouse’s contributions to accumulation of marital property
- either spouse’s waste or disposal of marital property
- both the market value and the emotional value of the property to be divided
- the value of each spouses’ separate property
- any tax or other economic consequences of the property division
- the extent to which an award of property may eliminate the need for alimony, and
- each spouse’s overall need for financial security.
In evaluating each spouse’s contributions to the accumulation of marital property, a court will include direct and indirect economic contributions, contributions to the stability and harmony of the marriage and family—measured by time invested in family duties and length of the marriage--and contributions to education or training that increased the earning power of the spouse who directly accumulated property. A court will also begin with the assumption that the contributions and efforts of both spouses, whether economic, domestic or of any other type, are of equivalent value.
Marital Property and Separate Property
The first step in the division process is deciding whether property is marital or separate. Mississippi courts presume that all property a couple accumulates during marriage is marital property. Property one spouse brings into the marriage or acquires by gift or inheritance is that spouse’s separate property, provided the claiming spouse can demonstrate ownership with financial records or other documents. While separate property is not ordinarily part of a division in divorce, Mississipi law allows a judge to include it if equitable factors--meaning factors that will make the decision fair--require inclusion.
Marital and separate property are often mixed together—sometimes called “commingling.” Some couples combine their separate assets intentionally; others do it without thinking or meaning to. A premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits to it; a house owned by one spouse alone can become marital property if both spouses pay the mortgage and other expenses.
If the spouses aren’t able to decide what belongs to whom, the judge will have to decide whether to treat any property as the separate property of one spouse. These situations can be very complicated and may require the assistance of an attorney. Spouses who entered into prenuptial agreements before they got married may have an easier time if the agreement specifies which property is separate and which is marital.
After determining which property is marital property, the couple, or the court, will generally assign a monetary value to each item. Couples who need help determining values can hire professional appraisers. Some financial assets, such as retirement accounts, can be very difficult to evaluate and may require the assistance of a financial professional, such as a C.P.A. or an actuary.
Dividing the Property
Spouses can divide assets by assigning certain items to each spouse, possibly with an equalizing payment if one spouse gets substantially more than the other, or by selling property and dividing the proceeds. They can also agree to continue to own property together, though most couples don't choose this because it requires an ongoing financial entanglement. However, some couples agree to keep the family home until children are out of school, or to keep investment property in hopes it will increase in value.
The couple must also assign all debt accrued during the marriage, including mortgages, car loans, and credit card debts, to one of the spouses.