Mississippi Divorce: Dividing Property

Learn which property gets divided in a Mississippi divorce, how judges come up with a fair distribution of that property, and how to avoid having a judge decide for you.

By , Attorney · Tulane Law School
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As part of getting divorced in Mississippi, you and your spouse will divide your property. If the two of you can't reach an agreement on your own (or through mediation) you'll need to ask a judge to decide. Learn how a Mississippi judge will make decisions about which property is yours to keep, which will be distributed between you and your spouse, and how that property will be divided.

Is Mississippi a Community Property State?

No. Like most states, Mississippi uses the "equitable distribution" model to determine ownership of a married couple's assets and debts. That means that judges will divide a couple's property in a way that is fair to both spouses—which doesn't necessarily mean a 50-50 split.

Characterizing and Valuing Property in a Mississippi Divorce

Before your property can be divided in a divorce, a Mississippi judge will first need to classify each of your assets and debts as marital property or separate property. The marital property will be divided in the divorce, while each spouse will keep their own separate property.

What Is Considered Marital Property in Mississippi?

Mississippi's laws don't include a specific definition of marital property. But the state's supreme court has held that all of a married couple's assets and debts are presumed to be marital property if they were acquired or accumulated during the marriage. This generally includes any income earned, or real estate or other property purchased, by either spouse during the marriage, regardless of the title on the property. (Hemsley v. Hemsley, 639 So. 2d 909 (Miss. 1994).)

Even when an asset is in one spouse's name, a Mississippi court may consider it marital property if the other spouse made significant contributions (in cash or with "in-kind" services) to its acquisition. Similarly, any increase in the value of a spouse's separate asset during the marriage may be treated as marital property if that increase was at least partly due to the other spouse's contribution. (Pearson v. Pearson, 761 So.2d 157 (Miss. 2000); Arthur v. Arthur, 691 So.2d 997 (Miss. 1997); Craft v. Craft, 825 So. 2d 605 (Miss. 2002).)

What Is Considered Separate Property in Mississippi?

Mississippi courts may treat property as separate if a spouse can prove they acquired it "prior to the marriage or outside the marriage." Along with assets that a spouse owned before the marriage, separate property generally includes:

  • gifts to one spouse that are intended for that spouse's exclusive use, and
  • property that one spouse inherits.

(Johnson v. Johnson, 650 So. 2d 1281 (Miss. 1994).)

What Date Do Mississippi Judges Use to Classify Property as Separate or Marital?

As discussed above, marital property in Mississippi is presumed to include any property (or debts) either spouse acquired during the marriage. But when does the time period "during the marriage" officially end? Here again, Mississippi law doesn't say. But the state's courts have held that judges may choose a date that's appropriate under the circumstances, from the time the couple permanently separated up to the date their divorce becomes final. (Collins v. Collins, 112 So. 3d 428 (Miss. 2013).)

Of course, if you and your spouse reach an agreement on dividing your property rather than going to trial on the issue (more on that below), you'll also agree on which of your assets are marital—and thus will be part of the property division.

Can Separate Property Become Marital Property?

In some cases, property that starts as one spouse's separate property can become marital property. This commonly happens when a spouse mixes (or "comingles") separate and marital funds—for instance, by depositing an inheritance into a joint bank account. (Traxler v. Traxler, 730 So.2d 1098 (Miss. 1998).)

Separate property may also be converted into marital property if both spouses regularly use it and contribute to its upkeep during the marriage (a concept known as "transmutation"). For instance, Mississippi courts generally treat the family home as marital property, even if it one spouse owned it before they married, as long as both spouses were living there and contributing to its upkeep. (Lockert v. Lockert, 815 So. 2d 1267 (Miss. Ct. App. 2002).)

How Is Property Valued?

After filing for divorce in Mississippi, you and your spouse must submit financial disclosures, with detailed information about your assets and income, if you have any financial issues to resolve (including the division of your property). You'll need to assign a value to each item of property. If you and your spouse can't agree on the value of any asset, a judge will have to review the evidence you both provide and decide for you.

For certain kinds of assets, like your home or family business, you'll probably need help from appraisers, actuaries, or other financial experts who can assess the property's fair market value.

Can You Agree on How to Divide Your Property?

You and your spouse always have the option of agreeing how to split your property. You'll need to prepare a written agreement, which you'll both sign in the presence of a notary. A judge will have to review and approve the agreement before making it part of an official court order, but judges generally approve these agreements unless they appear to be unfair.

If you and your spouse can also agree on how to handle all other aspects of your divorce (like alimony, child support, and child custody) before you file for divorce in Mississippi, you may be able to file for an uncontested divorce. Uncontested divorces are typically quicker, simpler, and less costly than traditional contested divorces. In many cases, couples can get an uncontested divorce without hiring a lawyer, either entirely on their own or with the help of an online divorce service.

How Do Mississippi Judges Decide What's Fair When Dividing Property in a Divorce?

According to the Mississippi Supreme Court, a judge's goal in a divorce is to divide your property fairly based on the facts of the case, ending the couple's financial relationship and leaving both spouses in a position to be self-sufficient after the relationship ends. The Court has provided guidelines for the factors judges should consider when making these decisions, as outlined below. (Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994).)

Spouses' Contributions

Judges will consider both spouses' substantial contributions to acquiring or growing an asset, including:

  • direct or indirect economic contributions
  • contributions "to the stability and harmony of the marital and family relationships," such as unpaid child care and domestic work, and
  • contributions to the education, training, or other accomplishments of the other spouse that affect that spouse's earning capacity.

Mississippi courts presume that both spouses' contributions are equally valuable, regardless of whether they're financial, domestic, or of another nature. (Hemsley v. Hemsley, 639 So.2d 909 (Miss. 1994).)

Disposal of Marital Assets

The judge should take into account the degree to which either spouse has already spent, sold, or otherwise disposed of any marital assets. This ensures that one spouse doesn't receive more than their fair share by making large transactions or withdrawals before the marital property is officially divided.

The judge will also consider whether any of the couple's property has already been distributed between them, whether through a court order or their own agreement.

Value of the Property

The judge will consider not only the fair market value of the couple's marital assets, but also their emotional value. For instance, one or both spouses may have a deep emotional connection to the family pet.

Even though the spouses will ordinarily keep their own separate property after the divorce, judges should also consider the value of those separate assets when trying to reach an overall property division that's fair.

Financial or Legal Consequences

The judge will consider how any proposed property distribution could affect either spouse's taxes, finances, or legal or contractual obligations. For example, there might be significant financial penalties for making an early withdrawal from your retirement account, and the financial consequences of selling or refinancing your home at a particular time will depend on the state of the housing market.

The Spouses' Financial Needs

The judge will weigh each spouse's needs for financial security, taking into account their assets, income, and future earning capacity.

Minimizing Future Conflicts

The judge's goal is to divide the property in a way that allows the divorced spouses to go their separate ways. Among other things, that means avoiding (as much as possible) the need to make further payments or have other financial dealings with each other in the future. Judges may award future alimony payments in Mississippi, but only after they've divided the couple's property, seen how much each spouse will have in the way of assets, and decided that those assets wouldn't be enough to meet one spouse's needs. (Lowrey v. Lowrey, 25 So.3d 274 (Miss. 2009).)

Who Gets the Family Home in a Mississippi Divorce?

As we discussed above, Mississippi courts generally treat the family home as marital property, even if a spouse owned it before the marriage, it was originally a gift or inheritance, or it's in one spouse's name. There's no simple rule for determining who gets to keep the family home after divorce in Mississippi if it's considered marital property. Divorcing couples should carefully consider all their options for dealing with the house, which include selling it and sharing the profits, negotiating for one spouse to buy out the other spouse's share, or continuing to co-own the home.

If you can't agree about how to deal with the family home, a judge will choose the arrangement that seems the most fair based on the circumstances of your case. When you have minor children, the judge will often assume that it's in their best interests to remain in the family home with the parent who has primary physical custody. A judge may also order a buyout or force you to sell your home, even if one or both of you object. That's why it's a good idea to try to reach an agreement with your spouse if you want to avoid these outcomes.

What About Dividing 401(k) and Other Retirement Accounts?

Like other types of property in a Mississippi divorce, the value from a spouse's pension, 401(k), or other retirement account is generally presumed to be marital property if it was acquired or accumulated during the marriage. Even if the account is in one spouse's name and only one spouse made financial contributions to it, any value that accumulated after the start of the marriage (but not before) is generally treated as marital property, which means it may be divided among both spouses in the divorce. (Arthur v. Arthur, 691 So.2d 997 (Miss. 1997).)

Splitting retirement accounts can be complicated and can result in unforeseen tax consequences. Especially if one (or both) of you have a defined-benefit pension or 401(k), you'll probably need legal and financial advice. An experienced family lawyer can explain your options and refer you to a tax or other financial professional if necessary.

Getting Help With Your Divorce and Property Division

If you and your spouse are struggling to agree on how to divide your property, you might consider mediation. An experienced mediator can help you reach a mutually acceptable agreement, potentially saving you time and avoiding the stress of a trial. The cost of divorce mediation is also generally much lower than the cost of hiring a lawyer to argue your case in court.

If you can't reach an agreement with your spouse through mediation or otherwise, consider meeting with a family lawyer in your state, who can evaluate your case and advise you about your options. A lawyer's help is especially important in certain situations, including if you are experiencing domestic violence or if you think your spouse may be hiding assets.

Also, you should know that hiring an attorney isn't an all-or-nothing proposition. Many divorce lawyers offer as-needed or consulting services—for instance, if you want help with drafting or reviewing your settlement agreement to make sure you haven't overlooked anything important. Before deciding whether to hire a divorce lawyer, you'll usually have the option to meet with the lawyer and learn more about what they can offer.

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