Property Division & Equitable Distribution

During divorce, the division of marital property is often problematic and a source of dispute for many couples seeking to dissolve their marriage. Working through issues relating to the distribution of marital property requires an experienced Jackson divorce attorney who is willing to carefully scrutinize the facts of your case and make an argument relating to the classification and distribution of the marital estate.

Mississippi is an “equitable distribution” state. Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994). Under this manner of distribution, it does not matter which spouse is the title owner of a particular asset. Instead, marital property is distributed between the parties upon divorce based on the equities of their particular situation. It is important to remember that equitable distribution does not necessarily mean equal distribution– so you cannot assume that everything will be divided 50/50. Instead, courts of this state utilize several steps when making an equitable distribution of marital property. These steps include: (1) classifying assets as marital or separate; (2) valuing assets (occasionally using experts); (3) divide marital property equally based on the factors outlined in Ferguson; and, (4) award alimony if needed after the division of assets.

The first step is the classification of all assets as marital or non–marital property. Generally, non–marital property is an asset brought into a marriage or an asset received by gift or inheritance during the marriage. Marital property is an asset acquired or accumulated by marital efforts during the course of the marriage. Property that would otherwise be non–marital may lose its non–marital status if combined or “commingled” with marital property to the point that you can no longer identify its non–marital characteristics. Separate property may also become marital if used by the family through a concept called the “family use doctrine.” An asset can have both marital and non–marital components, as Jackson divorce lawyer M. Devin Whitt can explain, and there is a presumption in favor of marital property in Mississippi.

Step two in property division is to value all assets with the assistance of Jackson divorce lawyer M. Devin Whitt. This may be as simple as looking at bank statements or other information. However, real estate appraisers, accountants or other professionals who specialize in valuation may be required to place a proper value on certain assets. Sometimes the parties may estimate value of an asset to save litigation expenses. For the measure of value of an asset, it is normal to use a fair market value, i.e., the value that a willing buyer would pay to a willing seller if they each know all relevant information and there is no pressure to buy or sell.

After all the assets have been identified and the values of the assets known, a division can be made either by agreement or court order, taking the "Ferguson Factors.” into account. It is important to remember that equitable distribution does not mean equal distribution, so do not assume that everything will be divided equally. The Ferguson Factors include:

1. substantial contribution to property accumulation;
2. spousal use or disposition of assets and distribution by agreement;
3. the market or emotional value of the assets;
4. the value of each spouse’s separate estates;
5. the tax and legal consequences to third parties;
6. the extent to which property division can eliminate the need for alimony;
7. the needs for each spouse;
8. Any other factor that should be considered in equity.

In Mississippi, there is the added consideration as to whether marital fault exists, but any division should not be made to punish a party for marital misconduct. Remember, if you do not have a fault based ground for divorce and you do not have an agreement, you will not get a divorce. Sometimes, this will result in property settlements that may be considered unfair should one party desire a divorce more than the other.

After identifying, valuing and distributing marital assets and debts, the last step in equitable distribution is to award alimony, if the award is made necessary due to the inadequacy of the property distribution. If the property division is large, an alimony award is much less likely. Unlike the child support guidelines in Mississippi, there are no statutory guidelines to help the parties, attorneys or the judge determine what amount of alimony is appropriate in a given case.

Based in the Jackson area, knowledgeable divorce attorney M. Devin Whitt believes in aggressive, diligent and compassionate representation of our clients involved in family law proceedings. Should you need representation or have questions relating to a divorce property division or other family law matter in Mississippi, please contact M. Devin Whitt at 601-607-5055 to schedule a consultation with an experienced Jackson divorce attorney.