You often hear that getting a divorce can be a complicated, lengthy process. What people are usually talking about is not divorce itself but diving up your marital property.
Mississippi follows an equitable distribution model when it comes to dividing property in a divorce. This means that all marital property is divided equitably, or fairly.
Identifying marital and separate property
The first step in your property division is determining which assets are marital property, since this is the only type of property that gets divided.
Marital property consists of assets and debts that you and your spouse acquired during your marriage, or separate property that one spouse brought into the marriage that then mixed with marital property.
Separate property is property that you or your spouse owned before getting married and remained separate. That means it did not mix with marital property. Separate property is not part of the marital property “pot” that gets divided.
How separate property becomes marital property
You might wonder how separate property can mix with marital property. A common example involves inheritance money.
If you received money through inheritance before you got married and it is sitting in a bank account in your name, that money is separate property. This means you keep it in the divorce.
However, if during your marriage you withdrew the inheritance money from your bank account and deposited it into a joint bank account with your spouse, that inheritance money is now marital property and must be divided in your divorce.
Therefore, if you have assets that you would like to keep in a divorce, you should try to keep them from mixing with marital assets.
What equitable distribution means
Once you have identified your marital property, you must determine how it is to be equitably divided. Many people confuse the term equitable with equal.
Equitable does not mean equal. It means a fair overall result. While sometimes an equal (50/50) property division is fair, sometimes it is not.
There are various factors a court examines when deciding on an equitable split of marital property. One is a spouse’s separate property.
Going back to that inheritance example, if you have the inheritance money in your bank account as separate property, and your spouse has none, you are clearly at an overall financial advantage.
The court might decide to give your spouse a slightly higher share of the marital assets (such as a 60/40 split, rather than 50/50), because of your more favorable financial circumstances.
Additional equitable distribution factors
Some other factors a court considers when dividing marital property include each spouse’s contribution to the property accumulation during the marriage, the value of each item of property and the unique needs of each spouse.
One important factor is whether any spouse has hidden, squandered or destroyed marital assets. If your spouse drained one of your joint bank accounts to pay back gambling debts, you might receive a higher overall share of marital property.
Getting a fair deal
Every property division case is different. Just as your marriage is unique, so is your divorce. Each divorce involves specific facts that a court must weigh against the equitable distribution factors.
You and your spouse may always come to your agreement on property division. This can save you time and money, but before you sign any documents, it might be best to have them reviewed by a professional.