How property gets divided in a Mississippi divorce

Divorce is rarely simple, especially when deciding who keeps the house or the retirement account. In Mississippi, the law does not mandate an automatic split of everything down the middle. Instead, the state follows a rule called equitable distribution.

The court strives to divide assets fairly based on each spouse’s needs and contributions, which does not always result in a 50/50 split.

What counts as marital property

Before dividing anything, a judge must label every asset as either marital or separate property.

• Marital property:  Under the Hemsley standard, this category encompasses assets or debts obtained by either spouse during the marriage through their joint or individual efforts.
• Separate property:  Assets categorized as separate generally involve property owned prior to the union or specific items like gifts and inheritances received by one spouse individually.

The transmutation loophole: Be careful with separate assets. If you use an inheritance to pay off the mortgage on a joint home, that “separate” money may lose its separate status by being mixed.

Furthermore, under the “Family Use Doctrine,” consistent family use can convert a separate asset to marital property. Once this occurs, the court may treat the entire asset as marital property.

Judges decide what’s fair

Mississippi judges use specific factors to decide what is “fair.” These Ferguson Factors include:

1. Direct or indirect contribution to the property (including homemaking and child care)
2. Whether a spouse wasted or disposed of assets during the marriage
3. The market and emotional value of the assets
4. The tax consequences and economic impact of the sale or transfer of assets
5. The value of each spouse’s separate estate
6. The extent to which property division may eliminate the future need for alimony
7. The financial security and needs of each party
8.  Any other factor that equity reasonably demands the court consider

The court evaluates these guidelines based on the unique circumstances of each case. The judge decides how much weight to give each factor when seeking a fair result.

Make sure you have a say in the process

If you file for divorce based on irreconcilable differences, there is a strict 60-day waiting period after filing before the court can grant the divorce. While recent legislative sessions have seen debates regarding “irretrievable breakdown” as a new ground for divorce, Mississippi currently requires either mutual consent for a no-fault divorce or the proof of specific fault-based grounds.