What you Need to Know About Property Division and Alimony in Mississippi
Property division will be a major part of your divorce. It can cause a lot of apprehension and stress, and rightfully so, because you only get one chance to get it right. Because we understand this at R+E, we put much care, consideration, and hard work into achieving your financial goals in divorce.
Mississippi is an Equitable Distribution State
It’s important to understand “equitable” does not mean “equal.” Instead, equitable means fair. To determine what is fair, chancellors take into account several different factors and circumstances. Generally all property division is done in a step-by-step process. First, the property is either labeled as marital or non-marital. Second, the property labeled marital is then valued based on something called “fair market value.” Third, the marital property is equitably divided between the two parties. Finally, alimony is awarded to one party if necessary based on the distribution of property.
Step1: Classify Assets as Marital or Non-Marital
Before division of your property can take place, it must first be classified as marital or non-marital. This is an important first step, because marital property is subject to equitable distribution while non-marital property is not. Non-marital property is property either brought into the marriage or given to one spouse alone through gift or inheritance. On the other hand, marital property is property accumulated during the marriage. Sometimes marital property and non-marital property are mixed and used together. In such cases, the non-marital property can actually change into marital property. If a court is unsure in these cases whether the property is marital or non-marital, it will typically presume it is marital.
Step 2: Value Marital Assets
After classifying the property, the next step is to value each item. Valuation can be done in several different ways. For example, sometimes it can be as simple as looking at account statements or even doing a quick Google search. Other times, however, it may be more complicated and involve hiring appraisers or other experts in the field of valuation. During this step, we use a fair market value—not a liquidation value. The fair market value means the price a willing buyer would pay to a willing seller if both were adequately informed about the transaction.
Step 3: Equitably Divide Marital Assets
When the assets are given a monetary value, the court can then decide how to distribute those assets. A common misconception is the court will divide marital property right down the middle, fifty percent to one spouse and fifty percent to the other. This is not the case, though. In Mississippi, the court attempts to divide the property fairly. Because the assets are not simply divided in half, the process involves many more considerations. The factors courts consider in deciding how to fairly divide property include: (1) substantial contribution to property accumulation; (2) spousal use or disposition of assets and distribution by agreement; (3) market and emotional value of assets; (4) value of each spouse’s separate estate; (5) tax consequences and legal consequences to third parties; (6) the extent to which property division can eliminate the need for alimony; (7) the needs of each spouse; (8) other factors which should be considered in equity. These factors are commonly referred to as the Ferguson Factors.
Another common misconception is a stay at home spouse may receive little to none of the marital assets simply because the breadwinning spouse technically paid for the property. Homemakers can breathe a little easier, though, because this is not the case under Mississippi law. Under Mississippi law, the spouse who works and the spouse who takes care of the home are considered to have equally contributed to the accumulation of property. This means no one spouse is necessarily given more weight in the factor that considers the contribution to the accumulation of marital property.
Step 4: Consider Alimony
The final step in distribution of property is awarding alimony. Alimony and property division go hand-in-hand, because alimony is really just another tool used by the court to fairly divide property. This means it is determined on a case-by-case basis and there is no preset method for determining an alimony award. The court will look to how it can use an alimony award to make property division fair. For example, if one spouse is given a heftier cash asset award or a high value asset during property division or has a substantially higher income than the other spouse, the court is more likely to award alimony to the other spouse.
Alimony comes in several different shapes and sizes, but the most common characteristics include: amount, duration, modifiability, whether it survives death and/or remarriage, and the tax consequences.
Permanent alimony is becoming much rarer because forcing a person to indefinitely pay another person also forces the two people into ongoing contact, and therefore, potential for ongoing conflict. Permanent alimony may be modified.
Lump sum alimony is not taxable to the recipient or deductible for the person paying. It is a fixed amount that is not modifiable and is payable regardless of death or remarriage. The most common use of lump sum alimony is a tool to create equity. For example, in cases where a business is not liquid, the court may award a lump sum payment to the spouse not given the business for the sake of fairness.
Rehabilitative alimony is a fairly new type of alimony used to help provide stability for a spouse while he or she is preparing to re-enter the workforce. Rehabilitative alimony technically may be modified; however, most awards of rehabilitative alimony typically last only a few years.
Reimbursement alimony is awarded to a spouse whose contribution to the marriage is too complicated to recognize in the earlier property division process. For example, a spouse who supported the other through school may be awarded reimbursement alimony. Reimbursement alimony is non-modifiable.
Hybrid alimony is probably the most common type of alimony in Mississippi today, because it allows the type of alimony granted to be uniquely-fitted to the circumstances of the particular case. It is a mixture of the other type of characteristics of alimony, used to accomplish certain goals.
Whether the court decides to award alimony and the specific type of alimony awarded depends largely on your case specifically. The good thing about alimony is that it is flexible and can be molded into exactly the type to fit your case. We know property division can be a headache, but being fully informed on the current law and your options makes the entire process smoother. Not to mention, knowing the general process may help you rest easier knowing few surprises will jump out at you in the middle of the process. We are here to arm you with all the essential knowledge you need to assess your situation, see potential outcomes, and move forward with confidence.
We Can Help You
Here is the way this works. Call our office (601-898-8655) or confidentially submit a basic intake form so our staff can complete a standard conflict check. That’s when we make sure nothing on this end will stand in the way of our being helpful. Then, we will schedule a time for you to talk to one or more of our attorneys to go over your situation.
FAQs related to Property Division and Alimony
- How long does it take to get a divorce in Mississippi?
In short, it depends. However, the absolute shortest amount of time that two individuals can get a divorce in Mississippi is sixty (60) days from the date that the Complaint for Divorce is filed. Realistically, irreconcilable differences cases take several months to complete, while a divorce on fault grounds can take up to and over a year. The length of time that the proceedings take are influenced by many outside factors that your lawyer will not be able to control, such as your spouse, your spouse’s lawyer, and the Judge’s schedule.
- How will the value of our property be determined?
Sometimes valuing property is very simple and can include merely looking to financial statements. Sometimes, however, it is more complicated and we must hire professionals to value the property. How property is valued is largely determined by the specific circumstances, but it is always valued at a fair market value—which means the price a willing buyer would pay the seller given the buyer knows all the details and circumstances surrounding the property.
- If I get a divorce, do I have to go to trial?
No, in Mississippi it is not necessary to have a trial to obtain a divorce. In fact, the majority of Mississippi divorces are negotiated and settled outside of court. However, in order to obtain a divorce without a trial, the parties must agree to a divorce on the grounds of irreconcilable differences, which is our legal term for “no fault.”
- If my spouse is at fault for the divorce, do I get to keep everything?
Not necessarily. Fault is not specifically considered by the court, but each parties' contribution to the stability and harmony of the home is a Ferguson factor. In addition, if it is determined one spouse committed adultery, the cheating spouse should only receive ongoing support if they would be destitute without it.
- If my spouse paid for the property, does that mean he/she will be given that property?
Not necessarily. In Mississippi, courts consider stay-at-home spouses to have contributed to the accumulation of marital property through domestic efforts. This means the income earning spouse is not always given greater weight when the court considers who contributed to obtaining the property.
- If my spouse’s name is on the title for property, does that mean he/she will be given that piece of property?
Not necessarily. Mississippi is no longer a title theory state—meaning the person who has title to property does not, on that fact alone, take priority over the spouse who does not. As long as the property is first deemed to be marital property, it is subject to equitable division regardless of whose name is on the title.
- Is my spouse automatically entitled to half of our estate?
No, it is a common misconception that parties to a divorce are each entitled to half of the estate. Mississippi is an equitable distribution state, which means the division of an estate should be equitable, not equal. Equitable distribution is determined by the Ferguson factors.
- What are the Ferguson Factors?
The Ferguson factors are the considerations derived from a leading Mississippi case that courts now use to determine how to fairly divide property. They are: (1) substantial contribution to property accumulation; (2) spousal use or disposition of assets and distribution by agreement; (3) market and emotional value of assets; (4) value of each spouse’s separate estate; (5) tax consequences and legal consequences to third parties; (6) the extent to which property division can eliminate the need for alimony; (7) the needs of each spouse; (8) other factors which should be considered in equity.
- What determines what is “fair”?
If you go to court, the judge with determine what is “fair” and “equitable” based on eight factors called the Ferguson factors. The court applies the specific facts of your case to these factors and weighs them to see where the scale tips in dividing the property. If you are able to negotiate a settlement with your spouse, the two of you determine what is fair.
- What is lump sum alimony?
Lump sum alimony is usually a one-time payment used to compensate one party who may not have benefitted as much as the other party during the process of equitable division of property.
- What is permanent alimony?
Permanent alimony is what most people think of as the traditional type of alimony—monthly payments awarded to take the place of the support given during marriage. It terminates at the death of either party or when the recipient remarries. It can also be modified based on changed circumstances.
- What is rehabilitative alimony?
Rehabilitative alimony is a specific type of alimony used to keep one spouse “on their feet” after a divorce and while that spouse prepares to re-enter the workforce. It allows a spouse who may not have been working for a period of time during the marriage to have stability in order to adjust to working again.
- What is reimbursement alimony?
Reimbursement alimony repays one spouse for the support he or she gave the other spouse during the marriage. Common examples of this include when one spouse worked and supported the other spouse through school.
- What makes property marital or non-marital?
Marital property is property obtained during the marriage, whereas non-marital property is property given to one spouse through gift or inheritance. It is important to remember that courts presume property is marital unless one party proves it is non-marital by showing the property was given to that spouse by specific gift or inheritance.
- Why do you talk so much about energy when it comes to marital property?
The best way to think about how marital property is created is by determining whether any marital energy was used to earn income or grow the asset. If you bring something into a marriage, or you receive it by gift or inheritance, you did not expend energy during your marriage to obtain it. However, if you went to work everyday to earn income that resulted in the purchase of something, or you stayed at home and kept the children exerting energy while your spouse went to the office, those efforts result in the creation of marital property.
Forms and downloads related to Property Division and Alimony
- Stay or Go EBook (766.00 KB)
- Divorce in Mississippi EBook (265.00 KB)
- Alimony Factors (219.00 KB)
- Armstrong v. Armstrong (259.00 KB)
- Death, Remarriage and Taxes: Alimony (488.00 KB)
- Equitable Distribution Factors (231.00 KB)
- Ferguson v. Ferguson (432.00 KB)
- Financial Declaration (53.00 KB)
- Hemsley v. Hemsley (324.00 KB)
- Hemsley Worksheet (137.00 KB)