Divorce can be a time of uncertainty and upheaval. The fluctuations it can cause in your life may make you rethink your plans for the future. Your parenting schedule, your resistance, and even your assets and income can all fluctuate wildly as a result of divorce. That’s why it’s so important to be aware of what Mississippi law will consider marital property and what it will consider separate property. By being aware of the key differences, you can take some of the uncertainty out of divorce. Here’s a handy guide of essential things to remember:

Separate Vs. Marital Property

When a divorcing couple can’t agree on the division of property, they must ask for the court to decide how assets will be distributed. The first step is to distinguish separate property from marital property. The difference between separate and marital property is straightforward on the surface— separate property is anything the individuals owned before the marriage, and marital property is anything either one acquired during the marriage. Unfortunately, like most things in divorce, the actual application is more complicated than it seems.

Marital Property

Marital property is defined as any asset or debt that was accumulated during the marriage. This includes paychecks, real estate, businesses, investments, employment benefits, etc. If both spouses’ names are on the property title, it will be considered marital property. If one spouse owns a house or car before the marriage but adds their spouse’s name to the title during the marriage, the asset is now considered marital property. Likewise, if the payments for the car or house come from the communal income of the spouses, it will also be considered marital property. The longer a marriage lasts, the more likely it is that the couple has “commingled” their finances, and thus more assets will be considered shared property.

Separate Property

Separate property usually refers to any asset or debt acquired before the marriage that cannot be considered marital property using the qualifications above. Separate property can be gained during the marriage, however, if the asset is explicitly intended for only one spouse. This can include things like inheritance, awards, or settlements from civil lawsuits which only involve one person. A settlement from a car accident is an example of separate property that can be acquired during the marriage.

Equitable Distribution

Mississippi follows the equitable distribution model for property division during divorce. Unlike community property states, Mississippi only separates what is considered marital property. This does not necessarily mean a 50/50 split of all shared assets. The court considers several factors when dividing property, such as:

• The contribution of each spouse to the accumulated property, including indirect economic contributions, contributions to the family’s stability, and contributions to the education and training of the wage-earning spouse
• Each spouse’s use and need for the asset
• The emotional and sentimental value of the asset
• The tax consequences and legal obligations the asset may hold to a third party
• Whether the property division might eliminate the need for spousal support
• And any other factor the judge may deem to be important

Bank Accounts

So you may wonder how equitable distribution will affect your individual bank accounts. Most couples combine incomes either in joint accounts or by making payments to separate bills that contribute to the household as a whole. There are some, however, who aim to keep their bank accounts entirely separate from their spouse. These people may falsely believe that if their spouse’s income never touches their account, the account will remain entirely theirs.

This is an incorrect assertion, however. As we learned above, most income acquired during the marriage from various sources is considered marital property for the sole fact that it was acquired during the marriage. Perhaps you were able to accumulate the contents of your bank account because you had a spouse at home to take care of your children. In the eyes of the law, both spouses contribute equally to the marriage in separate ways, so one spouse cannot hoard money by keeping their bank accounts separate. In most cases, the contents of both individual accounts will be considered marital property.

An Exception

That said, there are exceptions to almost every rule in law. If the circumstances of a particular divorce meet specific requirements, an argument can be made for separate bank accounts remaining separate property. For instance, if no money acquired during the marriage was added to the bank account, it can be argued the account was not “commingled” and is therefore separate property.

If you are going through a divorce and need advice on your specific situation, call The Law Offices of Rusty Williard at (601) 824-9797 today.