Divorce is a difficult and uncertain time. Many personal and financial changes occur in a relatively short amount of time. Knowing what to expect as you head into a divorce can ease your tension and give you a plan for the future.
Mississippi is an equitable distribution state. Unlike community property states, Mississippi only separates what is considered marital property during a divorce. Furthermore, the marital property is not necessarily divided 50/50, but rather in an equitable manner determined by the court. It is also possible for these divisions to be decided solely by the divorcing couple, but if they cannot agree, the court must make the final call.
Equitable Does Not Mean Equal
The equitable distribution of property is how divorces are handled in Mississippi. First, the court identifies what is marital property and what is separate property, and then it begins the complicated process of dividing the marital property. Unlike community property states, the assets do not need to be distributed 50/50. They need only be separated fairly and equitably. The distribution of assets becomes more complicated the longer the couple has been married. It is especially complex when children, businesses, and retirement plans are involved. Here are some of the factors the court will consider when dividing marital property equitably:
- How much each spouse has contributed to the marital property
- The market value of the marital property
- The emotional attachment each spouse may have to particular assets
- The value of each spouse’s separate property
- Each spouse’s need for financial security
- Whether alimony is necessary
- Who will be awarded the marital home
All of that said, we need a working definition of marital property and separate property to understand equitable distribution fully. Marital property is any asset acquired during the marriage. This may seem like a simple definition, and it is when talking about assets like cars, furniture, or jewelry. Those items can be appraised easily and divided based on their value. But marital property also includes more complicated assets like the profits of a family business during the marriage and the contributions made to retirement plans.
Separate property is a bit more straightforward, but it can also become complicated depending on the situation. Separate property, generally speaking, is anything the individuals bring into the marriage. It can also include assets inherited during the marriage. This can become complicated because of the natural commingling of marriage. For instance, if the spouses enter into the marriage with their own separate bank accounts but then make deposits into each other’s bank accounts, both accounts may now be considered marital property.
Even intent can play a factor when determining marital property. If one spouse owns an apartment before the marriage and decides to rent it out in order to afford a new marital home, the profits made on the apartment may be considered marital property. However, if they rent out the same apartment after the marital home has already been purchased, the rent from the apartment might remain a separate asset. Equitable distribution is so complicated because of complex factors like these. There will likely never be two divorce cases where the property is divided exactly the same way.
Determining The Value Of Assets
The overall value of the assets is very important when it comes to dividing them. The court will attempt to divide everything equitably, so they will make little allowances here and there in the pursuit of fairness. They may award the marital home to the spouse who gets custody of the children, for instance, but then award the corresponding value of the house to the other spouse. The value of all marital assets will be determined through professional appraisers who report their findings to the court. More complicated assets like the income of a shared business or the interest gained from an investment will require the aid of accountants or other financial experts.
Dividing The Property
Spouses can choose how their property is divided as long as they are able to work together. They are encouraged to make a separation agreement independent of the court that they can both agree on. If the couple can work together successfully, they can save considerable time and money in court proceedings and fees.
Unfortunately, divorce is often a time when communication breaks down, and cooperation can seem impossible. That is when the court will take over and divide all the marital property in a fair and equitable way. Discussing the division process with your attorney is the first step toward making a plan to get what you want.
If you have more questions about your divorce or the equitable distribution process, call The Law Offices of Rusty Williard at (601) 824-9797.