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Divorce Division of Property 101

One of the most common questions divorce lawyers get is, "Does it make any difference whose name the property is titled in?" For the most part, the answer is, "No, it does not make any difference whose name the property is titled in." The second most asked question is, "Because I earned this money doesn't it mean that I get to keep all of it?" Again, the answer is, "No, for the most part it doesn't mean you get to keep all of it."

Answering these questions properly requires a short discussion of the evolution of the distribution of property in divorce in Mississippi. Prior to 1994, title to property and the earning of income in the marriage was a very important consideration. If property was titled solely in one spouse's name, then it was likely that he or she was going to get to keep that property in a divorce. In addition, if a person earned all of the money during the marriage and was able to save money in the form of pensions, stocks, savings, or other property, then it was also likely that person was going to be able to keep that property.

A necessary counterpart to Mississippi's prior property distribution system was that it was quite common for the non-earning spouse in divorce to be awarded a significant amount of alimony and for this alimony to be paid until the remarriage or death of the non-earning spouse. Under this state of the law, the non-earning spouse (typically the mother of children), was often awarded somewhere between 10 and 25 percent of the assets accumulated during the marriage, but was also awarded a significant amount of permanent alimony.

This all changed with the significant decisions by the Mississippi Supreme Court in 1994 in the cases of Hemsley and Ferguson. As a result of these two decisions, the distribution of property in divorces in this state completely changed.

Under Hemsley and Ferguson, the law now is that all property earned during the marriage from whatever source by either party is deemed to be "marital property," unless the property was acquired by one of the parties by gift or inheritance and has been kept separate from the other party and other property that is marital in nature. Another exception was property acquired or held before the marriage and which was kept separate during the marriage.

The effect of these rulings was to remove from the equitable distribution analysis the significance of the title to the property and the overwhelming significance of who earned the income which produced the property. In legal parlance, these decisions abrogated the "title theory" of distribution of property in divorce.

An additional and equally significant aspect of the Hemsley and Ferguson decisions was the presumption created by the Supreme Court that the contributions of both spouses to the accumulation of property during the marriage were to be "presumed" equal. The court specifically stated that the contributions of a housewife to the accumulation of assets during the marriage were to be presumed equal to the contributions of the primary wage earner. This was a significant decision to advance the rights of the non-wage earning spouse, typically the mother of children.

Over the many years and many cases which have been decided since the rulings in Hemsley and Ferguson, the courts have struggled with how to interpret these basic rules in the context of specific cases. These many cases and the many different factual situations detailed in the case law have led to a considerable amount of interpretation of the Hemsley and Ferguson decisions which, in many respects, lead to confusion about what will be the result in any case.

Anyone analyzing an equitable distribution situation in a divorce has to understand that the basic rules are there for application, but that the trial court will interpret those rules in the context of the particular facts of each case. A discussion of all of the different interpretations of Hemsley and Ferguson is not possible in this article, so, it is probably best that we simply take away from this discussion a couple of basic rules. Those rules are:

  • A party to a divorce action should not be concerned about whose name the title to the property is in. This is not necessarily the determinative aspect of distribution.
  • A person should not think that just because his or her earnings produced a particular asset during the marriage that that asset is not marital property or is not subject to division with the other spouse. For example, many people want to think that because a pension plan accumulated during the marriage has been attributable solely to their wages, that it is not the other spouse's property. Under most circumstances, that is simply not the case and the pension will be subject to equitable distribution.
  • A housewife or other non-wage earning spouse should stand on equal footing of the wage-earning spouse in the determination of the distribution of assets. There is a clear presumption that the contributions are equal.
  • No one should misinterpret the presumption that contributions are equal to mean that all property should be divided equally. The court has clearly stated that Mississippi is not a common-law state where all property is divided equally and that the court must go through the process of analyzing how the property should be distributed.
  • Inherited or gifted property is generally protected from distribution in the marital estate if two factors are present: A, the property has never been subject to joint use (such as a house lived in by the family), placed in a joint account, or been titled in the other spouse's name; B, after equitable division of the property, the net effect is not so disparate that the court does not need to do something more to make things more fair.

As stated earlier, the nuances of the possible distributions of property and the actual distribution by particular judges are infinite. There is no way for anyone to read this article - or any other treatise on the distribution of property - and know for sure how their property will be divided. The benefit that can be gained from the basic principles set forth in this article is to obtain some comfort about the basic tenets of an equitable distribution and perhaps to set the minds of some persons at ease who have concerns about their situation.


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Mississippi decides property division based on equitable distribution, and they are the only state in the U.S. that takes the name on the title of property into account.
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