Dividing Assets During A Divorce: The Challenge of "Equitable Distribution"

Posted by Leslie ShumakeAug 09, 20220 Comments

     Two Questions we are often asked at an initial conference in a divorce are:

     "Is she (or he), entitled to one-half of everything we have?"


     "The house, car, etc., is in my name only..this means he (or she) has no claim to it, right?

      These two questions, in a way, go to the heart of the law in Mississippi on the division of marital property.

      Mississippi is an equitable distribution state.  This means that in each divorce case the Judge looks at all of the property and assets accumulated during the marriage, looks at all of the debt incurred during the marriage, puts it in a big pot, and then makes a decision as to who pays what and who gets what.  There is no automatic "50-50" rule, so each case is different, depending on the circumstances of the parties. 

     Also, the judge has to factor in the relative financial positions of the parties which will be in effect both during the divorce proceeding and even after the divorce.  

     For example, let's say the husband wants to keep their house, but it is obvious he cannot make the mortgage payment based on his income alone.  He probably can't qualify for a refinance.  Assuming the wife, on the other hand, wants the house and can make the mortgage payments, it would make no sense for a Judge to award it to the husband.  He might award the home to the wife, and try to give the husband some other asset to balance it out.  Or, he could order it sold and give the husband 30% of the net profit, for instance, with 70% to her...it would not have to be 50-50.  The Judge could also give the wife the opportunity to buy the husband out at for a certain price.   And,  I emphasize again that it makes no difference whose name was on the deed.  If the house was purchased during the marriage, it is most always marital property subject to division by the Court. 

     Now, sometimes we argue over what constitutes marital property and what constitutes non-marital property.  Using the example above, let's assume that the home now owned by the parties was purchased by the wife five (5) years before she married her husband.  It was obviously not an asset purchased during the marriage, so one might think at first blush that it is separated out and not put into the pot as a marital asset for the judge to divide.  But, lets also assume, for the purposes of the above example, that the parties have been married for ten (10) years, with one or both paying the mortgage, maybe re-financing it, or perhaps even getting a home equity loan at some point.

     Now, it could be argued that after ten (10) years, what was once non-marital property became marital property.   No one knows at what point that happened, but it is safe to say that the longer the two were married, the greater the chance that it was converted to marital property subject to division. 

     To sum up, the first question always to be asked is, "Was the debt or asset accumulated during the marriage?"  If it was, who accumulated the debt or asset doesn't matter, whose name is on the asset or debt doesn't matter, and who paid for it doesn't matter.