Generally speaking, retirement accounts accumulated during the marriage are marital property subject to equitable division in a divorce. However, portions of retirement accounts that exist prior to the marriage or can be attributable to one of the parties’ separate estates outside the marriage are not marital property.

When courts decide how to divide property in a divorce, the court must first classify each asset as either marital or separate property, place a value on the property, divide the property based on the factors set out in Ferguson v. Ferguson, 639 So. 2d 291 (Miss. 1994) and then award alimony if necessary.  This process is referred to as Equitable Division, not to be confused with equal division.

Marital property is essentially any property that was acquired during the marriage, although there are variations and exceptions to that general rule. Normally gift and inheritances are considered separate property as well as assets purchased or acquired before marriage.

The factors the Court uses to determine how to divide property classified as “marital” are:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:

a. Direct or indirect economic contribution to the acquisition of the property;

b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and

c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.

2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.

3. The market value and the emotional value of the assets subject to distribution.

4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;

5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;

6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;

7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,

8. Any other factor which in equity should be considered.

As you can see by the factors, the process is not an exact science and the result is unique to the individuals before the Court.  It is important for divorcing individuals to be aware of the factors the court is required to consider so that they will better understand the process and be able to assist the attorney in focusing on those facts necessary for equitable division.

In Jenkins v. Jenkins, a recent Mississippi Court of Appeals case, the Court upheld the ruling of the Jones County Chancery Court, wherein the Court awarded a significantly larger portion of the marital property to Husband. Important factors noted by the Court in making this division were that Husband made much more contribution to the marital estate and that the divorce was caused by Wife’s addiction to prescription drugs. Fault and contribution are two of several factors courts consider in dividing marital assets. Importantly, this was only a seven year marriage, and Husband brought significant assets into the marriage.

“Equitable distribution does not mean equal distribution,” the Court said, citing prior case law.

This case presents one set of circumstances where Mississippi law does allow a spouse who is independently wealthy prior to marriage to withstand a division of marital property in a divorce and retain a large portion of his or her assets.

Everyone knows divorces can get pretty expensive.  A department store has come up with a solution to help newly divorced people get back on their feet – a divorce registry.  The department store has figured out that with people basically losing half of their belongings in a divorce, family and friends may want to purchase them a gift, much as they do for a wedding, so that items such as irons, toasters and the like may be replenished.  I’m not sure how successful this will be, but it definitely draws attention to the impact a divorce has on items that are often overlooked.

When a couple divorces in Mississippi, all marital property must be divided.  For ease of reference, marital property is essentially all items purchased or accumulated during the marriage by either party, although there are exceptions.  While most people focus on the larger items like vehicles, televisions and furniture, households are filled with all sorts of items that must also be divided.  A person may not realize until after a separation, how much replacement of household items costs.  These are costs that are in addition to attorneys fees and income lost from the other spouse.

When separating, it is advisable for both spouses, assuming they can agree, to go through the marital residence together and divide all the items room by room.  A list can be created at the same time so each will have a record.  Although a person often is anxious to move on and only focuses on the big items, spending a little time on the little things will save you a lot of money down the road.