Mississippi Family Lawyer Blog

The entire concept of property division in a Mississippi divorce is rooted in fairness. In every divorce case, our Chancery courts are charged with the task of determining what is fair on a case-by-case basis. Typically, in a divorce, each spouse’s subjective view of fairness differs. Each spouse generally wants to keep as much of the marital property for themselves as possible following a divorce. And because of this general feeling and inherent goal of retaining everything possible in a divorce, a divorce can get ugly–and get ugly fast. In some cases, spouses have taken the “if I can’t have it, no one can” approach and dissipated–or wasted–marital assets that were otherwise subject to equitable (fair) distribution in divorce. A spouse’s wasteful dissipation of marital assets is a surefire way to complicate the divorce, prolong the divorce, increase attorney costs, and–most importantly–upset the Chancellor presiding over the divorce case. In other words, wasteful dissipation could be considered a “cardinal sin” in a divorce case.

“Wasteful dissipation is, by definition, ‘to indulge in extravagant pursuit of pleasure.'” Lowrey v. Lowrey, 25 So. 3d 274, 293 (Miss. 2009) (citing Webster’s II New College Dictionary 330 (1995)). Wasteful dissipation may occur during the marriage–typically in the time leading up to, or during, a period of separation–or while a divorce is pending. Accordingly, wasteful dissipation of marital assets is a prime consideration in both property division and alimony determinations in Mississippi. See Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994); Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). Remember, alimony–or post-marital spousal support–is only awarded to balance the scales of fairness between the spouses following property division. Williamson v. Williamson, 81 So. 3d 262, 274 (Miss. Ct. App. 2012) (finding error where the lower court considered alimony prior to property division). So, the overarching purpose of examining any waste of marital assets is to ensure that one spouse has not inequitably wasted property that the other spouse would have been entitled to in a divorce.
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Who gets the house? This is the million dollar question I get from many of my clients. Simply put, the answer to who gets the marital home in a Mississippi divorce is not always an easy answer. The marital home or residence is often the largest marital asset the parties possess, so it is not unreasonable for both spouses to want to retain or keep the marital home in a divorce. However, in some instances it is not reasonable, fair, or financially sound for one or either spouse to retain the marital home after divorce. And ultimately, it is up to the chancellor in the divorce proceeding to determine who gets what in a divorce, including who gets the house.
who gets the house.jpgIn Mississippi, chancery courts and chancellors are given vast discretion in awarding certain marital property to either divorcing spouse. Johnson v. Johnson, 650 So. 2d 1281, 1288 (Miss. 1994) (citations omitted); Boykin v. Boykin, 445 So. 2d 538, 538-39 (Miss. 1984) (“there is no reason why a chancellor, under the broad discretion granted him, cannot in his decree award possession of the marital residence to either party.”). As it pertains to awarding the marital home to either spouse, chancellors generally consider the equitable distribution factors laid out in Ferguson and they also “consider all the awards to the payee[recipient] spouse and the concomitant burden placed upon the payor spouse.” Brooks v. Brooks, 652 So. 2d 1113, 1124 (Miss. 1995) (referring to Brendel v. Brendel, 566 So. 2d 1269 (Miss. 1990)); see generally Ferguson v. Ferguson, 639 So. 2d 921 (1994). Essentially, when awarding the marital home to either spouse, chancellors are charged with determining what is fair as well as assessing whether an award of the marital home to one spouse will place an unreasonable burden (usually an unreasonable financial burden) on the awarding spouse. Thus, if a spouse is going to fight to keep the marital home in a divorce, he or she should have a good reason to do so and should make sure that he or she can afford to keep the house.
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Do not “sit” on your right to enforce or collect on a divorce judgment. Let me repeat that: DO NOT wait too long to enforce a divorce judgment or any incorporated alimony, property settlement, or child support judgment. I give this counsel to all prospective clients that contact me asking whether they should bring their ex-spouse back to court to enforce alimony, property settlement, and/or child support agreements/provisions associated with a divorce judgment (collectively “divorce judgment”). If a person does not timely seek to enforce a divorce judgment, the law can and will bar enforcement of that judgment by way of the statute of limitations.

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In assessing any case, one of the very first things an attorney does is determines whether the statute of limitations has ran on a client’s claim. The statute of limitations sets a particular time period for claims and causes of action to be filed so as to ensure that such claims are “ripe” for judicial determination. If a person files a claim or seeks to enforce a judgment outside the statute of limitations–after the legally prescribed time to bring the claim has ran or expired–then the person’s otherwise viable claim will be barred by the statute of limitations because it is considered untimely, or “stale.” Despite very few narrow exceptions where the doctrine of laches or equitable estoppel applies, if the statute of limitations has expired on a given claim or right to enforce, then recovery or relief cannot be had on such a claim. See e.g., Nicholas v. Nicholas, 841 So. 2d 1208, 1212-13 (Miss. Ct. App. 2003). This concept equally applies to divorce judgments, including alimony, property settlement, and child support provisions/judgments included in, or attached to, a final judgment of divorce.
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One of the most frequently asked questions I have received in my years of divorce practice is “how much is this divorce going to cost me?” This is a fair question, but a tough one to answer. In Mississippi, divorce is neither easy nor free. While I often find myself going to great lengths to save my client’s time and money in divorce cases, the financial impact of divorce is always present. Because divorces can cause a serious financial burden for some individuals, divorce costs should be a key factor when considering whether to divorce and the attorney you use. In fact, one of the most important divorce costs in any divorce case in Mississippi will be attorney’s fees. One would generally think that each party to a divorce is responsible for paying his or her respective attorney out of their own pocket. But think again, because courts are able to award one spouse or the other reasonable attorney’s fees in certain cases.
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From cases involving work-related injuries to those involving injuries arising from car accidents, personal injury litigation is a constant staple in our courts today. Generally, the result of these types of legal matters is either (1) an agreed-upon, financial settlement between the parties or (2) a money damages judgment awarded by a court of law. These personal injury “awards,” including workers’ compensation awards, are often paid out over time. So the remainder, or the outstanding amount of such monetary settlements and awards, still owed at the time of divorce can garner extra attention in divorce proceedings when it comes to property division.

As mentioned in a few of my earlier posts, Mississippi is an equitable distribution state whereby chancery courts equitably, or fairly, divide marital property–or property acquired or accumulated during the marriage or for the benefit of the marriage–upon divorce. Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). The issue then arises whether a particular spouse’s personal injury award, settlement money, or any remainder thereof constitutes marital property subject to equitable distribution.
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The vast majority of my law practice involves divorce and family law matters in Mississippi. As a result, a lot of the work I perform goes through the Mississippi chancery courts, rather than state circuit courts. When I tell many of my clients that their case will be heard in chancery court, they often ask me what’s the difference between the two types of state courts. The distinction is not always the easiest to understand. In short, the Mississippi court system is comprised of both courts of law and courts of equity. Some courts focus on what is “fair,” while others focus on what is “just” under applicable law. Mississippi chancery courts–or family law courts–are courts of equity, while state circuit courts are courts of law.chancery.jpg
Chancery courts originated in medieval England. The Chancery dynamic is one common law holdover that played a considerable role in legal jurisprudence in the early years of the United States. These courts were developed in England to help fill the inequitable voids created or fostered by the English law courts. English Kings of the time commissioned councils led by Lord Chancellors to oversee and resolve inequities in the law, or those created by a lack of governing law. And interestingly, lawyers that engaged in Chancery practice were known as “solicitors in equity.”
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In most divorces, there is almost always some sort of property dispute–insofar as it relates to classifying marital and separate property for the purpose of property division. Depending on the asset(s) at issue, these disputes can be very complex and taxing on both the courts and parties involved. Over the years, Mississippi courts have adopted or developed tools to help Chancellors decipher what constitutes “marital” property in divorce/property division cases. One of these tools is known as the “family-use” doctrine.

Remember, Mississippi is an equitable distribution state whereby only marital property is subject to property division. Accordingly, a spouse’s ownership or title to certain property is not outcome determinative of each party’s rights to that property in light of a divorce action–there is no presumption of ownership to titled spouses in Mississippi divorces. Pearson v. Pearson, 761 So. 2d 157, 163 (Miss. 2000). Thus, the first step Mississippi courts go through in property division is classifying each spouse’s property to determine what is and is not “marital” property. And this is where the “family-use” doctrine kicks in.
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Adultery is one of the most utilized grounds for divorce. As unfortunate as it may sound, many spouses commit adultery. There are countless psycho-social studies and surveys aimed at figuring out “why” spouses engage in adulterous activity. But, in the divorce context in Mississippi, why a spouse commits adultery is not really all that important. When considering divorce on grounds of adultery in Mississippi, a person should know (1) the definition of “adultery” and (2) how to prove it.

Defining Adultery

Most people associate “cheating” with adultery. But, “cheating” is not necessarily always “adultery,” because “cheating” is subject to varying interpretations. To some, “cheating” may merely involve intimate conversation with, or thoughts about, another person, without any physical contact; while others think only physical, sexual contact with another person qualifies as “cheating.” Mississippi law adopts the latter in its definition of “adultery.” Mississippi law defines adultery as the “voluntary sexual intercourse on the part of either spouse with a person other than his or her own spouse.” Owen v. Gerity, 422 So. 2d 284, 287 (Miss. 1982) (emphasis added). Also, it does not matter how frequent, or infrequent, a spouse commits adultery. As the Mississippi Supreme Court has explained, “a one night stand does not make [] sexual misconduct any less adulterous.” Davis v. Davis, 832 So. 2d 492, 496 (Miss. 2002). So, adultery involves sexual intercourse with a third-person, and one instance of such conduct is enough to be characterized as adultery in Mississippi.
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As a Mississippi divorce and family law attorney, I advise my clients on both legal and non-legal issues on a daily basis. Through my professional experience and my personal interactions with married individuals, I have learned that maintaining a happy and satisfying marriage can be really challenging at times. Often, spouses will want some personal space and time alone to themselves apart from their significant other. And in extreme cases, spouses may physically separate during the marriage whereby one spouse moves out of the home and lives elsewhere. This separation between spouses could produce legal effects and consequences in Mississippi–one effect being a claim by one spouse for separate maintenance.

images.jpgSeparate maintenance is a court-made equitable, monetary remedy awarded by Mississippi courts in the event that spouses have separated and one spouse is financially dependent on the other. Lynch v. Lynch, 616 So. 2d 294, 296 (Miss. 1993). In other words, separate maintenance is not a statutory remedy enacted by the Mississippi state legislature. Instead, it is a concept developed by the courts over time that has become a fixture in Mississippi family law. In fact, the concept of separate maintenance stems from Mississippi’s public policy recognizing a husband’s continued duty to financially support his wife and family even during periods of spousal separation–especially when the wife is the non-earning spouse and children are involved. Gray v. Gray, 484 So. 2d 1032, 1033 (Miss. 1986). The underlying purpose behind this duty is “to provide, as nearly as may be possible, the same sort of normal support and maintenance for the wife . . . as she would have received in the home, if the parties had continued normal cohabitation . . . .” Germany v. Germany, 123 So. 3d 423, 429 (Miss. 2013). So, courts will award separate maintenance to allow the recipient spouse to maintain a standard of living that would have existed absent the spouses’ separation. In the end, Mississippi courts enforce this steadfast public policy and marital duty to support one’s spouse and family during marital separation through awards of separate maintenance.
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It may come as a surprise to some, but a divorcing spouse’s financial or ownership interest in a business may be classified as “marital property” by a court when dividing property in a divorce. As an equitable distribution state, Mississippi courts are required to divide marital assets fairly, or “equitably,” between divorcing spouses. Marital assets may include any economic or ownership interest in a business, especially such interests in a closely-held business. Closely-held businesses often include family businesses or other small businesses whereby a spouse is a sole proprietor, shareholder or stockholder, partner, or otherwise owns a financial or ownership interest in the business. Like any other property owned by a spouse in a divorce, in terms of property division, Mississippi courts first classify a spouse’s business interest as marital property, separate property, or a mixed asset (part marital, part separate property). valuation.jpg

A business interest acquired by a spouse during the marriage or purchased with marital funds may be considered marital property. MacDonald v. MacDonald, 698 So. 2d 1079, 1083-84 (Miss. 1997). For example, where a husband starts a new business, joins a partnership, or even buys stock in an already existing business during the marriage, the husband’s interest in any of those situations will likely be classified as marital property, and it may be subject to equitable distribution in a divorce. On the other hand, a business interest acquired and owned by a spouse prior to the marriage will generally be classified as separate property. In addition to business interests owned prior to the marriage, any business interest acquired by gift or inheritance during the marriage may be classified as separate property. McKissack v. McKissack, 45 So. 3d 716, 718 (Miss. Ct. App. 2010). But remember, even separate property–including gifts and inheritance–may be classified, or converted into, marital property if it is commingled or designated for familial use during the marriage. Lastly, a business interest may be classified as a mixed asset–a mixture of separate and marital property. The most common example of when a business interest may be classified as mixed property is where the business interest owned prior to the marriage (otherwise classified as separate property) appreciates–or gains financial value–during the marriage. As a result, the “[a]ppreciation of the value of any non-marital asset [separate property] may be taken into account to arrive at a fair division to the extent the non-titled spouse had made a contribution toward the appreciation of value” or where the owning-spouse’s efforts during the marriage caused or contributed to the business interest’s appreciated value. Carrow v. Carrow, 642 So.2d 901, 907 (Miss. 1994). In such a case, the appreciated value of a business interest can be calculated by subtracting the value of the business interest at the time of the marriage from its current value.
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