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Division of Property

Generally, the parties to a divorce are free to agree on division of property. However, if they fail to agree, then the judge decides “who gets what.” For purposes of property distribution in divorce, Mississippi is neither a “title” state nor a “community property” state. Mississippi has “equitable distribution” where title to property is irrelevant and each spouse does not necessarily receive one half of the marital property. In Mississippi, equitable does not mean equal, it means fair.

There are a lot of complicated rules, but to keep it very simple, most property in the marriage will be marital. Separate property is that property which you get to keep from the other spouse — such as an inheritance or a gift to a single spouse.  Also, in some circumstances courts will classify property accumulated after the date of separation as separate property. However, the court has discretion to classify separate property that has been commingled with marital property as marital property and thus subject to equitable distribution in divorce.

Property gets valued for divorce purpose at fair market value. Courts use nine (9) factors to equitably distribute property.

Property Division in Mississippi is based on equitable distribution and is not a community property state. The Ferguson factors are applied by the Chancellors who have ultimate discretion in how property is divided. For a list of the Ferguson factors, please use this link. Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994)

The Hemsley Worksheet is used in some divorces when there is a need to identify property, its value and how and when the property was obtained. You can find a copy of the worksheet here

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