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Mississippi Marital Property Laws

Under Mississippi law, all property acquired during a marriage becomes marital property. Unlike most equitable distribution states, Mississippi does not have a statutory basis for determining which property is marital property. Instead, Mississippi courts rely on case law when dividing marital assets.

Nine states (California, Arizona, Nevada, Louisiana, Idaho, New Mexico, Washington, Texas, and Wisconsin) are community property states. In these states, spouses divide marital property 50/50 during a divorce. In Mississippi, property gets divided according to the equitable division factors defined in Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994).

Note: State laws are subject to change through the passage of new legislation, court rulings (including federal decisions), ballot initiatives, and other means. FindLaw strives to provide the most current information available. You should consult an attorney or conduct your own legal research to verify the state law(s) before making any legal decisions.

Marital Property vs. Separate Property

Every state has its own definition of marital and separate property. In Mississippi, marital property is all property acquired during the marriage. Mississippi family law presumes that a marriage is a joint effort and that all spouses' contributions belong equally to the marriage.

Marital property may include:

  • The marital home

  • Wages and income earned during the marriage

  • Pension plans and retirement accounts

  • Joint bank accounts and investment accounts

  • Appreciation of a spouse's separate property (such as real estate) due to contributions from both spouses

For instance, one spouse could own a house, which became the marital residence after the marriage. Even if the property were never retitled in both spouses' names, since both spouses lived there and increased the home's value, it would become marital property subject to equitable distribution.

Separate property, or non-marital property, is everything acquired before the marriage and anything gifted or inherited during the marriage. Some parts of a personal injury settlement may fall into separate property, and some may be marital property (Tramel v. Tramel, 740 So. 2d 286, 290 (Miss. 1999).

Commingling of assets occurs when property intended to be separate becomes part of the marital estate. For instance, if a bank account containing business profits is used to pay household expenses, it becomes part of the marital property.

Mississippi Marital Property Laws

During property division in a divorce case, the judge (or "chancellor" in a Mississippi court) begins by placing a fair market value on all marital property. The law does not require a 50/50 division of marital property, only a fair division. Once the valuation is complete, the judge considers factors from the Ferguson case when dividing assets, including:

  • The length of the marriage

  • Each spouse's contribution to the marriage and acquisition of the property

  • Each spouse's earning capacity and employability

  • The emotional value of the property

  • Issues of child custody or child support payments

  • Tax consequences to each spouse

  • Alimony or spousal support awards

Ownership and Custody of Property

The Mississippi Chancery Court can’t force a spouse to release a property deed to the other spouse during property distribution. Instead, the court can award "custody" of the property to one spouse while letting the other spouse retain ownership rights (Draper v. Draper, 627 So. 2d 302, 305 (Miss. 1993) (Internal cite omitted).

This award is often seen when one spouse has primary custody of minor children. The judge awards that spouse "custody and control" of the marital residence. The other spouse still has property rights and can have the property sold once the children are 18.

You can find more information on this topic in FindLaw's section on Divorce and Property.

Get Legal Advice From a Mississippi Divorce Lawyer

Mississippi divorce law is complicated since it relies on case law rather than statutes. Divorcing couples need help from a Mississippi divorce attorney to protect their property rights.

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