Marital Versus Separate Property
Mississippi law differentiates between marital and separate property. Inheritances, gifts and property owned by a spouse before marriage are generally exempt from distribution in divorce. Everything else is marital and subject to division. Subsequent to the Hemsley and Ferguson decisions, it no longer matters whose name appears on an asset's title or deed; the court still treats the property as jointly owned. As in other states, it’s possible for a spouse to change the status of his separate property to marital property by commingling it with marital assets. When this occurs, the asset loses its immunity from equitable distribution.
“Ferguson factors” refer to the precedents set forth by the 1994 Ferguson decision. Before 1994, judges had the right to award the lion’s share of marital property to the spouse who earned more and who presumably contributed more toward its purchase. Following the Ferguson decision, Mississippi courts began to recognize labor contributions to a marriage with courts typically weighing household contributions and financial contributions equally when considering what efforts led to the acquisition of marital property. The Ferguson factors also negated the importance of which spouse holds title to a particular asset acquired during the marriage.
Mississippi judges consider other issues when making a division of marital property as well. If one spouse owns considerable separate property, a judge might determine that he, therefore, needs less than 50 percent of the couple’s marital property. Courts might also award one spouse more property in lieu of alimony or spousal support. If spouses don’t want a court to weigh all individual circumstances when deciding property issues, they can arrive at their own agreement through negotiations. Judges will usually honor any such agreement, unless it is grossly unfair to one spouse or the other. Mississippi law also recognizes prenuptial agreements and, as such, one spouse can waive an interest in marital property or the other's separate property if she chooses to do so.
Technically, Mississippi courts do not consider marital misconduct when dividing property. The law does not allow judges to make punitive awards, such as awarding additional property to the wronged spouse if the other abused her or committed adultery. However, judges can take certain types of misconduct into consideration such as a spouse squandering or wasting assets, or if a spouse deliberately transferred property out of the marital estate to avoid losing a portion of it through equitable distribution. In these cases, a judge may award some of that spouse's separate property to his partner to avoid having her pay for her partner's wrongdoing by receiving less property than she would have if he had not committed these acts.