Community Property Versus Equitable Distribution in Mississippi

There are many factors that will affect the outcome of your divorce, from the length of your marriage, each of your incomes, and the involvement of children.  One crucial factor, however, will play a large role in the outcome of the distribution of your marital assets.  That factor is where you divorceEach state has its own unique set of rules governing the division of assets during a divorce.  A court in Texas, for instance, will apply drastically different rules in allocating assets than a court in New York.  There are two main categories of rules for the distribution of assets used in states across the country: equitable distribution and community assets.  Here is a look at the two systems

Community Property in a Mississippi Divorce

Community property is the less common division of assets regime.  It is used in the following 9 states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.  In addition, couples in Alaska can opt in to a community property system.  The community property system derives from Spanish law, which accounts for its predominate presence in the southwestern states.

In a community property state, both spouses are considered equal owners of all marital property.  As a general rule, whatever each spouse earns or acquires during the marriage is co-owned by both parties, regardless of who earned it or whose name is on the title.  During a divorce, all assets are divided 50-50, with some state specific exceptions.  Judges do not take into account the age, health, or employment prospects of the parties in dividing assets.  However, these factors will be considered in determining alimony.  Community property states are known to have very generous alimony laws, to accommodate for the lack of individualization in the division of assets.

Equitable Distribution in a Mississippi Divorce

Equitable distribution is the most common system used for division of assets, embraced in the remaining 41 states not described above.  Mississippi is an equitable distribution state.  In an equitable distribution state, assets are allocated to each spouse on the basis for fairness.  Courts take into account the circumstances of the spouses and divide accordingly.  Some of the factors considered include:

  • The contributions of each party to the marital property
  • Time spent on family duties during the marriage
  • Contributions to the stability and harmony of the family
  • Duration of the marriage
  • Contributions to the education, training, or other accomplishment increasing the earning capacity of a spouse
  • A spouse’s disposal of marital assets
  • The market value as well as emotional value of the assets subject to distribution
  • The value of the assets not subject to distribution, such as inheritance
  • Tax consequences of proposed distribution
  • The needs of the parties for financial security

As is clear from these factors, equitable distribution does not always mean equal distribution.  Before the court can weigh the above factors, it must determine what the marital assets are.  Marital assets are those assets acquired through the efforts of one or both parties during the marriage.  Included in the marital asset definition is added value, as where a property acquired before the marriage increases in value during the marriage.  For instance, if one spouse had a home before the marriage and it increased in value $50,000, that increase in value would usually be considered a marital asset.

Comparing the two systems, you can see that the outcome of your divorce might vary significantly depending on whether you divorce in a community property or equitable distribution state.  You are not necessarily bound by the division of asset laws of your state, however.  You can create a pre or post-marital agreement that sets out the division of assets in the event of divorce.

Division of assets is often a highly contested area in any divorce.  An experienced divorce attorney can fully explain the equitable distribution laws in your state and assist you in obtaining the most favorable asset division possible.

Matthew S. Poole is an experienced Mississippi divorce attorney with years of experience in the realm of asset division.  He will fight tirelessly on your behalf to achieve the asset allocation you desire.  Call Matthew today at (601) 573-7429 to schedule a consultation.

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