Category Archives: Property Division

Child Custody, Divorce, General Legal, Irreconcilable differences, Modifications, Opinion, Property Division, Visitation

Why is my Court Hearing Somewhere Else?

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Mississippi has 20 Chancery Court Districts and 49 Chancery Court Judges, but Mississippi has 82 counties.  Most Chancery Court Districts, therefore, include more than one county.

You file your case in your home county’s Chancery Clerk’s Office, most often.  This is the appropriate “jurisdiction.” One District has a first and second judicial district, being Hinds County.  Most districts, however, include more than one County.  In that instance you still file in your home county, but you may well see the judge, have Court, and otherwise be in another County for your case.

I have been asked and have heard litigants try to use this as an advantage.  Perhaps not having to testify at home, making witnesses have to drive, or having Court somewhere else will lead to a better result. It doesn’t.  It is the same Judge, the same facts and in most instance just 30-45 minutes this way or that way from the other Courthouse.

One thing to remember when having litigation in multiple counties is to be mindful where the Court file is.  It is the lawyer’s job to see that the Court file makes it to Court.  I have seen time and again someone forget the Court file and the Judge be unwilling to take action until it can be retrieved or recessed until another day when it can be obtained.

I was involved in a 10th District case, commonly thought of as Hattiesburg, but had actual Court hearings in 5 different counties throughout the pendency of the case.  In no particular order, we had a trial and motion hearings in 1) Forrest County, Hattiesburg; 2) Lamar County, Purvis; 3) Marion County; Columbia, a temporary hearing in 4) Pearl River County, Poplarville, and a motion for New Trial in 5) Perry County, New Augusta.  Each hearing had the same judge, attorneys and parties, but were in so many different places because that is where the Judge was the days we had court appearances.

Matthew Thompson is a Family Law attorney, with a statewide practice, and recommends you hire a lawyer either in the area of where your case is or a lawyer who practices in that area.

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms.

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Divorce, General Legal, Property Division

Your Granddad’s Clothes

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The Family Use Doctrine.
Under the “family use doctrine,” any separate property, owned by one party, but used extensively by a family is converted to a marital asset. See Stewart v. Stewart, 864 So.2d 934 (Miss. 2003); Hankins v. Hankins, 866 So.2d 508, 511-512 (Miss. Ct. App. 2004).  This means that your granddad’s clothes, or more importantly that Destin beach house you inherited, while initially separate property, can lose its separate status and be considered a marital asset by the Court.

How does this happen?  By showing “Proof of family use.“

For instance, if the parties were married on the beach in front of the beach house and honeymooned there. The parties both testified that they frequently stayed in the beach house and both parties’ family used the beach house throughout the marriage. The parties used the home on holidays; including Easters, Thanksgivings, Christmas, Birthdays and as a getaway.

Both parties made Contributions to the care and upkeep of the beach house during the marriage:

The spouse made considerable efforts and contributions to the beach house. She designed, picked out and arranged the majority of the furnishings and decor of this home. She helped in the maintenance and upkeep of this home by cleaning, cooking, vacuuming, mopping, doing dishes, laundry and the like. She and her family performed maintenance on the home, including lawn maintenance and general repair.  The husband also contributed to this home financially from joint accounts, in kind by his efforts during the marriage and he also otherwise cared for the property.

The Court can find that the beach house has lost its separate status due to family use and is a marital asset subject to equitable distribution.

So, just know that gifts, inheritance and otherwise separate assets, owned only by one party before the marriage, MAY lose their separate status if they are used throughout the marriage.

Matthew Thompson is a family law attorney in Mississippi and recommends that if you intend that your Granddad’s clothes, or beach house, not be subject to division by the Court in a divorce, either get a pre-nup or don’t use it. Tough advice, I know…

Follow the blog: BowTieLawyer 

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

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Divorce, Property Division

Taxing Divorce Issues

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Tax consequences must be considered when the Court determines Equitable Distribution, along with  other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;

This blog is one in a series of blogs regarding Equitable Distribution in Mississippi.  Equitable Distribution is the method employed by the Court’s to determine how marital property is to be divided in a divorce.  The basics and factors to be considered can be seen here, Marital Property; How it’s Divided (click).

  • Tax Consequences.

Typically division of real property and even personal property can be had without tax consequences to the parties.  One party can buy the other out of the house and get the furniture without arousing Uncle Sam.  However, certain transactions can create significant tax consequences.  Usually investment/retirement accounts may be transferred without tax liability, but there is a catch.  The receiving party must roll the monies over into a qualified account and not access same to avoid taxes and penalties.  If the receiving party will need the monies to live, then they better make sure the Court is aware of the tax consequences for using those monies.  (Alimony may also have tax consequences.)

  • Other economic consequences;

Other economic consequences can include the nature of the asset.  Is it something that can be used and liquidated like an account or is it something that cannot be easily turned into cash, like a house or a collection of 17th French dishware?  The Court may determine the type of assets.  Also, some assets produce income or returns and some assets may decrease in value or require considerable upkeep expenses like an Arabian Horse.

Make sure you have discussed the type and nature of the assets that the Court is being asked to divide and be sure to consider the tax and long-term considerations regarding the asset(s).

Matthew Thompson is a family law attorney in Mississippi and recommends you pass on getting the Arabian Horse, as it will eat you out of house and home.

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.

Divorce, General Legal, Property Division

Nice Assets!

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Two more factors considered in Equitable Distribution are the Value of the Marital Assets, as well as the Value of Separate Assets.

This blog is one in a series of blogs regarding Equitable Distribution in Mississippi.  Equitable Distribution is the method employed by the Court’s to determine how marital property is to be divided in a divorce.  The basics and factors to be considered can be seen here, Marital Property; How it’s Divided (click).
renjith krishnan/ freedigitalphotos.net
  • The market value and the emotional value of the assets subject to distribution.

Market value most commonly refers to “Fair Market Value” or the value a willing buyer, under no compulsion to buy, would pay a willing seller.  Assets subject to distribution means any and all assets accumulated during the course of the marriage due to the efforts of the parties.

For accounts and investments it is typically the value of those investments.  Your savings account has $7,650.00 in it = it’s worth $7,650.00.  Your home’s value would normally be determined by an appraisal.  There is also a fair amount of nuance that comes into play when determining the FMV of assets and the parties and their hired professionals can disagree on values.  Additionally, not everything is valued using FMV.  A business owned by a party in a divorce is valued using a “Net Asset” based approach, but that is an “exciting” blog for another day!

Emotional value or sentimental value is an intangible value or one that cannot be easily assessed.  Having made all of those disclaimers, the court considers emotional value when determining who gets what and if you really, really want that Hoosier cabinet you will probably get it, but she may end up with an offset for a portion of the value of the Hoosier.

  • The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;

Assets not ordinarily subject to equitable distribution are the non-marital assets.  These include assets acquired by inheritance, by gift (inter vivos just means a gift while living, as opposed to a gift via a will) or by efforts prior to the marriage.  So while these assets may very well be separate, the value is still relevant for divorce purposes.  Separate estate plays a role in dividing the assets and it also plays a role in the Court’s determination of alimony.  A significant separate estate may result in you getting less out of the marriage than someone similarly situated with no separate estate, but it’s still a good problem to have.

Matthew Thompson is a family law attorney in Mississippi and recommends you have your property appraised.

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.

Divorce, Marriage, Property Division

Don’t Spend Money on Your Girlfriend!

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Another factor considered in Equitable Distribution is the Degree to which each Spouse has Expended, Withdrawn or otherwise Disposed of Marital Assets and any prior distribution of such assets by agreement, decree or otherwise.  

(This blog is another in a series of blogs regarding Equitable Distribution in Mississippi.  Equitable Distribution is the method employed by the Court’s to determine how marital property is to be divided in a divorce.  The basics and factors to be considered can be seen here, Marital Property; How it’s Divided (click)).
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Expended, Withdrawn or Otherwise Disposed refers to multiple possibilities.  One of the most common is marital waste.  Marital waste is the wrongful or improper use of marital assets, though not necessarily illegal.  Marital waste is basically when marital monies are used for non-marital purposes.  Common examples include; monies spent on a paramour (boyfriend/girlfriend),  gambling losses, monies spent on an addiction like alcohol or drugs.  Bad investments may or may not be waste, it depends on the facts.  Selling a marital asset for significantly less than its value is.  So, if you have a Jeep worth $13,000 and sell it to your Uncle for $3,500, don’t assume you are in the clear.  The Court can “balance the equities” and you will be ordered to reimburse your spouse for the their value in the asset.

Prior distribution is just when the parties divide assets prior to getting into Court.  If the parties agree to a division of some assets the Court may not disturb it, but can certainly consider when dividing the remaining assets of the marital estate.

If you are married, Do Not spend money on your girlfriend/boyfriend.

Matthew Thompson is a family law attorney in Mississippi and advises his clients to not have boyfriends or girlfriends and if they do to not spend money on them. 

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Divorce, Marriage, Property Division

Mopping It Up in a Divorce

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The first factor considered in Equitable Distribution is Substantial Contribution to the Accumulation of the Property.   

(This blog is one in a series of blogs regarding Equitable Distribution in Mississippi.  Equitable Distribution is the method employed by the Court’s to determine how marital property is to be divided in a divorce.  The basics and factors to be considered can be seen here, Marital Property; How it’s Divided (click)).

Factors to be considered in determining contribution include;

    • Direct or indirect economic contribution to the acquisition of the property;

Direct contributions include earnings from your job and using that income to pay for the house, cars, investments, retirement contributions and paying down debt.  These “direct” contributions are attributable to the bread-winning spouse.

Indirect Contributions include child-rearing and homemaking efforts.  In fact,  the law considers domestic or household duties equivalent to working outside of the home.  So who cooked, cleaned,  did the dishes, laundry, yard upkeep, maintenance, and other similar tasks are relevant. Stay-at-home moms work!

    • Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage

Stability and Harmony of the Marriage concerns the parties’ conduct.  Marital fault and even conduct that may not rise to the level of marital fault are considered here.  The division of chores and the “roles” that the husband and wife played matter.  Also, length of the marriage is considered.

    • Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.

Contributions to Education and Training is most commonly seen when the “young couple” gets married and one spouse works while the other finishes their advanced degree and/or professional training.  Did the wife work and/or be the primary caregiver for the children while the husband finished Medical School and residency? Cliche’, but true.  Her efforts working, taking care of the young family allowed him to finish his education and training so he can earn a greater living.  The Court considers the value the wife contributed so that the husband’s earning capacity could be greater.

Matthew Thompson is a family law attorney in Mississippi and some of the above factors hit “close to home.” 

Follow the blog: BowTieLawyer 

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

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Divorce, Marriage, Property Division

Alimony, Palimony & Baloney

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Alimony is one of the least understood aspects of a divorce.  Alimony is a payment from one spouse (or ex-spouse) to the other, when a financial need exists.  This payment is to maintain the receiving spouse in the “manner in which they had grown accustomed” during the course of the marriage.  However, alimony is not a punishment to be awarded by the Court, nor is it an absolute in all situations.

Alimony is governed by the Court and the considerations are outlined in the case of Armstrong.  These Armstrong factors are considered and reviewed after the Court conducts Equitable Distribution (click), and only if the Court determines one party would be left with a deficit.  Then the Court considers the facts specific to your case and then a determination is made as to whether alimony is to be awarded, how  much, and how long it is to be paid.  The factors include;

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).

Within Alimony there are 3 basic types;

  1. Permanent (or Periodic)- Forever! Until death or remarraige, usually deductible and modifiable.
  2. Rehabilitative – limited in time and amount. May be subject to taxes and may be modified depending on specific language.
  3. Lump Sum – “Guaranteed” can be in one lump or in installments, non-modifiable and non-taxable.

A brief discussion of each “type” of alimony will be posted in the future and linked back to this article.

So what is Palimony?

  • Palimony– alimony when the parties lived together, but were not married. Can’t do it in Mississippi.

What about Baloney?

  • Baloney- A Spouse at fault can’t get Alimony? Not TRUE, it is possible. The Court will conduct an Armstrong Analysis.
  • A Husband can’t get alimony? Not TRUE, it is possible. It would be unconstitutional to discriminate based on gender.
  • Must be married for at least 10 years? Nope.  The longer the marriage the better, but it’s possible to get some types of alimony even in short marriages.

Matthew Thompson is a family law attorney in Mississippi.  Questions about Alimony? Call?  Questions about Baloney? Don’t.

Follow the blog: BowTieLawyer 

You may also contact Matthew with your family law case, question or concern at (601) 850-8000

Divorce, Property Division

Marital Property; How it’s Divided.

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“What’s yours is mine and what’s mine is mine.”

Sometimes splitting property in a divorce feels like this infamous quote!

Mississippi is an Equitable Distribution state, NOT a Community Property state.  The main difference is that Mississippi Court’s have discretion from requiring a 50/50 split in every circumstance.  In fact, Equitable Distribution means “fair, but not necessarily 50/50.”  I have previously touched on division of stuff in Fighting Over Furniture.

To determine what is fair, a number of factors are used called the Ferguson Factors.

“Therefore, this Court directs the chancery courts to evaluate the division of marital assets by the following guidelines and to support their decisions with findings of fact and conclusions of law for purposes of appellate review. Although this listing is not exclusive, this Court suggests the chancery courts consider the following guidelines, where applicable, when attempting to effect an equitable division of marital property:

  1. Substantial contribution to the accumulation of the property (Mopping it Up in a Divorce, click for explanation).  Factors to be considered in determining contribution are as follows:
      • Direct or indirect economic contribution to the acquisition of the property;  
      • Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
      • Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
  2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital asset(Marital Waste; Don’t Spend Money on Your Girlfriend). and any prior distribution of such assets by agreement, decree or otherwise.
  3. The market value and the emotional value of the assets(Sentimental Value can be Valuable)  subject to distribution.
  4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution (Sentimental Value can be Valuable), such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
  5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
  6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
  7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
  8. Any other factor which in equity should be considered.“

Ferguson v. Ferguson, 639 So.2d 291 (Miss. 1994).

In a series of future blogs a small discussion of each factor will be posted, and linked back to this post.  The first step is knowing these factors.  How the Court applies the specific facts of your situation to these factors determines who gets what.

Matthew Thompson is a family law attorney in Mississippi and wants you to end up with your Stuff!

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

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