Tag Archives: equitable distribution

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.