Matthew Thompson www.BowTieLawyer.ms (601) 850-8000
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Matthew Thompson www.BowTieLawyer.ms (601) 850-8000
Tag Archives: property division
Your Granddad’s Clothes
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…
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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms
Don’t Spend Money on Your Girlfriend!
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)).
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.
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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms
Mopping It Up in a Divorce
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;
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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!
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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.
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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.”
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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms
Marital Property; How it’s Divided.
“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:
- 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:
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- 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.
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- 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.
- The market value and the emotional value of the assets(Sentimental Value can be Valuable) subject to distribution.
- 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;
- Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
- 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;
- The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
- 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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