The issue of equitable distribution often arises in divorce. This is simply dealing with division of property, assets and money. Many clients often inquire as to their rights to real property, personal property, bank accounts, retirement accounts, and the list goes on. The law as it relates to equitable distribution in Mississippi still uses an analysis known as the “Ferguson Factors”. These factors come from the case Ferguson vs. Ferguson, 639 So.2d 921, 928-9 (Miss. 1994). The Supreme Court of Mississippi established factors that a Chancellor must follow in making a determination of equitable distribution. In the Ferguson case, the Court also provided a four step analysis for trial Courts to follow when dividing property. These steps are as follows:
- Classify the Assets as marital or separate
- Establish a value of each asset;
- Divide marital property equitably;
- award alimony if necessary subsequent to division of assets.
CLASSIFICATION OF ASSETS
Hemsley v. Hemsley, 639 So.2d 909 (Miss 1994), established a presumption that any property acquired during a marriage is marital property. Any claim otherwise must be proven by that party making the claim that the property is separate property and not marital. According to Deborah H. Bell, in her book Mississippi Family Law, Second Edition (2011 Nautilus Publishing), “a party seeking to separate classification must prove that an aset was owned before marriage, was acquired with separarte funds, was a gift or inheritance or was property excluded by valid agreement. Even then, a separate asset commingled with marital property or used extensively by the family may become marital. In addition, if the value of separate property has appreciated through a spouse’s efforts, the appreciated value will be marital.” (Bell at p. 133).
ESTABLISH A VALUE
Often I have seen parties reaching an agreement as to valuation of certain property. Usually this occurs via an appraisal on real property, in financial statements or by some sort of stipulation. If parties are unable to agree on a valuation, it is the Chancellor’s job as fact finder to determine a value based on testimony of the parties as well as any expert designated by either party. This is also where your 8.05 financial forms come into play. 8.05 financial forms have a very important role in a divorce. They should be discussed often with your attorney. The hard and fast rule of valuation is that Court’s typically use fair market value of an item or piece of property.
DIVIDE THE PROPERTY
This is where the Ferguson factors are analyzed by the Court. The factors are as follows:
(1) contribution to the accumulation of property;
(2) dissipation of assets;
(3) the market or emotional value of assets subject to distribution;
(4) the value of assets not subject to distribution;
(5) the tax and economic consequences of the distribution;
(6) the extent to which property division may eliminate the need for alimony;
(7) the financial security needs of the parties; and
(8) any other factor that in equity should be considered.
There will be more discussion regarding alimony in another post. However, generally, if a party is left with a deficit after an equitable distribution analysis by the Court, then the Court will consider alimony payments to that party as a means of making up for the lack of property / value received via division of property.
In order for the Court to divide a retirement accounts / 401Ks, the Court must value the account, classify and separate the marital portions of the benefit, divide the marital portion equitably between the parties, and then decide whether the non-employee spouse’s share should be distributed immediately or deferred until retirement. (See Debbie Bell at p. 199)