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Divorce / August 01, 2017

Property Division: The Difference Between Separate and Marital Property

If a Mississippi divorce is in your future then get ready to hear an awful lot about separate and marital property. These legal terms will become very important to you as divorce courts in Mississippi only distribute marital property while separate property, on the other hand, remains with the spouse who owns it. Most people who haven’t gone through a divorce are unfamiliar with these terms and their significance so the aim of this article is simply to familiarize you with these legal terms and explain how separate property can be transformed into marital property under some circumstances. However, before you read on please note that divorce laws are state specific and that this article has been written in accordance with the current law in Mississippi.

Defining Separate and Marital Property

Before a Mississippi court can distribute a divorcing couple’s property, everything that the spouses’ own must be classified as either “separate property” or “marital property”. Although labeling a particular asset as either separate or marital property is often of the most hotly contested issues in a divorce case, defining these two categories is not hard.

Marital Property: In Mississippi there is a presumption that all property acquired or accumulated during the course of the couple’s marriage is marital property. Hemsley v. Hemsley. However, under some circumstances this presumption can be overcome. For example, an inheritance or a gift that is specifically left to one spouse during the course of the couple’s marriage (and that is not commingled with marital property or used for the family) can often overcome the presumption of being marital property and instead be classified as the separate property of the receiving spouse. Additionally, Mississippi courts are often willing to classify particular assets as separate property if the couple has a valid prenuptial or postnuptial agreement stating that such property is to be treated as separate in the event of a divorce.

Separate Property: Property that is attributable to one spouse’s separate estate prior to or outside of marriage is generally considered to be the separate property of that spouse in Mississippi. Craft v. Craft. However, be aware that Mississippi divorce courts will sometimes choose to classify separate property as marital property under some circumstances. This generally happens when the separate property was commingled with marital property or the separate property was used during the marriage to benefit the family.

Commingled Assets and Familial Use Assets

As noted above, these are some circumstances under which a Mississippi court can treat separate property as marital property. This most frequently happens with commingled assets and familial use assets.

Commingled Assets: Separate property is often treated as marital property if during the course of the marriage it was commingled with marital assets. This commonly happens when one spouse receives an inheritance check (which is that spouse’s separate property) during the course of the marriage and chooses to deposit that check into a bank account that they jointly share with their spouse. If that account contains marital assets (for example wages that one or both spouses earned during the marriage) then the inheritance funds can no longer be distinguished from the marital funds and will likely be treated as marital property in the event of a divorce.

Familial Use Assets: When a spouse’s separate property is used to benefit the family during the course of the couple’s marriage then that asset will sometimes be treated as marital property in the event of a divorce. For example, if a man purchased a home before getting married and then raised his family in that home during the course of his marriage a Mississippi divorce court may treat the house as marital property when the couple divorces despite the fact that the home was the man’s separate property when he got married.

Contact Us for Help Today

Property distribution during a divorce is complicated, so make sure that you retain an experienced asset and debt division attorney who is prepared to fight for what is yours. The experienced family law attorneys of Derek L. Hall, PC, The Heavy Hitter would be happy to fight for you. To schedule a free initial consultation contact our Jackson office today at (601) 768-8057.


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