Property division is a four-step process. First, property must be identified as separate property (belonging to only one spouse) or marital property (belonging to the couple). That, in itself can and will be the subject of another post one day.

The next step is to value the assets. This is done through evidence the parties present. Often, it may be only their opinion as to what an item is worth, but it is not uncommon to hire experts to valuate high-end goods, businesses, and certain collections.

The judge must then divide the property equitably. Note that the doctrine is equitable distribution, not equal. Although an equal distribution make be equitable, the judge will decide what is fair and equitable given the factors I will discuss below.

Finally, the judge is to award alimony, if needed, following the distribution of assets.

The Mississippi Supreme Court officially adopted equitable distribution as the method to divide marital property in Ferguson v. Ferguson. In that case, the court identified eight factors for the judge to consider when the issue of property division is before him:

1. which spouse made a substantial contribution to property accumulation;
2. spousal use or disposition of assets and any agreement of distribution;
3. the market and emotional value of the assets;
4. value of each spouse’s separate estate;
5. tax consequences and legal consequences to third parties;
6. extent to which property division can eliminate the need for alimony;
7. needs of each spouse; and
8. other factors that should be considered in equity.

“But, wait!” you say. “Where’s fault?”

It’s not there. At least, it’s not named there. It can be considered, though, if the judge thinks it should be considered. That last factor gives the judge the “wiggle room” to do that. In my opinion, most judges do consider it

Judge Larry Primeaux has many excellent posts on equitable distribution at his blog. I recommend you look at some of his posts to get a judge’s view of the topic.

(Photo credit: SantiMB)