Separate Property and Family Use

October 29, 2014 § 2 Comments

It’s no secret that family use of an asset during the marriage can convert it from separate property to marital property.

Steve Cupp tried to argue that his Lake Cormorant house was separate property, not subject to equitable distribution, because: (1) he acquired the property before his ten-month marriage to his wife, Jenny; (2) he titled it in his sole name; (3) he made all of the mortgage payments from his separate account; and (did I already mention this?) (4) he and Jenny lived together only ten months before they separated.

The chancellor agreed with Jenny that family use had converted the property from separate to marital, and included it in the equitable distribution. Steve appealed.

The COA affirmed in Cupp v. Cupp, handed down October 8, 2013. Judge Maxwell’s opinion explained:

¶16. We first address Steve’s argument that the chancellor erred in classifying the Lake Cormorant property as marital, and, therefore, the property should not have been included in the division of marital assets. Steve asserts that because he acquired the property prior to the marriage, titled the property solely in his name, and made mortgage payments from his separate account, that the property is not marital in nature. Jenny counters Steve’s claims by noting that she lived in the home with her son and Steve before Steve moved to Sevierville. At that time, Jenny contributed domestically to all maintenance on the home for a number of months until she joined Steve in Sevierville.

¶17. Mississippi employs the family-use doctrine when determining whether a couple’s separate property has become marital due to the family’s use of the property. See, e.g., Stewart v. Stewart, 864 So. 2d 934, 937-38 (¶13) (Miss. 2003); Rhodes v. Rhodes, 52 So. 3d 430, 438 (¶¶25-26) (Miss. Ct. App. 2011); Brame v. Brame, 98-CA-00502-COA (¶20) (Miss. Ct. App. Mar. 28, 2000), rev’d in part on other grounds, 796 So. 2d 970 (Miss. 2001). Property that was acquired prior to the marriage by one of the parties can become marital property when used by the family. See id. Furthermore, a party’s contribution to the maintenance of a family home, whether monetary or physical, is considered when dividing the home equitably. See, e.g., Ferguson, 639 So. 2d at 928; Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994); Tatum v. Tatum, 54 So. 3d 855, 861 (¶21) (Miss. Ct. App. 2010).

It seems to me that the only way to avoid having property succumb to the family use doctrine is to do everything that Steve did here, except to allow his wife to set foot on the property. Ever. He should have kept it padlocked and given her a letter informing her that if she entered the property she would be prosecuted for trespass.

Of course, I am being facetious. But only in part. What else must one do to keep property separate? It seems that the so-called family-use doctrine can have a decidedly un-family-friendly whipsaw to it. Imagine telling your wife she can’t set foot on your lake property because you want to keep it separate. Imagine telling your child that you can’t take her fishing there because it’s separate. Imagine telling your musically-gifted son he can not practice on the grand piano you keep locked up in a warehouse because you promised grandma that you would keep it in the family.

In my opinion, it would be better to say in a case like this that it is separate property, the value of which causes a disparity in the financial situations of the parties, opening the possibility for time-limited alimony for Jenny.

¶18. The record reflects that the chancellor determined that the property in question was converted to a marital asset by means of the family-use doctrine. The chancellor also noted “that while [Steve] made the primary financial contributions to the accumulation of marital assets, [Jenny] made significant domestic contributions to the marriage.” We agree. Steve, Jenny, and Jenny’s son all lived in the home for some time prior to their move to Sevierville. Jenny also physically maintained the home by herself for several months after Steve moved. We cannot find manifest error in the chancellor’s determination that the Lake Cormorant property was part of the marital estate. This issue is meritless.

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§ 2 Responses to Separate Property and Family Use

  • thusbloggedanderson says:

    Two thoughts. One, marriage is about sharing, and the family-use rule properly reflects that.

    Two, if for some reason the owner thought his marriage shaky enough that he didn’t want his lake house to become family-use, he should’ve leased it out. That keeps his wife (and him) off the property and preserves it. Or, as Bob says, get a pre-nup.

  • Bob Wolford says:

    Sounds like a step closer to community property. Another way to avoid this disastrous outcome is possibly through the use of a pre-nup, I suppose.

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