August 15, 2012 § Leave a comment

From the earliest days after the Ferguson case established equitable distribution as the law for division of marital estates in Mississippi, the rule has been that the division need not be equal, but it must be equitable. See, e.g., Wells v. Wells, 800 So.2d 1239, 1243-44 (Miss.App. 2001).

Over the years the concept of equitable distribution evolved at the trial court level into a concept of equal division, so that lawyers quit pushing the argument that their clients were entitled to a larger slice of the marital asset pie. But there are cases where lawyers have succeeded on the point, and you might find them helpful in your own practice.

Several cases in the past year or so offer some authority you might find helpful in achieving an unequal division:

  • Cox v. Cox, 61 So.3d 927 (Miss.App. 2011). This is a case where the presumption that the wife’s “homemaker” indirect contribution to the accumulation of marital assets was rebutted by the proof. The chancellor’s award of 25% of the marital estate to the wife was upheld where the husband had made most of the direct financial contribution to acquisition of the marital assets, and she did not contribute to the husband’s business. The husband also paid the wife’s pre-marital debt, funded a business venture of hers that failed, and he paid for her to take courses in school and to otain a real estate license. The husband also paid to provide household assistance in the form of a domestic and yard help. This is one of those rare cases where the homemaker presumption was rebutted, but it reminds us that although the presumption mandates a rebuttable finding of equal contribution, it does not mandate an equal division.  
  • Powell v. Powell, 87 So.3d 495 (Miss.App. 2011), decided November 11, 2011, is a case we’ve discussed here before. In this case the disabled husband was awarded a greater share of the marital estate based on his greater contribution to the accumulation of wealth, wife’s greater draw during the marriage from the family business, and wife’s marital misconduct. A significant feature of this case is that the COA upheld the chancellor’s findings as to valuation despite scant evidence offered by either party on the point.
  • Kimbrough v. Kimbrough, 76 So.3d 715 (Miss.App. 2011). In this Ittawamba County case, the chancellor awarded wife 24% of the marital estate. The unequal distribution resulted from the husband being awawded $166,000 in equity in the former marital residence versus the award of $4,400 in equity to the wife. The disparity was due to the fact that the home was husband’s debt-free, pre-marital asset, and the only contribution wife had made to the value was her payments against a home improvement loan. The court observed that “We do not look at the division of one asset in isolation” (at ¶19). [An interesting side note: the court’s opinion cites another case for a quite lopsided division: “See Redd v. Redd, 774 So.2d 492, 496 (¶ 15) (Miss.Ct.App.2000) (reversing on other grounds but stating that a 77% to 23% division of the marital property, standing alone, would not have been a ground for reversal).”]
  • Allgood v. Allgood, 62 So.3d 443 (Miss.App. 2011), was a case in which the chancellor awarded husband 65% of the marital assets. As in Kimbrough, the unequal division stemmed from an unequal division of the equity in the former marital residence. Husband’s share of the marital estate was enhanced by $82,000 he had contributed to the home’s equity. As the court pointed out, although a party’s commingling of separate funds may transform their character into a marital asset, the trial court may nonetheless adjust the equities and award a greater share of the aset value to the party who made the contribution of separate funds.  
  • Jenkins v. Jenkins, 67 so.3d 5 (Miss.App. 2011). In this case wife was awarded a smaller percentage of the parties’ assets. The trial court considered contributions and expenditures of each spouse to the seven-year marriage, and that husband owned the bulk of the marital assets prior to the marriage and expended pre-marital earnings on improvements to the property during the marriage, and it was wife’s addiction to prescription medications that caused marital separation. Most of the wife’s share of the marital estate consisted of her retirement account. At the time of the divorce she was unemployed, with an application for Social Security disability payments pending.
  • Bond v. Bond, 69 So.3d 771 (Miss.App. 2011). This is my favorite case of the bunch, and one I’ve posted about here before. The appeal was actually filed by the husband, complaining that the chancellor was too generous in awarding the adulterous wife ten percent — you read that right, 10% — of the marital assets. He thought she should have received naught. Judge Maxwell’s exposition on marital fault and its role in equitable distribution is something you should read and digest. I am still scratching my head over why Mr. Bond filed an appeal in this case.  

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