In a Mississippi, who owns property acquired during the pendency of the divorce?
Property bought during a separation—who owns it?
As a Mississippi divorce attorney, I get a fair amount of questions concerning property ownership. An example is this one. If my husband and I separate and file for divorce, does my husband have a legal right to any property I buy after we separate but before the divorce is finalized?
Normally, all assets acquired during the marriage are presumed to be marital property. Given there is no such thing as a legal separation in Mississippi, any property acquired from the date of marriage until the date of divorce is presumed to be martial property. There is one exception. In Godwin v. Godwin, the Mississippi Supreme Court held that:
“Assets acquired after an order of separate maintenance should be considered the separate property of the parties, absent a showing of either (1) contribution to the acquisition of the asset by the other spouse … or (2) acquisition of the asset through the use of marital property.”
Godwin v. Godwin, 758 So.2d 384, 386 (Miss. 1999). In Godwin, a separate maintenance order was entered in 1987. The spouses lived apart until 1994 when the wife finally filed for divorce. After the separation order, but before the divorce, the husband contributed money to a Deferred Compensation Plan. The chancellor failed to award the wife part of the Deferred Compensation Plan and she appealed. The Mississippi Supreme Court affirmed the chancellor’s ruling that the Deferred Compensation Plan was the husband’s separate property.
Since Godwin, the key factor is whether the court entered a separate maintenance order. The order gives the court a line of demarcation to characterize after-acquired property. If a separate maintenance order is entered, then after-acquired property is presumed the separate property of that party unless the other spouse can prove he/she contributed to acquiring the property or martial property was used to acquire the asset.
