MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary A

By: Representative Scott (80th)

AN ACT TO CODIFY SECTION 93-5-22, MISSISSIPPI CODE OF 1972, TO REQUIRE EQUITABLE DISTRIBUTION OF ASSETS ACQUIRED OR ACCUMULATED, AND DISTRIBUTION OF LIABILITIES INCURRED, DURING THE COURSE OF A MARRIAGE; TO PROVIDE EXCEPTIONS; TO CREATE A PRESUMPTION OF EQUAL DISTRIBUTION; TO PROVIDE FOR UNEQUAL DISTRIBUTION WHEN CERTAIN RELEVANT FACTORS EXIST; TO ENACT DEFINITIONS OF MARITAL AND NONMARITAL ASSETS AND LIABILITIES; TO MAKE CERTAIN PROVISIONS CONCERNING LUMP SUM ALIMONY; TO PROVIDE THAT THE COURT'S ORDER OF DISTRIBUTION OF ASSETS SHALL HAVE THE EFFECT OF A CONVEYANCE; TO PROTECT THE RIGHTS OF THIRD PARTIES; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following provision shall be codified as Section 93-5-22, Mississippi Code of 1972:

93-5-22. (1) As used in this section:

(a) "Marital assets and liabilities" are those assets and liabilities which are not nonmarital and include:

(i) Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them;

(ii) The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both;

(iii) Interspousal gifts during the marriage; and

(iv) All vested benefits, rights and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation and insurance plans and programs.

(b) "Nonmarital assets and liabilities" include:

(i) Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities; (ii) Assets acquired separately by either party by noninterspousal gift, bequest, devise or descent, and assets acquired in exchange for such assets;

(iii) The enhancement in value and appreciation of nonmarital assets which is not brought about by the efforts of either party during the term of the marriage;

(iv) All income derived from nonmarital assets during the marriage, except to the extent that the income was treated, used or relied upon by the parties as a marital asset;

(v) Any real property held by the parties in joint tenancy, co-tenancy or tenancy by the entirety acquired prior to the marriage shall be presumed to be a nonmarital asset; and

(vi) Assets and liabilities excluded from marital assets and liabilities by written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities.

(2) In a proceeding for divorce from the bonds of matrimony, in addition to all other remedies available to a court to do equity between the parties, the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court shall begin with the presumption that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker;

(b) The economic circumstances of the parties;

(c) The duration of the marriage;

(d) Any interruption of personal careers or educational opportunities of either party;

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse;

(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party;

(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties;

(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home;

(i) The intentional dissipation, waste, depletion or destruction of marital assets after the filing of the complaint or within two (2) years prior to the filing of the complaint;

(j) The tax consequences of the property division upon the respective awards to be made to each spouse;

(k) Any other factors necessary to do equity and justice between the parties.

(3) If the court awards any cash payment for the purpose of equitable distribution of marital assets, to be paid in full or in installments, the full amount ordered shall vest when the judgment is awarded and the award shall not terminate upon remarriage or death of either party, unless otherwise agreed to by the parties, but shall be treated as a debt owed from the obligor or the obligor's estate to the obligee or the obligee's estate, unless otherwise agreed to by the parties.

(4) In any contested divorce action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (2) of this section. The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:

(a) Clear identification of nonmarital assets and ownership interests;

(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;

(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;

(d) Any other findings necessary to advise the parties or the reviewing court of the trial court's rationale for the distribution of marital assets and allocation of liabilities.

(5) A spouse to whom a liability has been assigned by order of the court shall be responsible for making all payments on a timely basis. Upon failure to do so, the other spouse may make the required payments if legally obligated to do so or to protect property awarded to the other spouse which secures the obligation. Any payments so made may be recovered from the defaulting spouse with interest at the legal rate plus reasonable attorney's fees or may be set off against payments, other than child support, due the defaulting spouse.

(6) (a) The order distributing assets shall have the effect of a duly executed instrument of conveyance, transfer, release or acquisition which is recorded in the county where the land is located when the final order, or a certified copy of the final order, is properly recorded in the official land records of the county in which the land is located.

(b) If an appeal has been taken from the final order of the trial court, a certified copy of the appellate court's mandate affirming the transaction shall be attached to the order of the trial court at the time of recording. With respect to personal property, the final order of the trial court shall be effective as a bill of sale and, in the case of a titled motor vehicle, as an assignment of title by the registered owner of the vehicle.

(c) For all purposes of this section, the final order of the trial court shall not affect title to property, real or personal, until the time for all appeals has expired or, if an appeal is taken, the appellate court has issued its mandate affirming the transfer of title.

(7) Filing of a joint tax return shall not constitute nonmarital assets or liabilities as marital assets or liabilities.

(8) The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a complaint for divorce from the bonds of matrimony. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge's discretion, the circumstances require.

(9) All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are nonmarital assets and liabilities. The presumption is only for evidentiary purposes in the divorce proceeding and does not vest title. Title to disputed assets, as between spouses, shall vest only by the order of a court. This section does not require the joinder of spouses in the conveyance, transfer, encumbrance or hypothecation of a spouse's individual property, affect the laws of descent and distribution, affect the laws concerning child support nor establish community property in this state.

(10) The court may provide for equitable distribution of the marital assets and liabilities without regard to alimony for either party. After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether any alimony shall be ordered.

(11) To do equity between the parties, the court shall take into account any evidence as to the taxation consequences of its order and may, in lieu of or to supplement, facilitate or effectuate the equitable division of marital assets and liabilities, order a monetary payment in a lump sum or in installments paid over a fixed period of time.

(12) With respect to real property, the provisions of this section shall not affect the rights and interests of bona fide purchasers and encumbrances for value without notice, and the filing of the complaint for divorce in the county where the land is located shall constitute constructive notice. Neither shall the provisions of this section affect the rights of persons who are not parties to the divorce proceeding pursuant to contracts, promissory notes, security agreements, mortgages and deeds of trust or other undertakings made in good faith and without intent to impair the rights of either spouse under this section.

SECTION 2. This act shall take effect and be in force from and after its passage.