Tuesday, September 22, 2015

Who Gets the House?

The marital home or residence is often the largest marital asset many families have.  Many times it is not reasonable, fair, or financially sound for one or either spouse to retain the marital home after divorce. And ultimately, it is up to the chancellor in the divorce proceeding to determine who gets what in a divorce, including who gets the house.  In Mississippi, chancellors have vast discretion in awarding certain marital property to either divorcing spouse. Johnson v. Johnson, 650 So. 2d 1281, 1288 (Miss. 1994) (citations omitted); Boykin v. Boykin, 445 So. 2d 538, 538-39 (Miss. 1984) (“there is no reason why a chancellor, under the broad discretion granted him, cannot in his decree award possession of the marital residence to either party.”). As it pertains to awarding the marital home to either spouse, chancellors generally consider the equitable distribution factors laid out in Ferguson and they also “consider all the awards to the payee[recipient] spouse and the concomitant burden placed upon the payor spouse.” Brooks v. Brooks, 652 So. 2d 1113, 1124 (Miss. 1995) (referring to Brendel v. Brendel, 566 So. 2d 1269 (Miss. 1990)); see generally Ferguson v. Ferguson, 639 So. 2d 921 (1994). Essentially, when awarding the marital home to either spouse, chancellors are charged with determining what is fair as well as assessing whether an award of the marital home to one spouse will place an unreasonable burden (usually an unreasonable financial burden) on the awarding spouse. Thus, if a spouse is going to fight to keep the marital home in a divorce, he or she should have a good reason to do so and should make sure that he or she can afford to keep the house.

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