Step 5: Apply the Ferguson Analysis

The next step is to apply the Ferguson analysis. “Ferguson” refers to an important case decided by the Mississippi Supreme Court in 1994, Ferguson v. Ferguson. In that case, the Court told judges that when they divide property in divorce, they must consider what we now call the Ferguson factors. We will list them in a moment, but they won’t make much sense without some context.

We have already outlined the first four steps. If they’ve been done correctly, in most cases we will have a chart that lists the marital property (assets and debts) with values for each item listed.

In Step Six, the judge will use this chart to make sure that he has divided all of the assets, that he has not awarded non-marital property to the wrong spouse, and that the relative distribution of value of the total amount awarded is fair to both spouses.

Fair can mean an equal, 50-50 split, but one can easily imagine a case when a 50-50 split would be decidedly unfair. Trouble is, if you’re the Supreme Court, how can you make rules that cover every possible way in which a spouse could justify dividing assets unfairly? It hardly seems possible to imagine every possible scenario that might be presented to a divorce judge, much less make rules in advance for how the judge should rule. How exactly is a judge to draw the line between a fair and unfair division of assets?

In Mississippi, the answer is to address a list of issues to consider. These are not so much questions that must be answered, as concepts that ought to be taken into account. What are the parties’ relative contributions to create the wealth that is to be divided? Who has already put money in their pocket (or their paramour’s pocket, or the casino’s pocket)? What about taxes? Should alimony change the division? The idea is that if the judge considers the “big issues,” as set forth in Ferguson, he is less likely to divide the assets unfairly.

When working with your lawyer to advocate for a particular division of assets, the important thing is to tailor the trial presentation to illustrate why a proper consideration of the Ferguson factors leads toward your recommended division and away from your opponent’s.

The Ferguson Factors

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:

a. Direct or indirect economic contribution to the acquisition of the property;

b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties, and duration of the marriage; and

c. Contribution to the education, training, or other accomplishment bearing on the earning power of the spouse accumulating the assets.

2. The degree to which each spouse has expended, withdrawn, or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree, or otherwise.

3. The market value and the emotional value of the assets subject to distribution.

4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;

5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;

6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;

7. The needs of the parties for financial security with due regard to the combination of assets, income, and earning capacity; and,

8. Any other factor which in equity should be considered.

Presumption of Equal Contribution

Look at the very first Ferguson factor, which refers to direct and indirect contributions to the acquisition of property. What does that mean?

A direct contribution is simple enough. If you go to work, earn a paycheck, and use the money to buy something, you directly contributed to the acquisition of whatever it was that you bought.

A husband who goes to work every day, earns a salary, and is the family breadwinner is making direct contributions to the accumulation of the family’s wealth. Does that mean that the stay-at-home mom is making no contributions?

Yes and no. A housewife who is not earning an income is probably not making direct contributions. But she likely is making indirect contributions, by raising the children, managing the household, and taking charge of the domestic sphere of the family, which allows the husband to devote his time to his job. He directly contributes to the wealth of the family; she indirectly contributes to the wealth of the family.

The wife’s indirect contributions are presumed to be equivalent in value to the husband’s direct contributions. This makes it difficult for the husband to convince the judge that the wife’s contributions have only the value of a maid or of a nanny.

However, the presumption that “direct and indirect contributions have equal value” is not absolute. It can be rebutted, for example, by proof that one spouse works (whether at home or at work) while the other spouse is lazy, doesn’t do anything, and isn’t making any contributions to the family, whether directly or indirectly.

Other Things To Consider

Up until now we have described the process of dividing assets in terms of an orderly process leading to a predictable outcome. What follows are not so much concrete rules as general rules of thumb that are often, but not universally, applied during the Ferguson analysis.

Your separate assets will not be awarded to the other side. This is a hard and fast rule, but there are a couple of caveats. One, the judge might decide that since you will receive all of your separate property assets, then your spouse should receive substantially more of the marital property assets, as a sort of compensation for not getting any of your separate property. Two, the judge might award alimony that you can only finance by selling off your separate property. Under both scenarios, the judge has not given your separate property assets to your ex, but it might feel that way.

Just because the marital property is divided equitably does not mean that it will be divided equally. In most cases, the judge begins with a 50-50 split, but there are predictable fact patterns that can influence the judge to award more than 50 percent to one side or the other. An (incomplete) list of those patterns would include:

• One spouse has significantly more financial need than the other, particularly where the problem cannot be fixed through alimony.

• Dividing assets unequally will eliminate the need to award of alimony.

• One spouse is clearly and egregiously at fault in the breakup of the marriage. The role that fault plays in the distribution of assets is unpredictable. The law in Mississippi clearly says that a judge should not punish a spouse for their adultery, substance abuse, etc. However, the law also says that “marital fault” is something that a judge should consider in dividing assets, which can mean that the fault moves the needle away from a strict 50-50 split of assets.

• A spouse has thrown money away for no good reason (such as gambling or money spent on a paramour). The judge can award that amount from remaining assets to the innocent spouse before dividing the remaining assets.

• A spouse has done very little to benefit the marriage. By “very little,” we mean not only refusing to work outside of the home, but also has not helped at home, has ignored household duties, has not helped raise the children, and so forth. The less the spouse did, the more likely the judge will award the other spouse more than 50 percent of the assets. In effect, this is the opposite of the Presumption of Equal Contribution discussed above.