Q&A: SEPARATE MAINTENANCE IN MISSISSIPPI

Mississippi does not have a legal separation. Separate maintenance is an equitable remedy that may be awarded to a spouse that is financially dependent on the spouse that chooses to leave the marriage. Separate maintenance comes from the concept that even during separation that a husband had a duty to continue to financially support his spouse and family when the wife was a non-earning spouse. Today, separate maintenance can be awarded to a husband or a wife. Courts can award separate maintenance to allow the recipient spouse to be able to maintain the same standard of living prior to the spouse leaving the marriage. 

 Separate maintenance is often referred to as a judicial command for the leaving party to return to the marriage. The right to separate maintenance may be waived if the spouse seeking the spousal support substantially contributed to the separation of the parties. Thus, a spouse may defend against a claim for separate maintenance by asserting that the spouse seeking the relief is equally responsible for the separation of the parties.  

  A spouse must file a complaint in the Chancery Court seeking separate maintenance as relief.  A hearing will be held to determine if separate maintenance may be awarded.   During the hearing, the plaintiff must prove the separation, and that the separation was not his/her fault.  The defendant, opposing party, will then be permitted to present evidence to the court.  The burden shifts to the defendant to demonstrate that the parties are equally at fault for the separation, and that the plaintiff should not be awarded separate maintenance. 

The Mississippi Supreme Court has stated that the following factors must be considered in setting awards of separate maintenance: 

1. The health of the husband and the wife;

2. Their combined earning capacity;

3. The reasonable needs of the wife and children;

4. The necessary living expenses of the husband;

5. The fact that the wife has free use of the home and furnishings; and

6. Other such facts and circumstances.

 The Supreme Court has also stated that an award of separate maintenance should provide for the wife as if the couple were still cohabitating, the spousal support should not unduly deplete the husband’s estate.  

An award of separate maintenance will terminate upon one of the following events:

• Reconciliation of the marriage 
• Divorce of the parties 
• Death of either spouse 
• Payer make genuine offer to reconcile with the receiving spouse, and the receiving spouse refuses the offer to reconcile