If You Separate, You May Have To Compensate: Separate Maintenance in Mississippi

As a Mississippi divorce and family law attorney, I advise my clients on both legal and non-legal issues on a daily basis. Through my professional experience and my personal interactions with married individuals, I have learned that maintaining a happy and satisfying marriage can be really challenging at times. Often, spouses will want some personal space and time alone to themselves apart from their significant other. And in extreme cases, spouses may physically separate during the marriage whereby one spouse moves out of the home and lives elsewhere. This separation between spouses could produce legal effects and consequences in Mississippi–one effect being a claim by one spouse for separate maintenance.

images.jpgSeparate maintenance is a court-made equitable, monetary remedy awarded by Mississippi courts in the event that spouses have separated and one spouse is financially dependent on the other. Lynch v. Lynch, 616 So. 2d 294, 296 (Miss. 1993). In other words, separate maintenance is not a statutory remedy enacted by the Mississippi state legislature. Instead, it is a concept developed by the courts over time that has become a fixture in Mississippi family law. In fact, the concept of separate maintenance stems from Mississippi’s public policy recognizing a husband’s continued duty to financially support his wife and family even during periods of spousal separation–especially when the wife is the non-earning spouse and children are involved. Gray v. Gray, 484 So. 2d 1032, 1033 (Miss. 1986). The underlying purpose behind this duty is “to provide, as nearly as may be possible, the same sort of normal support and maintenance for the wife . . . as she would have received in the home, if the parties had continued normal cohabitation . . . .” Germany v. Germany, 123 So. 3d 423, 429 (Miss. 2013). So, courts will award separate maintenance to allow the recipient spouse to maintain a standard of living that would have existed absent the spouses’ separation. In the end, Mississippi courts enforce this steadfast public policy and marital duty to support one’s spouse and family during marital separation through awards of separate maintenance.

To be clear, either spouse–husband or wife–may seek separate maintenance from the other spouse. But typically, separate maintenance is awarded to a non-earning, stay-at-home wife. Further, a spouse’s right to separate maintenance, or receipt of separate maintenance, does not have any relevant effect on the spouse’s right to spousal support/alimony, child support, or any other rights stemming from divorce. For instance, the Mississippi Supreme Court has held that separate maintenance should not include an amount for child support because child support is a separate and distinct obligation of the father owed to the children, not the other spouse. Robinson v. Robinson, 554 So. 2d 300, 305 (Miss. 1989). Thus, separate maintenance is an obligation owed to other spouse and is a distinct remedy available in situations where spouses have separated during the marriage–it is not a post-marital/divorce obligation such as alimony.

Moreover, a spouse’s right to separate maintenance is not affected by a pending divorce. Separate maintenance may be awarded in cases where spouses physically separate and live apart while seeking or awaiting divorce. However, the right to separate maintenance may be waived by the spouse seeking it if he or she substantially contributes to the separation or breakup of the marriage. For example, in Robinson, the parties separated, the husband moved out, and the wife filed suit for separate maintenance against her husband. The Mississippi Supreme Court found that the wife’s “conduct materially contributed to the separation because of the psychological makeup of her husband; thus, the wife [] was not without fault.” Id. at 304. As a result, the Court affirmed the lower court’s holding that the wife was not entitled to separate maintenance. Id. Thus, a spouse may defend against a separate maintenance suit by asserting that the spouse seeking separate maintenance equally caused the parties to separate. King v. King, 152 So. 2d 889, 891 (1963) (quoting Defenses Available to Husband in Civil Suit by Wife for Support, 10 A.L.R. 2d 466, 479 (1950)) (“While the law does not require a wife who leaves her husband to be blameless, misconduct on her part which materially contributes to the separation, so that it may be said that the fault of the wife is equal to or greater than that of the husband, or that his fault was not sufficient to justify her leaving the domicile, is a defense to her suit for separate maintenance.”).

In any event, to receive separate maintenance in Mississippi, a plaintiff-spouse must file a complaint in chancery court and specifically request separate maintenance as relief. Once the defendant-spouse is served with a copy of the plaintiff’s complaint for separate maintenance, the court will generally hear the case within 7 days of service. Miss. R. Civ. P. 81(d)(2); see Miss. R. Civ. P. 4. At trial, the burden is on the plaintiff to prove that the separation occurred and was not his or her fault. Then the burden shifts to the defendant to prove that there was just cause or even equal fault for the parties’ separation. After hearing both sides’ evidence at trial, the Chancellor will generally consider the following factors in awarding separate maintenance:

(1) the health of both spouses;
(2) their combined earning capacity;
(3) reasonable needs of the wife and children;
(4) necessary living expenses of the husband;
(5) fact that the wife has free use of the home and furnishings; and
(6) other such facts and circumstances bearing on the subject that might be shown by the evidence.

Huseth v. Huseth, 135 So. 3d 846, 853 (Miss. 2014). Mississippi courts will use and weigh these factors to determine an equitable amount of separate maintenance. Though the parameters of the award are at the sole discretion of the Chancellor, the Mississippi Supreme Court has noted that the amount of separate maintenance awarded cannot “unduly deplete the husband’s [or payor-spouse’s] estate or earning capacity. . . .” Bridges v. Bridges, 330 So. 2d 260, 262-63 (Miss. 1976). So, the award cannot render the payor-spouse destitute or unable to meet his other obligations. But, if there is a material change in either spouse’s circumstances such as a change in income, separate maintenance awards may be modified to reflect such a change by filing a motion to modify with the court that granted the original award. Kennedy v. Kennedy, 650 So. 2d 1362, 1367, 1369 (Miss. 1995).

Ultimately, separate maintenance serves an important purpose and is an equitable remedy available to needy spouses in times of marital separation; albeit during periodic marital separation or while awaiting divorce. But, separate maintenance may not be awarded if the court finds that the requesting spouse is equally at fault for the spouses’ separation. Nevertheless, it is important to hire of an experienced Mississippi family and divorce lawyer when seeking separate maintenance or defending against it. I have represented many people in separate maintenance actions. So, if you or a friend should need professional assistance in separate maintenance suit or any other family matter, please contact the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.