When I talk with clients about divorce, I have heard many say “I understand there is no alimony in Mississippi.” Many of these people show up in my office seeking help with a divorce, and unfortunately, they are mistaken because alimony is still alive and well in Mississippi. In this regards, one of the most stressful issues that many of my clients face is the potential of having to pay alimony to their spouse in the event of a divorce. Many clients simply do not understand why they have to pay money to support a person to which they are no longer married. As a result, alimony is often both a confusing and frustrating issue in many divorce cases.
Alimony, also known as spousal support, has been a concept embraced by Mississippi law since 1848. DEBORAH BELL, BELL ON MISSISSIPPI FAMILY LAW § 9.01 (2d ed. 2011). The purpose of alimony is to provide support for a financially-dependent spouse, albeit the divorcing wife or husband. Mississippi law maintains a strong public policy in favor of providing financial support to divorcing spouses who would otherwise be at risk of becoming destitute–or those who are seriously at risk of not having the financial means to provide for basic living necessities. So, to be clear, the purpose of alimony is not to provide financial support to a divorcing spouse so that the spouse may maintain a comparable standard of living that existed during the marriage, but to provide monetary support to avoid placing persons in poverty following a divorce. That being said, there are four types of alimony recognized in Mississippi: (1) permanent alimony, (2) lump sum or “settlement” alimony, (3) rehabilitative alimony, and (4) reimbursement alimony. See BELL ON MISSISSIPPI FAMILY LAW § 9.02. The most prominent form of alimony is permanent alimony.
When most people think of alimony, they are thinking of permanent alimony. Permanent alimony is where a spouse is awarded periodic or monthly support payments. This type of alimony generally terminates upon the death of either the recipient-spouse (spouse receiving alimony payments) or paying-spouse (spouse obligated to make the payments), and remarriage or cohabitation by the recipient-spouse with another person. Holley v. Holley, 969 So. 2d 842, 844 (Miss. 2007). It is important to remember that permanent alimony may be modified upon a material change in circumstances of either the recipient-spouse or paying-spouse–in other words, it may be increased, decreased, or terminated to reflect a change in either spouse’s financial abilities. Bowe v. Bowe, 557 So. 2d 793, 764 (Miss. 1990).
When seeking permanent alimony in divorce cases, it is important to note that alimony is only available once the chancery court makes a determination as to the division of marital assets, or division of property acquired during the marriage amongst the divorcing spouses. Williamson v. Williamson, 81 So. 3d 262, 274 (Miss Ct. App. 2012). Thus, alimony is not automatic in all divorce cases, and an award of alimony may very well depend on whether the chancery court’s distribution of the marital assets puts a given spouse in a financially sound position that would not warrant an alimony award. Nevertheless, in Mississippi, chancery courts generally consider a wide range of factors when awarding permanent alimony. These factors include the:
- income and expenses of the parties;
- health and earning capacities of the parties;
- needs of each party;
- obligations and assets of each party;
- length of the marriage;
- presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
- age of the parties;
- standard of living of the parties, both during the marriage and at the time of support determination;
- tax consequences of the spousal support order;
- fault or misconduct of the parties in giving rise to the divorce;
- wasteful dissipation of assets by either party; or
- any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). As the last factor–or the “catch-all” factor–indicates, this list is not exhaustive or all-inclusive, and it does not include every single thing the Chancellor may consider in awarding permanent alimony in a divorce case. Instead, the list illustrates how fact-intensive alimony awards really are. Specific facts and circumstance must exist in order for a spouse to be entitled to permanent alimony; alimony will not be arbitrarily awarded by the court.
Lastly, there is a common misconception that alimony is gender-specific, meaning that it is only available to women, or the divorcing wife, rather than divorcing men. This is incorrect. In fact, alimony is gender-neutral–it favors neither divorcing women nor men. The United States Supreme Court in Orr v. Orr held that the United States Constitution requires gender neutrality in family law matters, including in alimony awards whereby both men and women must be permitted to receive alimony under state law. Orr v. Orr, 440 U.S. 268, 279 (1979). Conforming to the Supreme Court’s decision in Orr, Mississippi and all other states in the United States possess gender-neutral alimony rules. See e.g. MS § 93-5-23 (2014).
Alimony is very much alive in Mississippi, and it is often a high point of contention in divorce cases. Either party–man or woman–to a divorce may be entitled to alimony under Mississippi law. Awarding alimony in divorce cases requires chancery courts to analyze and weigh many facts and circumstances surrounding both parties to the divorce. Mississippi courts have made it clear that alimony is not automatic, but it is still a viable safeguard for many financially-dependent spouses following a divorce. Whether a person is seeking alimony or being ordered to pay it, it is very important to enlist the services of an experienced divorce attorney. As an experienced divorce and family law attorney in Mississippi, I know the ins and outs of alimony. If you or friend should need professional assistance in a divorce or any other family law matter, please do not hesitate to contact the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.