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Does MS recognize legal separation? It is a question that I am asked on a repeated basis, with the answer being a resounding NO! While, MS allows for a separate maintenance cause of action, it is not a distinct legal status. In effort to help clear up some of the cofusion, I would like to post an excellent excerpt from fellow blogger and attorney Timothy J. Evans of Hattiesburg whose blog can be found here, http://www.timothyjevanslaw.com/FamLawBlog/Blog.html.
Evans writes:
In some states, separation is a legal status, like divorced or married. Because Mississippi does not recognize true no-fault divorce (in a true no-fault divorce, only one of the spouses must cite irreconcilable differences; in Mississippi, both spouses must agree), it is possible for couples to live separately for years without any real hope for a divorce. For this reason, Mississippi still recognizes the common law action of separate maintenance. (Note that for simplicity, I will speak of the husband supporting the wife, although a wife could have a judgment of separate maintenance awarded against her).
To obtain separate maintenance, the wife must prove to the chancery court judge that she is financially dependent on her husband, and that she is not substantially at fault for the separation. In determining the amount of the award, the judge must use the same criteria that he uses in determining the amount of alimony:
- The health, earning capacity, entire source of income, and taxes of both husband and wife;
- the reasonable needs of the wife and any child of the marriage;
- the husband’s necessary living expenses;
- resources available to the wife; and
- other relevant facts and circumstances.
–Hopefully, this post will shed some light on this long-running misconception concerning “Legal Separation” in Mississippi.
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After countless inquires, I write this post in order to help clarify what I deem a long running misconception concerning child custody law throughout Mississippi. Specifically, that a child twelve or older has the right to choose which parent they wish to live with in the event of a custody dispute.
Miss Code Ann. Sec. 93-11-65, provides: “if the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live with in determining what would be in the best interest and welfare of the child.”
Consequently, the Mississippi Court of Appeals has held that trial court’s are not required to follow the child’s stated preference. D.A.P. v. C.A.P.R., 918 So.2d 809, 824(¶ 62) (Miss.Ct.App.2005). Mississippi case law does not support the contention that a child’s prefernce to live with the non-custodial parent, standing alone, will satisfy the material change of circumstance requirement. Id. Further, the child’s preference is but one factor in considering the ultimate issue of what is in the best interest of the child. Brown v. Brown, 764 So.2d 502, 505 (Miss.Ct.App.2000) Thus, a child’s preference is just one factor for the Chancellor to consider, albeit a strong one.
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