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.
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.