Alimony Awards In Mississippi Divorces Largely Up To Judges Discretion
On behalf of Stephen Maggio
Alimony can be set by consent agreement or by the judge in chancery court in the divorce proceeding.
Mississippi law governing alimony is largely judge made, as compared with those of many other states that instead have detailed, restrictive legislator-crafted statutes that direct judges who consider spousal maintenance in divorce proceedings,.
Alimony, also called spousal maintenance or spousal support, is the payment of support payments from one ex-spouse to the other. Mississippi allows alimony to be paid in a lump-sum award or periodically on an ongoing basis, usually monthly.
Types Of Alimony
Periodic payments may end on a date certain or with a particular event, or may continue for an indefinite, potentially permanent, time. However, they would end on the death of either ex-spouse or the recipient party’s remarriage. Periodic alimony also is considered income, which is taxable for the spouse receiving the payments and is deductible by the spouse making the payments.
In addition, either can return to court to request modification based on changed circumstances.
Since 1995, Mississippi courts have allowed rehabilitative alimony, meant to provide ongoing support for the receiving ex-spouse while preparing to return to work. Rehabilitative awards have set ending dates, but can be modified as to the monthly amount or the time period can be shortened or extended by either party if they can prove a change in circumstances affecting their ability to pay or their need for such payments.
A lump-sum award is meant to equalize the division of property between the spouses and marital fault is not to be considered. However, it is important to note that Mississippi is an “equitable distribution” state and not a “community property” state. As such, awards in Mississippi do not have to be equal. A lump sum payment can be made over time, such a number of years or months. It is for a definite amount and cannot be modified. Additionally, it is not considered taxable income nor does the spouse paying receive a tax deduction. Several factors favor a lump-sum award over periodic payments, such as:
- One spouse substantially contributed to the wealth of the other either by quitting a job to meet domestic needs at home or by helping the wealthier spouse in his or her business
- Marriage of long duration
- Recipient spouse is without income or the property division leaves him or her with a significant financial deficit
- Without lump-sum alimony the recipient spouse would “lack any financial security”
Mississippi Alimony Standards
Mississippi has a statute governing alimony and child support in chancery court divorce proceedings. The statute says that the court has the discretion to consider the “circumstances of the parties and the nature of the case, as may seem equitable and just …”
Beyond this statute, Mississippi judges are guided by state common law (that made by court holdings).
In a Mississippi divorce case, the judge must first determine how the assets of the divorcing spouses will be equitably divided. Then the issue of spousal support should be considered if the property division left either of them with a “deficit,” also considering child support, in order to create the complete picture of how the family’s financial affairs will be settled.
In determining an alimony award, the Mississippi Supreme Court requires judges to consider any factor “just and equitable,” along with 11 other specific things:
- Parties’ income and expenses
- Parties’ health and earning capacities
- Parties’ needs
- Parties’ obligations and assets
- Marriage length
- Need to care for children in the home either directly or by paying for child care
- Parties’ ages
- Parties’ standard of living during the marriage and at the time of divorce
- Tax consequences
- Fault or misconduct
- “Wasteful dissipation of assets”
It should be noted that the divorcing parties may also negotiate a marital settlement agreement, also called a consent agreement, settling the issues in their divorce, including spousal support, rather than having the judge decide. However, the consent agreement must still be submitted to the court for approval to become part of the final divorce decree.
Alimony and other divorce issues are complicated and personally important, so anyone in Mississippi facing them should seek experienced advice from a family lawyer. From his office in Gulfport, attorney Stephen Maggio, a former judge, through the Maggio Law Firm, PC, represents family law and other clients on the Gulf Coast and beyond.
Keywords: alimony, judge, divorce, Mississippi, discretion, spousal maintenance, spousal support, spouse, periodic, rehabilitative, lump sum, property division, marriage.