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Can spouses legally separate in Mississippi?

In many states, spouses may choose to live apart and yet, for one reason or another - health coverage, for example - not seek a divorce. The rights and duties of each spouse can be formalized in a legal separation agreement in some states. Such an agreement sets out the financial and other obligations of each spouse, and in the event of a breach, may be legally binding. But, not in the Magnolia State.

Under Mississippi family law, there is no such creature as a "legal separation" between married individuals. You are either married or you are divorced. Or, you request an order for separate maintenance. Separate maintenance is a legal construct that was developed by Mississippi case law. It is designed to favor reconciliation and may be considered punitive to a spouse who has left the marital home.

Either spouse may request separate maintenance, but, when it is ordered, it is typically awarded to the spouse with the lower earning capacity. At common law, it was designed to protect stay-at-home spouses, typically women, from being abandoned by their husbands. Separate maintenance is also available to spouses who are living apart while a divorce is pending, so that the parties can generally maintain a similar standard of living to that which they enjoyed in the marital home, until the divorce matter is settled.

In deciding whether to award separate maintenance, the court must be satisfied that the plaintiff did not cause the separation. The burden then shifts to the defendant to prove that the separation was warranted or that both parties are equally at fault. The court then weighs several factors, including the health and income of the spouses, before deciding whether to order separate maintenance. Those considering separating from their spouse should consult an experienced family law attorney before doing so.

Source: FindLaw, Huseth v. Huseth, No. 12-CA-01576, Miss. Sup. Ct., 2014

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