Many marriages go through rough patches, but that does not always mean you are ready to divorce. Sometimes a trial separation is necessary to determine what you want going forward.
A separation from your spouse generally means living apart and maintaining separate lives. The length of your separation is up to you and your spouse. Some couples live apart for many years before deciding to formally divorce while others need only a short separation before deciding what to do.
In some states, separation is treated like a divorce. You can go to a court and ask a judge to enter an order determining custody, dividing property and resolving other financial matters. This is called a legal separation.
However, Mississippi does not recognize legal separations. This does not mean that you and your spouse cannot separate. You can live apart and live independently from each other but you will not receive a formal separation order from a court.
A maintenance order is a helpful alternative to legal separation. A maintenance order addresses the same topics as a legal separation order.
How a maintenance order differs from a legal separation order
The difference between a maintenance order and a legal separation order is that a maintenance order requires a divorce to be filed. You and your spouse are still legally married while a maintenance order is in place but a divorce action is pending.
Once one spouse files for divorce, a maintenance order can cover the necessities and practicalities of life that need to be decided while the spouses live separately. A maintenance order can include a custody order and terms surrounding alimony, child support, health insurance, property division and debt division.
Maintenance orders are designed to be temporary. The purpose is to allow each spouse to know exactly how life will proceed during the time between separation and divorce.
Can we write our own maintenance agreement?
You and your spouse are always free to write your own maintenance agreement rather than leaving it up to a judge to decide. Your agreement can be as broad or detailed as you want.
Your maintenance agreement can cover only general topics such as custody and living arrangements, or it can include detailed terms covering who receives property such as homes, vehicles or other personal property and who is responsible for exactly which expenses and debts.
If you write your own maintenance agreement, it is still a good idea to have it filed with the court and deemed a legal maintenance agreement. Although you have agreed on terms, a court will still review the agreement to make sure it is fair to both spouses and in the best interest of children before officially entering it as a court order.
Cancelling a maintenance order
Sometimes a separation period leads to reconciliation between spouses, rather than divorce. If this happens, a divorce petition can be withdrawn and any maintenance order associated with that divorce will be deemed null and void.
When spouses decide to go ahead with divorce, the terms of the maintenance order do not necessarily dictate the terms of a final divorce order. You should use the time that the maintenance order is in place to negotiate and try to resolve issues permanently.
You do not need to have a maintenance order if you separate but it is often a good idea. It can provide you with peace of mind knowing there are rules surrounding the details of daily life and allow you to focus on ending or rebuilding your marriage.