A “separation” is when spouses elect to live apart. Some couples separate for a short period of time while other couples may live separately for years before finalizing their divorce. Separations may be formal or informal. In a formal separation, a judge will issue an order dividing property, deciding custody, or determining child support. This is called a “legal separation.”
No. Mississippi does not formally recognize legal separations. This means you can separate from your spouse informally, but a court won’t issue a legal separation order. Mississippi law offers couples an alternative to legal separations—maintenance orders.
A judge may issue a maintenance order when either spouse files for divorce or separate maintenance. Maintenance orders are designed to be temporary. In a maintenance order, a judge will determine child custody, child support, alimony, medical insurance, each spouse’s responsibility for debts, and either spouse’s right to the marital home or use of vehicles. A maintenance award is designed for the short-term and to help a needy spouse stay afloat financially during a temporary split.
A maintenance award is a final order, but it’s not permanent. You are still married even if a judge has issued a maintenance award. When a divorce is finalized, a maintenance award will have no effect and a divorce order will take its place. Divorce orders should resolve every current and potential issue that may arise after your divorce. Specifically, a divorce order won’t just decide which spouse should live in the marital home, but it will also set each spouse’s responsibility for future payments or may even require the couple to sell the house. Your divorce order will divide debts, award assets, assign legal and physical custody of children and may award alimony on a permanent rather than a temporary basis. Once you are divorced, your earnings and any property that you acquire are your own. Your ex-spouse has no rights to your assets earned following a divorce. This isn’t always the case when spouses separate.
For example, in one Mississippi case a couple separated and obtained a maintenance order at the time of their separation. Seven years later they determined they wanted to move forward with a divorce. Because of the huge lapse of time, the trial court had some difficultly determining which assets were marital and which assets belonged separately to each spouse. In this case, the appeals court determined that because the couple did not live together in the same house at any time during their separation period or share finances, that each spouse’s assets and debts acquired after the date of separation were his or her own.
Couples are free to work out their own separation agreements and request that the court turn the agreement into an official maintenance order. Although Mississippi won’t formally recognize a legal separation, separation agreements are still acceptable and enforceable contracts in the state.
You and your spouse may work out an agreement on your own or with a mediator’s help. Mediators are not a substitute for an attorney and can’t offer you or your spouse legal advice. However, mediators are skilled in the art of negotiation and may help you and your spouse reach a compromise.
A separation agreement should address all the day-to-day details of living apart. This includes sharing finances, covering mortgage or rent payments, maintaining vehicles, parenting time, insurance coverage, and any other issues relevant to your family’s circumstances. A judge may turn your agreement into an official maintenance order if it’s just and fair and serves your children’s best interests.
Many factors impact a judge’s custody decision. Among those factors is each parent’s relationship with and involvement with the child. A judge will examine your family’s overall circumstances to create a custody arrangement that’s tailored to your child’s best interests. Some of the factors that a judge may consider when evaluating custody include:
The length of your separation and your involvement in your child’s life during a separation period will impact how a judge divides custody at the time of your divorce. A parent who abandons a child whether emotionally or financially during a separation is unlikely to get custody at a divorce trial.