If my husband and I get legally separated can I receive spousal support from him?

04/01/2007 - Category:Divorce - Separation Agreements - State: MS #2446

Full Question:

If my husband and I get legally separated can I receive spousal support from him? If not spousal support, can I get child support from him? If so how many times a month, because he gets paid every Friday?

Answer:

A legal separation is a written agreement that is filed with the court which addresses the rights and responsibilities of a married couple while they are living apart. Issues that can be addressed in a separation agreement include division of assets and debts, child custody and support, visitation schedules, alimony, etc. Unfortunately, Mississippi does not recognize legal documentation of separation.

In the event of a divorce, After the equitable division of martial property, the final step the court must complete is a consideration of alimony. If the equitably divided marital assets will adequately provide for each party, no alimony should be awarded. If one party is left with a deficit after the marital property is equitably divided, alimony is considered. The three types of alimony available under Mississippi law are periodic alimony, lump sum alimony, and rehabilitative alimony.

The purpose of periodic alimony or "support" alimony is to provide the receiving spouse with a stream of income for an indefinite period of time. Periodic alimony terminates upon the remarriage of the receiving spouse or the death of the paying spouse. Periodic alimony may be modified by increasing, decreasing, or terminating the award. The modification may be made only upon order of the court, not by one of the parties acting alone.

Lump sum alimony differs in that it is not subject to modification, unless one of the parties has committed fraud. Lump sum alimony vests in the receiving spouse and becomes an obligation of the estate of the paying spouse in the event death occurs before payment is completed. Lump sum alimony is intended as an equalizer between the parties to serve equity amongst them completely, once and for all. Lump sum alimony may be payable in a single lump sum or fixed periodic installments.

Rehabilitative alimony allows one party to receive support from the other for a fixed, definite duration and is for the purpose of allowing the party needing assistance to become self-supporting without becoming destitute in the interim. Rehabilitative alimony is not intended as an equalizer between the parties. Its purpose is to allow the recipient to start anew without becoming destitute. Rehabilitative alimony may be modified by increasing, decreasing, or terminating the award.

When considering whether to award alimony, how much alimony to award, or which type alimony to award, the court evaluates the following twelve factors: (1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) the age of the parties; (8) The standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; or any other factor deemed by the court to be "just and equitable" in connection with the setting of spousal support.

When a divorce is awarded, the Court may make an order touching the care, custody and maintenance of the minor children (under age 21) of the marriage. Where both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the minor children in proportion to their relative financial ability. If one of the parents has health insurance available through an employer or other organization, the court may require that parent to provide health insurance for the child.

The amount of child support will vary pursuant to the number of children involved and the income of the parents.



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04/01/2007 - Category: Separation Agreements - State: MS #2446

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