I am divorcing in the State of Mississippi, is my spouse entitled to alimony?

There are several misconceptions about alimony and its applicability when dealing with domestic cases in the State of Mississippi.  Some states do present unique alimony laws, although those in Mississippi tend to be relatively moderate in terms of their application.  It’s important to realize that alimony’s not the only possibility for disbursement of funds by an ex-spouse.  See a discussion regarding marital assets and the Ferguson v. Ferguson case (located on mspoole.com). By definition, “alimony” is a court ordered allowance that one spouse pays to the other for maintenance and support while they’re separated, while they’re involved in a lawsuit, or after they’re divorced.  Usually you will see the term “separate maintenance” applied when the payment or allowance from one spouse to another is still married.  Alternative terms are estover and spousal support.  Alimony on a temporary basis, before a court has had a chance to hear an entire case on the merits, can possibly be received in the State of Mississippi upon a showing of need and or rehabilitation or fault of the opposing spouse.

There are several types of alimony: permanent, rehabilitative, and reimbursement.  Permanent alimony refers to alimony which is payable either weekly or monthly, either indefinitely or until a specific date.  This usually may be modified for changed circumstances of either party.  Rehabilitative alimony is alimony necessary to assist a divorced person in regaining a useful and constructive role in society through vocational or other training.  This type of alimony would be particularity common in situations where a spouse lacks the ability to reenter the work force and has little earning capacity in comparison with his or her ex-spouse.

Along a similar note, reimbursement alimony is designed to repay a spouse whom during the marriage made financial contributions that directly enhanced the future earning capacity of the other spouse.  An example of this is a wife working full time supporting herself and her husband while he attends law school, medical school, or some other professional training.  We have seen this at the office several situations wherein a person makes significant contributions towards tuition, room and board, etc. for their spouse while they attend school.

Although alimony is often based upon fault there are several exceptions to this generally accepted principle, including the fact that rehabilitative and reimbursement alimony do not take into consideration the fault of either party. However, in courts of equity in Mississippi it is unlikely that anyone will be awarded alimony if it is deemed that their conduct was a substantial contributing factor to the dissolution of the marriage.  Alimony, often termed spousal support, maintains statutory authority from Mississippi Code Ann., Section 93-5-23, “When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders… touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee.”

Alimony was in the past awarded as a periodic payment without any clear ending date and could be modified based upon a change in circumstances.  Until recently, a wife could be awarded alimony based upon need if she was without fault in the break up of the marriage.  It is now equally available to a husband and wife (see Walker vs. Walker, Mississippi Supreme Court 1980).  It is required in Mississippi that a court have specific findings of fact to support any finding that  an award of alimony is appropriate given the considerations of the state’s jurisprudence.  The Walker case also reemphasized Ferguson and that alimony should only be awarded if, after a division of marital property along with non marital assets, the spouse is left with a deficit.  The court held that it could not uphold an alimony award without a specific finding justifying the need for the same.  See Henderson vs. Henderson (Mississippi Supreme Court 1997).

A court could potentially also award a combination of various types of alimony.  If an award does not fit the traditional characteristics as previously discussed, it is to be construed as periodic.  In other words, if its not clearly labeled, it will deemed periodic alimony.  The Mississippi Supreme Court recently recognized and enforced agreements that do not fit the traditional schemes, indicating that some flexibility may be allowed in determining a proper alimony agreement and or award.  Although it is clear that a person at fault is unlikely to receive and award of alimony, Hammons vs Hammons (Mississippi Supreme Court 1992)  overruled older cases stating that a wife at fault was not entitled to alimony regardless of other circumstances.  The Court held that where the alimony is otherwise appropriate, it should not be denied solely because she is at fault, and that fault is only one factor for the consideration of the court.  In short, consider that alimony can be paid in a variety of circumstances outside of considerations concluding marital assets and property, which are to be divided per the Ferguson factors as outlined on mspoole.com.

Although this body of case law continues to develop it is clear that fault is a very important factor for consideration in whether or not an award of alimony is appropriate, although its not the sole determinative factor.  Factors such as contribution to a spouse, participation in a spouse’s business venture, and other equitable factors will be taken into consideration as well.

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