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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 114150
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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I need to know what the process is to file

Customer Question

I need to know what the process is to file for marraige separation in state of Mississippi and are there any benefits to doing so?
Submitted: 1 year ago.
Category: Family Law
Expert:  RobertJDFL replied 1 year ago.
Thank you for using Just Answer. It will be my pleasure to assist you.Mississippi only offers divorce and what is called separate maintenance, they do not recognize legal separation. The difference between the two is as follows:In a divorce, there is a complete severance of the marriage and the husband and wife are no longer married and live apart free from interference from the other. The parties themselves or the Court will make a division of the assets and debts accumulated during the marriage and divorce them equitably (not necessarily 50/50). The parties or the Court, if the parties can not decide, will divide the furniture and furnishings and determine the amount of child support and/or alimony. If there is real property (house or land) the court will divide the property or the parties will decide who shall be entitled to the ownership of the house and the debt on the house.With separate maintenance, the couple will stay married and there will be NO division of the assets or the debts of the parties. In this type of action the person seeking to have the other party evicted from the home must show the same grounds for separate maintenance as you do for a divorce. The Court will require the offending party to leave the home and to pay maintenance to the innocent party. Maintenance is child support and spousal support which can come in different forms, such as house payments, cash payments, car payments, etc. In this action you may not sell your property, transfer it to someone else and you may not let it go to waste to spite a person. Of course, parties may choose to simply separate, and not file anything with the courts, and just live apart. Reasons that people may separate and not divorce include religious reasons, hope of reconciliation, or because one spouse wants to remain on the insurance of the other spouse. If I can clarify anything or you need additional information, please use the REPLY feature, and I'll be happy to assist. Thank you.
Customer: replied 1 year ago.
thank you, ***** ***** let me give you just a little of the problem. we have been separated for about 6 weeks or so. i initially left the home, asked him if he wanted to stay here and me/kids find somewhere to live, he said no so he took about 4-5 days, got the majority of his things and left. we always talk (not always nicely), he has slept over here a few times, with the kids, a 2-3 of those times i REALLY didnt want him here but anyway.... main issue is him showing up, unannouonced, and claiming he has right to be here, i cant make him leave, etc.. I have done everything, helped him get a place to live, storage shed for his things, he isnt working, i have been paying all bills (that is not nescessarily something new), I feel like there should be some way to make it where he cant just show up here and not leave. he has made it clear HIS name is ***** ***** house (his name only its a double wide trailer and when we bought it i had a mutaul bankruptcy showing on my credit reprot but it didnt show up on his so they put it in his name only, my dad gave us the land it sits on..in the middle of land my dad owns, land in both our names and used as collateral for home loan). We also own a house in another town that was his parents, its paid for, so i would consider it "his" if it came to dividing property
Expert:  RobertJDFL replied 1 year ago.
Marital property includes all property either spouse bought during the marriage. It does not matter whose name is ***** ***** title, because in a divorce, you're still entitled to your share of equity. But, absent something like a restraining order if there are issues where he has threatened you or there is violence, he too has the right to be in the household. Thus, unfortunately, you have the difficult choice of moving somewhere on your own pending a divorce (if that's what you want to do) or file for separate maintenance, and seek exclusive possession of the home for your and your children.
Customer: replied 1 year ago.
so, even though he moved out, no longer lives here, he has the right to just come here or even move back in if he wanted?
Expert:  RobertJDFL replied 1 year ago.
Absent a court order to the contrary -yes. Same if you moved out and then changed your mind.
Customer: replied 1 year ago.
oh good grief! so what is process for this separation maintenance you said?
Expert:  RobertJDFL replied 1 year ago.
You'd have to file a petition for maintenance with the Chancery Court. I was looking for a step by step guide and/or forms to show you but wasn't able to find anything online. My other thought is that if you were going to file for divorce, as soon as the divorce is filed you could also file a request to be awarded temporary exclusive possession of the marital home for you and the children until such time as the division of property can be made upon conclusion of your divorce.
Customer: replied 1 year ago.
i really dont WANT to do a divorce, financially it makes no sense for us, plus health insurance is an issue. would the separation maintenance do what i need? get exclusive rights to the home? I could get a order of protection but i feel that would likely just make things worse.
Expert:  RobertJDFL replied 1 year ago.
I honestly don't know if it will. The point of separate maintenance is for a court to order a spouse that has left the home to financially support you. In some cases, a court can actually order that the party return to the marital home (!) until a divorce is finalized, or to assume all financial responsibilities while you are separated --which you've said he seems unwilling or unable to do. I suppose it's possible to file for maintenance but request only that he give up right to possession of the home while you are separated while you will pay the bills. You wouldn't be able to sell the property or otherwise waste it (e.g., you couldn't burn it down and collect the insurance money) but he wouldn't be able to move in, either.
Customer: replied 1 year ago.
i dont want to sell or waste, i just want to live in peace, without knowing he LEGALLY has the right to just come here and stay if he so chooses. and i dont want his money (he doesnt have any, i mean, yes, it would be nice if he helped but I am not willing to take the chance of him being told he can stay here) so you dont know if i can file for separation just to request exclusive rights to this home? would there be such a thing as some type of legal agreement we could get drawn up saying I have exclusive rights to this home and he has exclusive rights to the other home, if he would agree to that?
Expert:  RobertJDFL replied 1 year ago.
You can do that, the issue I forsee is it's not court ordered. So if he agrees and then changes his mind, it's not enforceable.
Customer: replied 1 year ago.
oh, well that is no good. so to reiterate...you dont know if sep maintenance will do what i need or not?
Expert:  RobertJDFL replied 1 year ago.
I don't. I can't find anything in my searching that suggests that it can be done. It's really meant more as a financial support measure, not for possession of the home from everything I have researched and read. I can opt out, and let other experts pick up the question, perhaps one of them knows the answer to this, if you'd like?
Customer: replied 1 year ago.
do you think anyone would? you have been great, I want you to get credit....
Expert:  RobertJDFL replied 1 year ago.
I honestly don't know. We have a lot of knowledgeable experts, I don't know if any of them are licensed in your state and may know, though, or can at least better research this. At this hour, I don't think you'd get an answer tonight though. I don't want you to pay me for an incomplete answer.
Customer: replied 1 year ago.
ok, you can put it back up if you want, maybe someone familiar with MS can pick it up. I really appreciate your help and patience. thank you
Expert:  RobertJDFL replied 1 year ago.
No problem. Please do not reply back to this reply though, because the site will automatically send the question back to me for an answer, which will prevent other experts from being able to access the question. Thank you, ***** ***** luck.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I am a different contributor and look forward to working with you to provide you the information you are seeking for educational purposes only.
First, in MS separate maintenance is a court-made equitable, monetary remedy awarded by Mississippi courts in the event that spouses have separated and one spouse is financially dependent on the other. See: Lynch v. Lynch, 616 So. 2d 294, 296 (Miss. 1993). Separate maintenance is NOT a statutory remedy enacted by the Mississippi state legislature.
So, the underlying purpose behind this duty is "to provide, as nearly as may be possible, the same sort of normal support and maintenance for the wife . . . as she would have received in the home, if the parties had continued normal cohabitation . . . ." See: Germany v. Germany, 123 So. 3d 423, 429 (Miss. 2013).
MS does not make many court forms available online. However, the petition for separate maintenance is the same format of a petition for divorce and the wording is simply changed from divorce to separate maintenance. Here is a sample of a divorce petition, which given the circumstances you described above you should be considering filing anyhow. See: http://www.robertson.ms/_literature_42155/Form_Irreconcilable_Differences_Complaint