Separate Maintenance

Separate maintenance is an equitable remedy created in Mississippi.  I am working on a brief dealing with the issue now.  “[S]eparate maintenance is . . . court-created equitable relief based upon the marriage relationship and is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.” Forthner v. Forthner, 52 So. 3d 1212, 1219 (¶13) (Miss. Ct. App. 2010).  The Mississippi Supreme Court explained that the jurisdictional basis of a separate-maintenance decree stems from equitable principles first laid down in Mississippi in Garland v. Garland, 50 Miss. 694 (1874). The very power of the court to grant separate maintenance was based upon the following two requirements: (1) a separation without fault on the part of the wife, and (b) the husband’s willful abandonment.  Stated another way, the Chancery Court is deprived of jurisdiction to order separate maintenance absent proof of these two items.  To me it is interesting that the two requirements for this are stated as jurisdictional as opposed to an element of proof.  With the issue being jurisdictional, this leaves the judgment open to attack on appeal and potentially even collaterally at another proceeding.