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How Legal Separation in South Carolina Isn’t Your Answer to a Quick Divorce!
Written by: Megan Dell
There is no “legal separation” in South Carolina. However, there are still options when spouses live separately but are not yet ready, either emotionally or legally, to seek a divorce. If you are considering separating from your spouse in South Carolina, it is important to understand the legal process, requirements, and implications of separation.
Read on for a comprehensive guide to everything you need to know about actions for “separate maintenance and support” in South Carolina (which is our alternative to “legal separation”), including the legal requirements, the benefits and drawbacks, and how to navigate the process effectively to obtain an order of separate support.
You Can’t Really Get a Legal Separation in SC
Legal separation is a process in some states to legally recognize married couples who live apart while still remaining married. However, in South Carolina, there is no “legal separation.” Instead, you are legally considered to be married until a final divorce hearing where a judge will grant your divorce.
How Do You “Separate” From Your Spouse in South Carolina?
Though legal separation in SC does not exist, it is relatively easy to “separate” from your spouse. All that is required is for the two of you to live separately. Often this means one party moves out of the home that was previously shared.
You should be aware that moving out and living separately from your spouse does not create a “legal separation.” However, it does begin the mandatory separation period necessary for a no-fault divorce on the ground of separation for more than one year.
People sometimes wonder whether moving into different bedrooms in the same house, rather than establishing separate residences — counts as separation in SC. Unfortunately, our judges usually expect more obvious evidence that the marital relationship has ended and the parties are truly committed to the separation, such as one spouse choosing to live separate at a different address.
Filing For Divorce Without a Fault Ground
Seeking a divorce on a fault ground has become less and less common. Now, parties often want to dissolve their marriage without alleging misconduct by their spouse.
An action for separate maintenance and support gives people in these situations a method to get into Court. However, there is one strict rule: you must be able to prove actual separation between you and your spouse.
Our Supreme Court held in Theisen v. Theisen, 394 S.C. 434, 444 (2011), “[I]n order to state a claim for separate maintenance, the complaint must allege that the parties are living separate and apart. To hold otherwise would permit spouses to inundate the family court with claims following relatively minor disputes and quarrels.”
The result is that if you are not actually separated from your spouse, it is improper to file an action for separate maintenance and support.
How is An Action for Separate Maintenance and Support Different from An Action for Divorce in South Carolina?
At the end of a divorce case, you will receive a final divorce decree, and you will no longer be considered married. But at the end of a separate support and maintenance case, you will still be married to your spouse.
Under South Carolina family law, only the granting of a divorce can end your marriage. Until you are divorced by a Family Court judge, your legal status is “married.”
What Are the Benefits of Filing an Action for Separate Support and Maintenance Before Seeking Divorce?
It is common to see court orders allowing spouses to live separate and apart, free from interference by the other spouse. Such orders can be helpful for establishing a separation period when one spouse is resistant to the idea of separating, wants to resume living together, and does not want to get divorced.
Ultimately, in South Carolina, filing a separate maintenance and support action is the best way to begin the court proceedings to make progress toward divorcing your spouse. If you do are not able to file for divorce on a fault groundbut need the assistance of the Family Court, then an action for an order of separate maintenance and support is the best avenue to get help.
What Issues Can Be Handled During A Separate Maintenance and Support Case?
Each party’s financial interests, such as whether a party will be required to temporarily provide their spouse financial assistance in the form of maintaining marital assets and/or debts, maintaining insurance coverage, and/or spousal support, can be determined.
In a final order of separate maintenance, you can be required to support your spouse financially through alimony.
When a married couple has minor children, the issues of child custody, visitation, and support can be determined by the judge after considering the children’s best interests.
How Do You Get A Temporary Order in A Separate Maintenance and Support Cases?
As we have written before, a motion for temporary relief is one of the most common motions filed in South Carolina Family Court. In a separate support and maintenance case, these motions are very similar to motions for temporary relief in divorce cases.
After a motion is filed, a temporary hearing is scheduled. During this hearing, each party is allowed to present evidence (only by sworn witness affidavits) to address all of the issues before the Court. Because actions for separate maintenance and support are broad enough to address property division, debts, separate support (otherwise known as spousal support), and all child-related issues, including custody, visitation, and child support, the evidence presented during the temporary hearing usually covers all of the relevant facts in the marriage.
Based on the witness affidavits provided for the temporary hearing, the judge will make a temporary decision on all of the issues raised by either party. Then, the judge will often ask one party’s attorney to prepare a draft temporary order containing the judge’s decision on the temporary issues.
The resulting order typically includes a provision like this: “The parties are entitled to live separate and apart, free from interference from the other.” Though this language can prevent you from being forced into resuming cohabitation with your spouse, it does not accomplish a “legal separation.”
What Is the Benefit of a Temporary Order in A Separation Support and Maintenance Case?
S.C. Code Ann. Section 20-3-620(B)(2) details the factors the Court must consider when equitably apportioning the parties’ marital estate. One of the factors is marital misconduct of either party if the misconduct has affected the economic circumstances of the parties or contributed to the breakup of the marriage, but such marital misconduct only matters if it occurs before “entry of a temporary order in a divorce or separate maintenance action.”
For this reason, the value of requesting a temporary hearing and obtaining a provision allowing the parties to live separately should not be underestimated. In fact, it can be the primary reason for requesting a temporary hearing at all.
Final Orders of Separate Maintenance and Support
The end goal of an action for separate maintenance and support is to resolve all of the issues related to the marriage, either by reaching marital settlement agreement or participating in a trial after which the judge will decide how matters of separate support and maintenance are to be resolved.
Agreements Settle Important Issues
Though we do not often use the terms “separation agreement” or “legal separation agreement,” it is possible for parties to reach agreements to resolve all of the financial and child-related decisions to move toward a final divorce hearing.
Reaching an agreement that addresses property division (including marital assets, other marital assets and debts, any marital home, any business ownership, personal property, individual and joint accounts), determines whether either party will pay alimony or maintain health insurance for the benefit of the other spouse, and determines whether one party will pay the other’s legal fees is a significant step.
Again, South Carolina does not recognize legal separations, once both parties have signed a formal, written separation agreement, or the court orders approval of such agreement, then the couple is as close to “legally separated” as anyone can be under South Carolina law.
In fact, according to S.C. Code Ann. Section 20-3-130(A), once a written property or marital settlement agreement has been formally signed by the parties (or a permanent order of separate maintenance and support or approving a property or marital settlement agreement is entered), then a person who has a romantic relationship with someone other than their spouse cannot be barred from receiving alimony on the basis of adultery.
Engaging in adultery can have serious consequences in South Carolina. For this reason, for some parties, it makes sense to resolve the financial aspects of the marriage through obtaining an order of separate maintenance while child custody and visitation, child support, and/or restraining orders remain undetermined.
Turning a Separate Support and Maintenance Case Into A Divorce
Once you reach a final marital settlement agreement that settles all issues incidental to your marriage, then your attorney will request a final hearing to ask the court to approve the marital settlement agreement and make it part of a court order.
“Having lived separate and apart for a period without cohabitation for a period of one year” is one of the statutory grounds for a no fault divorce according to S.C. Code Ann. Section 20-3-10. This is the ground for divorce most used in a no fault divorce.
Throughout an action for separate support and maintenance, if the parties remain separated, then — in many cases — they will reach a time when they are eligible for divorce by meeting the one year separation requirement. If that happens, then either party may ask the Court to supplement their Complaint or Counterclaim to request a divorce.
If the judges grants that the parties’ request and other procedural steps are met, then a final hearing to approve an agreement can be turned into a final divorce hearing. The resulting order both approves the parties’ agreement and serves as the divorce decree.
Going to Trial in a Separate Support Case
The other kind of final hearing in South Carolina Family Courts is a trial. Separate support and maintenance cases are no less complicated than divorce cases, and it takes time to address all the family law issues necessary for your family to move on.
Realistically, if an attorney requests that trial be scheduled in a separate maintenance and support case, then the parties have likely lived separately long enough to supplement their pleadings and request a divorce be granted on the basis of their separation.
Should You Hire An Attorney to Get An Order of Separate Maintenance and Support?
Navigating a divorce, even a no fault divorce, can be an emotionally taxing and complex process. The fact that separation in South Carolina Family Courts is so specific while we do not have “legal separation” only makes it more tricky.
Skilled legal counsel can provide valuable guidance on separation in South Carolina to best protect your interests. If your case is one that can be resolved by an agreement, then your lawyer can negotiate and draft terms that address all pertinent issues, including property division, custody and visitation with minor children, and child support.
If you are considering separation, or have already separated from your spouse, schedule a consultation with an experienced divorce attorney and take the first step towards a brighter future.
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