A couple must live separate and apart as a prerequisite to obtaining a no-fault divorce in South Carolina. However, many couples decide to separate because their personal or religious beliefs prohibit divorce, or because they need a break from marital turbulence. No matter your reasons for contemplating this move, you probably have numerous questions about the legal aspects of legal separation and what it could mean for your relationship.
At McKinney, Tucker & Lemel, LLC, we help people to face challenging and emotional legal issues in areas such as legal separation and divorce. We understand how difficult it is to consider the end of a relationship. Our team is here to answer your questions and support you through this tough time. Keep reading to find the answers to some of our most frequently asked questions about legal separation in South Carolina. Contact us to discuss the specific facts of your case with a South Carolina family law attorney.
Is Legal Separation the Same as Divorce?
No. Some states allow couples to obtain court orders for legal separations, which represent a formal parting of ways that still leaves a marriage legally intact. In South Carolina, however, courts do not recognize legal separations. South Carolina couples are either legally married or unmarried, with no in-between. When spouses separate in South Carolina, it only means that they are living apart from one another in different homes.
As an alternative to legal separation, South Carolina family courts issue Orders of Separate Support and Maintenance. This type of order specifies how separating parties will handle issues like property division, alimony, custody, and child support before the parties obtain a divorce order that legally terminates their marriage. Importantly, a couple with an Order of Separate Support and Maintenance remains legally married until the court grants their divorce order.
What Are the Benefits of Legal Separation Pending Divorce?
Pursuing a legal separation pending divorce is beneficial for multiple reasons, even though South Carolina will not formally recognize the separation. An Order for Separate Support and Maintenance can protect each spouse’s financial interests and the financial needs of minor children during the separation period.
It might seem tempting to wait until you and your spouse have lived separately long enough to obtain a no-fault divorce. However, much can happen during the requisite one-year separation period. Either party might accumulate debts, attempt to conceal marital assets or require money or resources to support young children. With a temporary separation order, you can work toward solutions for issues you cannot put off until the final divorce hearing.
When you file an Order for Separate Support and Maintenance, you can include a request for divorce as part of that action. But to do so, you must first satisfy the requirement to live separate and apart for one year or prove that one of the following grounds exists for a fault-based divorce:
- Adultery
- Habitual intoxication
- Physical cruelty
- Desertion.
What Is an Order of Separate Support and Maintenance?
An Order of Separate Support and Maintenance is a temporary legal order that outlines how separating spouses will handle finances, child-rearing, and other essential issues while separated, whether or not they intend to pursue divorce. Orders of Separate Support and Maintenance come into play in many divorces because South Carolina requires parties to live separately for at least one year to obtain a no-fault divorce.
To fulfill the one-year separation requirement, spouses must live in different locations. Sleeping in separate beds or different rooms within the same household does not count as living separately in a legal sense. Additionally, while couples do not need to obtain Orders of Separate Support and Maintenance to begin living separately, these orders often help separating spouses protect their best interests before a divorce.
When separating couples attend hearings to seek Orders of Separate Support and Maintenance, they can ask the court to address any of the following issues:
- Division of marital property, assets, and debts
- Who will remain in the marital home
- Child custody, visitation, and child support
- Who will pay alimony, and how much
- Who will keep vehicles or transfer titles
- Who will assume control of joint accounts
- Who will maintain family health insurance
- Whether restraining orders are needed.
How Do I Get an Order of Separate Support and Maintenance?
Either party may seek an Order of Separate Support and Maintenance in South Carolina if they live separately or have grounds for a fault-based divorce. Obtaining the court order typically follows this process:
- One spouse, or “plaintiff,” files a Summons and Complaint for the Order of Separate Support and Maintenance.
- The plaintiff also files a Notice and Motion for Temporary Relief.
- The plaintiff serves the other spouse, called the “defendant,” or their attorney with the Summons, Complaint, and Notice and Motion for Temporary Relief.
- Once the plaintiff serves the defendant, the defendant has 30 days to file a response with the court.
- After the defendant responds or 30 days have passed, a family law judge hears the case and resolves outstanding issues or simply approves the order. The order remains in effect until the parties obtain a final divorce order.
What Can I Do When Divorced That I Cannot Do When Legally Separated?
The key difference between a legal separation and a divorce is that South Carolina still considers a couple legally married even when they are separated. As a result, partners who have separated but not divorced cannot remarry, whether or not they live apart. Remember that dating other people when you are legally separated from your spouse could give them grounds for an at-fault divorce on the basis of adultery, which could harm your legal case.
How Can a South Carolina Family Law Attorney Help You?
Filing for divorce or seeking legal separation in South Carolina is often a complicated, even painful process – but one that becomes considerably easier with the help of a knowledgeable family law attorney. If you have questions about legal separation in South Carolina or wish to discuss your case with a lawyer, contact McKinney, Tucker & Lemel, LLC today for your initial consultation.
