Legal Separation in South Carolina
Understanding Separation and Your Legal Options
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Frequently Asked Questions About Legal Separation in South Carolina
Is legal separation recognized in South Carolina?
South Carolina does not formally recognize legal separation. In other words, there is no legal status called “legal separation” that will be granted by the court before spouses can live apart.
However, spouses may still live separately and pursue legal remedies through the Family Court while they are separated by filing for an “order for separate maintenance and support.” For example, a spouse may seek orders related to child custody, child support, alimony, or possession of the marital home while living apart from their spouse and before a divorce is finalized.
Do I have to move out of the marital home to be considered separated?
Yes, spouses must live in separate residences in order to be considered legally separated for purpose of seeking a divorce on one year continuous separation in South Carolina. Living separate and apart means that the parties maintain separate households and no longer live together as husband and wife. Even one overnight together under one roof re-tolls the one year separation time period, no matter if it is the intent of the couple to divorce.
Before making the decision to vacate the marital home, it is imperative that you seek advice of competent counsel.
Can child custody or support be decided while we are separated?
Yes. Even if a divorce has not yet been finalized, the Family Court can issue orders regarding child custody, visitation, child support, and spousal support while the parties are separated.
These matters are addressed through temporary hearings or through agreements between the parties that are later approved by the court. Addressing these issues early in the separation process can help provide stability for both parents and children while the divorce case moves forward.
Legal Separation in South Carolina
Unlike some states, South Carolina does not have a formal legal status called “legal separation.” In other words, the Family Court does not issue an order that declares a couple legally separated before a divorce can occur. Where no fault ground for divorce exists, one spouse must move out of the marital home to institute legal proceedings for what is called an “order for separate maintenance and support.”
The tolling period for a one year continuous separation period begins the day the parties live in separate homes and not under one roof. This separation period is important because South Carolina law allows a couple to pursue a no-fault divorce after they have lived separate and apart for at least one continuous year. Just because spouses meet the one year continuous separation period, this does not mean your contested case is over. The Court will not grant a divorce unless and until all issues of the marriage are resolved, including division of assets, support, and child related issues, by a written agreement or in a trial before a Judge.
Even though a spouse is not seeking a divorce in a separate maintenance action, the act of moving out of the marital home allows the Family Court to still issue orders addressing issues such as child custody, visitation, child support, alimony, or possession of the marital home while the parties are separated. These orders can provide structure and stability while the divorce case is pending.
What “Separate and Apart” Means in South Carolina
The Physical Separation Requirement
In South Carolina, living “separate and apart” means that spouses reside in different homes and no longer live together under one roof. Simply deciding that the marriage is over while continuing to share the same household is not enough to establish a legal separation and to request the Court’s intervention on ancillary matters of the marriage.
The One-Year Separation Requirement for No-Fault Divorce
South Carolina allows spouses to obtain a no-fault divorce after they have lived separate and apart for a continuous period of at least one year. This means the parties must maintain separate residences for that entire period before filing for divorce on this ground.
Once spouses have been separated for one year continuously with no intermittent cohabitation, either may seek a divorce on that ground. Again, if all other issues such as division of marital assets, support, and child related issues have not been resolved by written agreement, the Court will not grant a divorce until those issues are resolved. A divorce action and these issues go hand in hand.
Exceptions When Fault-Based Divorce Is Alleged
Legal Issues That Can Be Addressed During Separation
In an action for Separate Support and Maintenance, the Family Court can address many important issues while the parties are separated. In many cases, these matters are handled through temporary hearings or agreements approved by the Court.
Issues that may be addressed during separation include temporary child custody and visitation schedules, child support obligations, use of certain property, and financial support between spouses. The court may also determine who will have possession of the marital home during the separation period.
In certain circumstances, the court may issue protective or restraining orders when safety concerns are present. These orders can place restrictions on contact between the parties and their children while the case is pending.
Addressing these matters during separation can provide stability and expectation of requirements during separation, as well as Court protection for those requirements using its enforcement mechanism through the contempt process.
Separation Agreements in South Carolina
Many couples are able to resolve issues related to their marriage without the Court’s intervention through a written agreement. A marital settlement agreement is a contract between spouses that outlines how property and debt is to be divided, support issues, and custody and visitation of their children while awaiting the one year separation period.
By clearly outlining each party’s rights and responsibilities, a marital settlement agreement can help reduce conflict and provide clarity during an already difficult time. Once an agreement is reached, it may be submitted to the Family Court for approval. If approved, the agreement can become part of a court order and may be enforced by the court if either party fails to comply with its terms.
Temporary Hearings During Separation
In many separation cases, one or both spouses may request a temporary hearing in Family Court, depending upon which is the first to file a case. Temporary hearings are designed to address important issues early in the case so that both parties have clear rules to follow while the divorce process is ongoing. Because divorce proceedings can take time, temporary orders help provide structure and stability during the separation period.
At a temporary hearing, the court can issue initial rulings based on the information available at that stage of the case. These rulings are not final, but they remain in place until the case is resolved by settlement or trial. The purpose of these orders is to address immediate concerns and prevent disputes while the case moves forward.
Temporary hearings commonly address issues such as child custody and visitation schedules, child support, and spousal support. The court may also decide who will remain in the marital residence while the case is pending and may establish other financial responsibilities between the parties. These decisions help create a framework for how the parties will manage family and financial matters during the separation.
When Separation Leads to Divorce
For many couples in South Carolina, separation is the first step toward divorce. When spouses live separate and apart for a continuous period of at least one year, either party may file for a no-fault divorce based on that separation.
In other situations, a divorce may be pursued based on fault grounds recognized under South Carolina law. These grounds include adultery, habitual drunkenness or drug use, physical cruelty, and desertion. Cases involving fault grounds often involve additional evidence and may proceed differently than a divorce based solely on separation with no fault.
The timing of when to file for divorce can depend on many factors and often involve the overall strategy of the case. Understanding how separation fits into the overall divorce process can help spouses make informed decisions about the next steps in their case.
Why Legal Advice Matters During Separation
Separation amongst spouses may begin with informal decisions between them about living arrangements, finances, or parenting schedules. While these agreements may seem workable at the time, informal arrangements without proper legal advice can create significant legal and financial risks. Without clear legal guidance, one spouse may unknowingly be exposed to financial obligations, misunderstand their rights regarding custody or support, or fail to protect important interests during the separation period.
Legal advice during separation can help ensure that important issues are addressed clearly and appropriately from the beginning. Legal counsel can also help determine when court orders may be necessary and how decisions made during separation may affect future divorce proceedings.
Protecting Your Interests During Separation
Separation is often the first step in resolving the legal and financial issues that arise at the end of a marriage. At Warner Law, we work with clients to protect their financial interests, address family court issues when necessary, and provide guidance as they navigate separation and potential divorce proceedings.
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My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.