Separation Basics
Living separately from your spouse is the crucial first step when considering a legal separation in South Carolina. Simply residing in different rooms within the same house won’t suffice as proof of separation. In a specific South Carolina case, a judge dismissed a wife’s request for a legal separation and maintenance order because she still shared a house with her husband and children. The judge maintained that her needs were already adequately addressed and that she wasn’t genuinely separated from her spouse. It’s important to note that legal separations are not recognized in South Carolina.
Couples decide to separate for various reasons. In South Carolina, a one-year separation is required before obtaining a no-fault divorce. Breaking this separation period may give the judge grounds to deny your divorce. However, if you are seeking a divorce based on cruelty, adultery, or habitual drunkenness, you can bypass the one-year separation requirement.
Does South Carolina Recognize Legal Separations?
While South Carolina requires spouses to separate before obtaining a divorce, the state does not formally recognize legal separations. During separation, spouses can request temporary maintenance orders. Either spouse can file a maintenance action to seek alimony, property orders, child support, and custody awards. However, as mentioned earlier, spouses who are not living separately are not entitled to support.
What’s Included in a Maintenance Order and Who Decides?
Maintenance orders generally cover the same issues as divorce cases. A judge will decide matters such as child support, property division, custody, visitation, spousal support, and medical insurance coverage in a maintenance order. Spouses have the option to reach their own agreements or leave matters to be decided by a judge.
If spouses choose to create their own maintenance or support agreement, they can do so independently or with the assistance of a mediator. It’s important to note that a mediator cannot provide legal advice, although they may facilitate agreement and help draft a suitable settlement or separation agreement. Once both spouses sign the agreement, it must be submitted to a judge for approval. The judge will ensure that the agreement is fair and in the best interests of any children involved before turning it into an official court order.
Alternatively, a judge may schedule a hearing to decide temporary maintenance orders. During the hearing, the judge will consider testimony and evidence presented by each spouse. The judge will assess the overall circumstances and needs of the family, taking into account factors such as age, health, work history, earning capacity, and the child’s well-being and adjustment to school and community.
What Are the Differences Between Separation and Divorce?
Separation does not end a marriage, nor does it dissolve the marital estate. A separation or maintenance order may involve the award of spousal support and the division of assets, but it prohibits excessive spending and the selling or transferring of marital assets during its duration.
In contrast, divorce is a final order that terminates the marriage and dissolves the marital estate. Once divorced, you are free to remarry, relocate, or pursue other financial endeavors without interference from your ex-spouse. During the separation period, it is best to avoid making major changes as it can complicate matters. Essentially, a separation puts your life on hold.
Despite the limitations, separation offers some financial benefits. It allows couples time to sort out their marital estate and resolve certain issues before proceeding with a divorce. Avoiding protracted battles in court can save time and money during the divorce process. Additionally, in situations where one spouse has been out of the workforce for an extended period, separation provides an opportunity for the unemployed spouse to find employment.
How Will a Separation Impact My Divorce?
Temporary maintenance orders may have an impact on future orders in your divorce, even though they are intended to be temporary. This is especially true if a judge issued a maintenance order following a court hearing. If a court has made decisions on matters such as the division of property or custody, it is unlikely that a judge will make significant adjustments unless there is substantial evidence of changed circumstances since the maintenance order was issued.
If you have any questions or concerns, it is advisable to consult with a local family law attorney for personalized advice and guidance.
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Disclaimer: The information provided in this article is for general informational purposes only and should not be regarded as legal advice. Each case is unique, and it is recommended to seek professional legal counsel for your specific situation.
