All About Legal Separation in South Carolina
Rather than getting legally divorced, many couples enter into a "legal separation" – a period of marital separation that does not lead to outright divorce. In South Carolina, however, there are only two ways you can get a legal separation:
In both of these scenarios, you and your spouse are still legally married, but you live separately and apart. This entails you and your spouse voluntarily living apart and ending the marital cohabitation.
If you were to invoke "separate support and maintenance," this is exactly like a legal separation (financially). Courts will retain jurisdiction over the matter, your assets will be divided in a similar manner as is done for a divorce, legal custody and physical custody orders can be issued, etc. The major difference is that in separate support and maintenance cases, the parties are technically still "married."
Although this distinction may seem trivial, it is often the impetus for parties who, for whatever reason, do not want to get divorced (mainly because of religious beliefs), as they no longer have the same legal obligations they had when they were married, all while retaining control over their assets and other significant issues in their lives .
A couple might decide to separate rather than divorce after weighing their options and considering several factors. For some, religion plays a significant role, as certain denominations do not permit members to divorce. Others simply believe in conserving resources – especially as legal separation in South Carolina is granted on the basis of economic grounds. If a divorce is petitioned for, a couple would need to go through lengthy, expensive processes to have their assets divided and other issues addressed.
Others do not want to deal with the finality of divorce, as doing so would mean dissolving a union that began in love. This group often hopes that legally separating can turn into a reconciliation down the road in the event these issues get resolved.
For some couples, children can make or break the decision to separate rather than divorce. Instead of outright ending the marriage, separating can enable parents to continue in their parental roles without the other spouse around and while getting focused help.
Who Can Get a Legal Separation?
To be eligible for a legal separation in South Carolina, parties must have been married. Spouses are eligible for legal separation if they have been married for any length of time. Unlike temporary spousal support, which is only available to spouses during the course of the marriage, legal separations may occur at any time during the marriage.
Another important requirement for legal separation eligibility is that couples reside within South Carolina for at least one year prior to initiation of the case. Spouses are required to have resided within the state for at least three months following the legal separation request if there are children of the marriage. The intent of this requirement is to ensure that non-custodial parents do not flee the state with children of the marriage and obtain a separation without going through the courts within South Carolina.
The residency requirement does not apply to parties who do not have children of the marriage. In these cases, parties do not have to wait three full months before filing the legal separation documents. Instead, as long as spouses have resided in South Carolina for at least one year, they may file for legal separation at any time following commencement of residency.
Legal Separation Agreement Filing
A legal separation in South Carolina is governed by the same laws as a divorce. Indeed, a legal separation is a divorce and it should not be confused with an informal separation or with a limited divorce that exists in some states. The separation agreement is one of the foundational documents in a divorce or legal separation. A separation agreement can be drafted before the marriage ends by a divorce lawyer in Charleston and it is important to obtain legal advice as to what provisions should be included in the document. The agreement usually includes provisions on how marital property should be divided and usually addresses which party should have the primary or joint custody of any children born of the marriage. It also includes jurisdiction language allowing the other spouse to file for divorce after a certain waiting period. A separation agreement is filed with the court at the time of divorce. For example, a separation agreement could include details regarding equitable division of property, alimony, child custody, child support, visitation, exclusive use and possession of the marital home or a vehicle, health insurance, payment of bills and expenses, life insurance, and estate issues. In short, it sets forth in detail all of the issues that would be in a divorce, but the 50-50 provision ensures that the parties are sticking to the agreement.
Legal Separation Legal Process
The legal process begins by filing a complaint with the court. The complaint, among other things, advises the court of the grounds for separation (i.e., adultery, physical abuse, habitual drunkenness, etc.) and sets forth the particulars of the relief sought (i.e., equitable distribution, alimony and a child support formula). After the complaint is filed, service on your spouse is made by a process server. The defendant has thirty (30) days to Answer the Complaint. After the Answer has been filed or the time for filing the Answer has expired, your attorney will file a Request for a Temporary Hearing. Temporary Hearings are held before family court judges. Family Court Judges have jurisdiction to rule on temporary issues of custody, visitation, support, exclusive possession of the marital home, insurance coverage, retirement benefits, etc. After receiving notice of the hearing date, all parties (including both spouses) are required to attend a mediation session with a family court mediator prior to the hearing. Mediation is an informal process where each spouse has the opportunity to share their position with the mediator and discuss the issues that are in dispute. Depending on the circumstances, mediation can be very effective in resolving a case . If the parties are unable to settle the case at mediation, the issues are presented to the family court judge. The judge weighs the testimony of the witnesses and considers the evidence presented. The judge then makes a ruling. Once the Temporary Hearing has taken place, the case enters the domestic scheduling order process. The Clerk of Court will schedule the case for an "intake conference." At the intake conference, the case will be placed on a docket schedule. This Docketing Order establishes deadlines for the completion of certain tasks, such as depositions, requests for production of documents and interrogatories (i.e., a set of questions). When you’re close to being ready for a trial, a Pre-Trial Conference is held. A panel of judges will meet with all of the parties and their attorneys to discuss the issues in the case and try to resolve it prior to trial. Every family court in South Carolina sponsors a year-round, no-cost, no-pressure, confidential "convenient divorce" program. In Charleston, the program is provided by the Charleston Collaborative for Mediation and Resolution (CCMR). Mediated by administrative office personnel under the authority of the Family Court administrate office, the convenient divorce program is a tool to help those who want to separate or divorce during this time of pro se representation.
Advantages & Disadvantages of Legal Separation
As I have mentioned before, legal separation is rarely used these days in favor of divorce. But it still has its uses.
The South Carolina Code of Laws Annotated discusses legal separation in detail in its title on Domestic Relations. The real gist of it, though, is to spell out under what conditions a legal separation can be had, the obligations of the parties when one has been obtained, and what kind of relief the Court may grant at the time of the legal separation.
Generally, a legal separation is probably best thought of much like a divorce in terms of the obligations a husband and wife have after the fact. Child support and visitation issues must be addressed. Division of assets and liabilities is necessary. There is nothing particularly different about a legal separation from a divorce other than that one of the parties has not requested an absolute divorce from the other.
For the most part, a legal separation will produce the same benefits and limitations as a divorce. There are a few exceptions, though, that I’d like to touch on.
First of all, a legal separation will have a positive effect on child custody and child support because the requirements of being a good parent are clear now that you are separated. The children have a home with one parent or the other. At least one party is living somewhere other than the marital home. Therefore, the guidelines are helpful in establishing what is in the best interests of the children.
The second reason why a legal separation might come in handy is if there is a possibility of reconciliation between the parties. Many times people just need some space before they decide their marriage isn’t worth trying to save anymore. A legal separation provides a way to distance yourself while maintaining the security of being married. In other words, the legal separation, which is a divorce from bed and board, could lead to a reconciliation and then the parties can have the separation procedure dropped and go back to the way it was before.
On the other hand, in the long run, a legal separation is a divorce from bed and board, which is the same result as a divorce. Over time, however, circumstances can change. For example, let’s say that the wife is awarded ownership of the marital home in the final property distribution. A year or more after the legal separation is entered, the husband requests a change in custody of the children. At that time, the wife says that the home has increased in value due to renovations she has made and requests an equitable distribution of the increase in value because a court decree recognized that she had full ownership of it after the separation. The husband might be able to use the increase in value as a sword instead of the shield it was initially.
Family Law Attorney Consultation
Prior to entering the legal separation process, speak with a qualified family law attorney to ensure that the process is appropriate for your situation. Several hurdles need to be cleared prior to entering into a separation agreement; such as identifying property that may be subject to equitable distribution, calculating child support, and confirming that the separation agreement will be sufficient to qualify for a divorce on grounds of one (1) year of continuous separation. I have had cases where the separate estate of one party was larger than the martial estate and the parties were not clear as to what assets were subject to equitable distribution. (this can be a problem if one party spends marital assets that are supposed to be apportioned to the other).
We can assist you in this process. We can help in negotiating an agreement or drafting your separate property agreement . We will assist in identifying the distribution of property along with alimony/spousal support and child support issues. We can assist in preparing the Agreement for you or representing you in drafting the Agreement. The case must conclude with the entry of a final ruling from the Court or a notarized separate support and maintenance agreement. A person can have informal agreements with a spouse to provide for support or the division of property; however, caution should be exercised when entering these agreements. Any agreement should be in writing and notarized. If a party attempts to use an informal agreement as a defense from equitable distribution or alimony that party may have to explain why they didn’t enter into a formal agreement and why the agreement is not an enforceable contract.
