How Do You Get a Legal Separation in South Carolina?
Technically, you don’t, because there is no such thing as a “legal separation” in South Carolina. You can, however, get a divorce on the grounds that you have been separated for at least one year.
You can also file for an Order of Separate Support and Maintenance, which is South Carolina’s closest equivalent to a “legal separation,” and the court can order that your spouse pay spousal support, child support, or resolve other issues that cannot wait until a divorce is final.
In this article, we will discuss:
- Why you cannot file for a legal separation in South Carolina,
- When separation is grounds for divorce, and
- When you may need to ask the court for an order of separate support and maintenance.
How Do You File for a Legal Separation in South Carolina?
In many cases, a couple may need to separate for a time while they consider their options, or they may not want to divorce for any of a number of reasons.
In many other states, “legal separation” is the answer for a couple that no longer wants to live together but doesn’t want the finality of a divorce. In South Carolina, you cannot file for a “legal separation,” but you can ask the family court to issue an Order of Separate Support and Maintenance that resolves issues like alimony and child support while the couple lives apart.
Also, although you cannot file for a legal separation in South Carolina, you can get a divorce based on one year of continuous separation.
Divorce Based on One Year Continuous Separation/ No-Fault Divorce
If you have been separated from your spouse for one year or longer, the family court can grant a “No-Fault Divorce.”
How does the court know you have been separated for a year or longer if there is no “legal separation?” How do you prove separation in South Carolina?
In addition to the parties’ testimony, you will need at least one witness who can corroborate that you have not lived with or reconciled with your spouse for at least one year, and, if there are no other issues that would prevent the divorce, the court will grant a final divorce decree.
Orders of Separate Support and Maintenance in South Carolina
An Order of Separate Support and Maintenance is often issued following a temporary hearing in a divorce case – after a party has filed for divorce – to resolve the issues that cannot wait for a final divorce hearing like who will live in the family home, who drives the family vehicles, who pays what bills, and whether any support is paid.
You can also file for an Order of Separate Support and Maintenance without filing an accompanying divorce action, to resolve issues while the parties are living separate and apart when they do not wish to file for divorce. This is South Carolina’s equivalent to filing for a legal separation.
How Do You File for an Order of Separate Support and Maintenance?
To file for a legal separation in South Carolina (to file for an Order of Separate Support and Maintenance but not for divorce), you will need to:
- File a Summons and Complaint for an Order of Separate Maintenance and Support as well as a Notice and Motion for Temporary Relief to schedule a temporary hearing,
- Serve the pleadings on the defendant spouse, or their attorney, who will then have 30 days (unless an extension is granted) to respond with an Answer (and any Counterclaims),
- File and serve a Reply to any Counterclaims once the Answer has been filed, and
- Schedule a temporary hearing where the court will decide the issues temporarily until a final hearing is scheduled.
In many cases, the parties will then negotiate a Separation Agreement and submit a proposed Order of Separate Maintenance and Support to the family court. If the court finds that the agreement is fair to both parties and in the best interests of any minor children, the court will approve and sign the Order.
If the parties do not reach an agreement and mediation is unsuccessful, the Court will schedule a final hearing, hear testimony, and decide the issues for the couple.
What Can the Family Court Do in an Order of Separate Support and Maintenance?
At a temporary hearing in a divorce action, or in an Order of Separate Support and Maintenance filed as a separate action, the court can resolve the immediate issues affecting the parties including:
- Alimony, after considering the factors listed in South Carolina Code § 20-3-130(C),
- Child custody, after considering the factors listed in South Carolina Code Section 63-15-240(B),
- Child support, based on the South Carolina Child Support Guidelines and the factors listed in South Carolina Code § 63-17-470,
- Who will live in the family home and drive the family’s vehicles,
- Who will keep marital assets, bank accounts, and personal property,
- Who will be responsible for the marital debt, mortgages, and other expenses,
- Who will maintain health insurance for the children, and
- Whether restraining orders must be issued for the protection of one of the parties or children.
Questions About Legal Separation in South Carolina?
If you have questions about legal separation in South Carolina, call an experienced South Carolina divorce attorney now who can answer your questions and help protect your rights during the process.
Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.
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