Managing the breakdown of a marriage is no easy feat. You and your spouse will be challenged with legal, financial, and emotional hurdles throughout the process. And if you aren’t certain about ending your marriage, a simple separation doesn’t provide you with legal protection.
In South Carolina, the concept of separation has legal nuances. If you and your spouse live separately while deciding to remain married or as a requirement of your no-fault divorce, you should understand your legal rights, obligations, and potential consequences.
At Melone Hatley, P.C., our experienced Columbia separation attorneys will help you understand how separation works in South Carolina and ensure you are legally protected until you make your next move. Contact our Columbia family lawyers for a free consultation.
There is No Such Thing as Legal Separation in Columbia, South Carolina
When a couple separates, they are still married and bound by marital law. However, as they move toward living separate lives, potential issues can impact their emotional and financial security and the well-being of their children.
These issues may include who has rights to their marital assets and is responsible for their financial obligations, who has custody of their children and how the children will be supported, whether one spouse will require financial support during the duration of the separation, or various other aspects of moving from a married life to a separated life.
South Carolina does not have a legal status known as “legal separation.” However, married partners can legally protect themselves while deciding to live separately or while preparing to file for their no-fault divorce.
A Columbia divorce attorney from our team can help get this process started.
Separation as Grounds for Divorce in Columbia, South Carolina
In South Carolina, the courts recognize fault-based and no-fault divorce. While many states recognize an “irretrievably broken” marriage as grounds for a no-fault divorce, South Carolina requires separation before filing for a no-fault divorce.
South Carolina Code of Laws § 20-3-10 requires a couple to live “separate and apart” for at least one year before seeking a no-fault divorce. Separate and apart means they must live in separate residences with no cohabitation.
Any instance of cohabitation will reset the one-year clock. However, despite living apart, separated couples are legally married until a final divorce decree is issued. This can expose both parties to legal and financial vulnerabilities.
Columbia Separation
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839-213-4545Separate Maintenance and Support in South Carolina
In South Carolina, a Separate Maintenance and Support order is a temporary court order that protects each party’s interests when they decide to live separately pending their next move.
While it does not cover issues concerning a final divorce, an Order for Separate Maintenance and Support will address how each party will divide their marital assets and debts, share child custody and visitation, who will pay child support, and whether spousal support may be warranted during their separation.
A Separate Maintenance and Support order will remain in effect until the matter is resolved through a final divorce decree or the couple’s reconciliation.
How Does Separate Maintenance and Support Work in South Carolina?
For the court to consider a Separate Maintenance and Support order, one spouse (the Plaintiff) must file a complaint saying they no longer live with their spouse and address the following:
- Whether spousal support will be required during the period of separation
- Which parent will have physical and legal custody of the children, and how visitation will be arranged
- How much child support the noncustodial parent will pay toward their children’s financial needs
- How marital property will be temporarily divided and financial obligations paid
If both parties can reach a mutual agreement regarding these issues, the court will review it to ensure it is fair to both spouses, in the best interests of their children, and is compliant with South Carolina law.
What Are the Benefits of Filing an Action for Separate Support and Maintenance Before Seeking a Divorce in Columbia, SC?
A simple physical separation may seem like the easiest solution for a couple who wants some time apart or pending filing for a no-fault divorce. But much can happen during that year.
A separated couple is still legally married, and what one party does during that year apart will affect both spouses. For instance, one spouse may try to conceal marital assets or accumulate debt without the other party’s knowledge. Spouses may disagree about custody, time spent with their children, or how much financial support they will need.
Filing an action for Separate Support and Maintenance in South Carolina provides multiple benefits and legal protections, regardless of whether the couple files for divorce.
Establishes Financial Support
A Separate Support and Maintenance order ensures financial support is in place during the separation period. This is critical when one spouse has been financially dependent on the other during the marriage.
The court considers factors such as the length of the marriage and both spouses’ financial needs and earning capacities when determining this support.
Addresses Child Custody and Support
A Separate Support and Maintenance action addresses who will be the primary custodial parent and where the children will live, the noncustodial parent’s visitation arrangements, and the amount of child support that will be paid while the couple is separated.
Similar to child custody determinations during the divorce process, the court prioritizes the children’s best interests when deciding temporary custody, visitation, and child support for the duration of the separation.
Addresses Temporary Property Division and Protects Assets
While an Order for Separate Maintenance and Support is temporary and will not be the final word on marital property division in a divorce, it provides enforceable orders regarding the use of marital assets during the separation.
This ensures both parties are protected and prevents either spouse from accruing more debt or disposing of marital assets without the other’s knowledge.
Provides Legal Protections During the Separation
A Separate Support and Maintenance Order provides critical legal protection for both spouses during the separation period. This can be especially crucial if one spouse is concerned about possible misconduct by the other.
An Order for Separate Support and Maintenance is a court order that allows enforcement concerning financial misbehavior, noncompliance with custody and support arrangements, and other aspects of the couple’s separation.
Establishes the Date of Separation, Providing a Smoother Pathway to Divorce
For couples who go on to seek a no-fault divorce, an Order for Separate Support and Maintenance helps formalize the separation grounds and provides a clear legal record of when the couple’s separation began.
Allows Time for a Couple to Consider Reconciliation
Filing for Separate Maintenance and Support does not mean a couple must proceed with a divorce. For many couples, it allows them to create a safe, legal space during their separation, establishing clear and legally-binding temporary financial and custody solutions while they work on their marriage or proceed with a divorce.
What Happens if You Decide to Reconcile?
At the end of the one-year separation period, the couple can decide whether to move forward with a no-fault divorce, divorce on fault-based grounds, or reconcile.
For couples who decide to proceed with a divorce action, the process will address final issues related to property division, child custody and support, and spousal support, which will be reflected in the final divorce decree.
However, for couples who use this time to address issues in their marriage and reconcile, it is important to remember that in South Carolina, any reconciliation will stop the one-year separation requirement clock for a no-fault divorce. If the couple chooses to move forward with a divorce after a reconciliation, that clock will start over again.
Getting Experienced Legal Representation in Columbia, SC, When You Are Considering a Separation
Separation can be a significant step for any couple. While South Carolina does not offer a legal separation framework, an Order of Separate Maintenance and Support provides essential guidelines and legal protections for both spouses while living apart.
Whether you are taking a break from your marriage in the hopes of reconciliation or you are fulfilling your separation requirement for a no-fault divorce, understanding your vulnerabilities and legal options ensures that you can make informed decisions.
At Melone Hatley, P.C., our experienced separation attorneys will ensure your rights are protected during your separation and throughout your divorce. Call us or schedule a free consultation through our online contact form today.
