A Break from Marital Turbulence or Personal Beliefs: Exploring Legal Separation in South Carolina
Are you considering a legal separation in South Carolina? Whether it’s due to personal beliefs, a desire for a break, or as a prerequisite to obtaining a no-fault divorce, you likely have numerous questions about the legal aspects and implications of this decision. At Garrity Traina, we understand the emotional challenges of such a situation. Our team is here to provide answers and support you through this tough time. In this article, we’ll address some commonly asked questions about legal separation in South Carolina.
Is Legal Separation the Same as Divorce?
No, legal separation and divorce are different concepts. While some states recognize legal separations as a formal parting of ways that keeps a marriage intact, South Carolina courts do not. In South Carolina, couples are either legally married or unmarried, with no middle ground. When spouses separate in South Carolina, it simply means that they are living apart from one another in different homes.
However, South Carolina family courts issue Orders of Separate Support and Maintenance as an alternative to legal separation. These orders outline how separating parties will handle important issues such as property division, alimony, custody, and child support until they obtain a divorce order that legally terminates their marriage. It’s essential to note that a couple with an Order of Separate Support and Maintenance remains legally married until the court grants their divorce order.
The Benefits of Legal Separation Pending Divorce
While South Carolina may not officially recognize legal separation, pursuing a legal separation pending divorce can offer several benefits. An Order for Separate Support and Maintenance can protect the financial interests of each spouse and the financial needs of any minor children during the separation period.
Waiting for the requisite one-year separation period to obtain a no-fault divorce may seem tempting. However, many things can occur during this time. Either party might accumulate debts, attempt to conceal marital assets or require financial support for young children. With a temporary separation order, you can start addressing these issues and finding solutions that cannot be postponed until the final divorce hearing.
When you file an Order for Separate Support and Maintenance, you can also request a divorce as part of that action. However, you must first meet the requirement to live separate and apart for one year or prove the existence of one of the following grounds for a fault-based divorce:
- Habitual intoxication
- Physical cruelty
Understanding an Order of Separate Support and Maintenance
An Order of Separate Support and Maintenance is a temporary legal order that outlines how separating spouses handle finances, child-rearing, and other essential matters while separated, regardless of whether they intend to pursue a divorce. These orders play a crucial role in many divorces since South Carolina requires parties to live apart for at least one year to obtain a no-fault divorce.
To fulfill the one-year separation requirement, spouses must live in different locations. Merely sleeping in separate beds or different rooms within the same household does not constitute living separately in a legal sense. While couples do not necessarily need to obtain Orders of Separate Support and Maintenance to begin living separately, these orders often help ensure that separating spouses protect their best interests before the divorce.
When attending hearings to seek Orders of Separate Support and Maintenance, separating couples can request the court’s intervention in addressing various issues, including:
- Division of marital property, assets, and debts
- Determining who will remain in the marital home
- Child custody, visitation, and child support
- Alimony arrangements
- Vehicle ownership and title transfers
- Control of joint accounts
- Family health insurance maintenance
- Need for restraining orders
Seeking an Order of Separate Support and Maintenance
Either party can pursue an Order of Separate Support and Maintenance in South Carolina if they live apart or have grounds for a fault-based divorce. The process of obtaining the court order typically follows these steps:
- One spouse, known as the “plaintiff,” files a Summons and Complaint for the Order of Separate Support and Maintenance.
- The plaintiff also submits a Notice and Motion for Temporary Relief.
- The plaintiff serves the other spouse, referred to as the “defendant,” or their attorney with the Summons, Complaint, and Notice and Motion for Temporary Relief.
- Once served, the defendant has 30 days to respond to the court.
- After the defendant responds or 30 days elapse, a family law judge presides over the case, resolving outstanding issues or approving the order. The order remains in effect until the parties obtain a final divorce order.
Legal Separation vs. Divorce: Key Differences
One crucial distinction between legal separation and divorce in South Carolina is that the state still considers a separated couple legally married. Therefore, partners who have separated but not divorced cannot remarry, regardless of whether they live apart. It’s important to note that dating others during legal separation could potentially provide grounds for an at-fault divorce based on adultery, which could impact your legal case.
How a South Carolina Family Law Attorney Can Assist You
Filing for divorce or seeking legal separation in South Carolina can be a complex and emotionally challenging process. However, having a knowledgeable family law attorney by your side can make it considerably easier. If you have questions about legal separation in South Carolina or wish to discuss your case with a lawyer, contact Garrity Traina today for your initial consultation.
Visit Our Family Law Law Offices