Legal Separation

Man laying on pillows gazing off to the side

What is Separation in South Carolina? 

It is easier to explain separation in South Carolina if you understand our grounds for divorce. In South Carolina, there are really only four grounds for divorce:

  1. Adultery
  2. Physical cruelty
  3. Habitual alcohol or drug abuse
  4. One year complete separation.

As you can imagine, it is hard for some people who are no longer happy with one another to get along for five minutes let alone a year! So, for those people who know they are likely leading to divorce, but need some court intervention and legal protection while they wait for the year of separation to be complete, there is an action called “Separate Support and Maintenance.” Many people call this a legal separation.

In an action for Separate Support and maintenance, our South Carolina Family Courts are charged with determining things like:

  1. Custody
  2. Child support
  3. Alimony
  4. Division of property
  5. Division of debt
  6. Medical expenses for the children
  7. Health insurance for the children and parties

Except for the granting of the divorce, meaning granting the parties the freedom to marry again, the Family Court will determine all other issues just as it would in a divorce action.

Even though a divorce is not yet obtainable to the parties if the court issues a Final Order of Separate Support and Maintenance, the issues decided therein are FINAL, with the exception of issues involving the children.

Custody, visitation and child support are always modifiable upon a showing of a substantial change in circumstances. See our section on those types of cases.

But the property division and division of debts and waiver of alimony (if applicable) are all absolutely final when the court issues a Final Order of Separate Support and Maintenance. Therefore, this type of action can be just as important as divorce.

Why should I ask for an Order of Separate Support and Maintenance?

Woman curled up on the couch with a man standing in front of her

At Thomason and Pracht, LLC, we are often asked why a person should file for separation. Why not just wait until the year has passed and sought a divorce? That is a very good question but there are some very important reasons why you don’t want to wait:

  1. If you do nothing, your marital estate continues to change until you either sign an agreement with your spouse or until one of you files an action in court. This means that if you are contributing to a 401k, your spouse is continuing to have an interest in the amount that account grows while you wait. If your spouse is prone to acquire debt, you may be at risk of being responsible for more debt that they create during that year. You may be responsible for any medical bills that your spouse incurs. Filing an action puts a “hold” if you will, on the marital estate.
  2. If you need a determination of custody or visitation, you can ask the court for a temporary hearing to decide those issues when you file the action for separate support and maintenance.
  3. The court can quickly set child support to be paid during the time you are waiting for your year to elapse.
  4. The court can order alimony at the outset of action for Separate Support and Maintenance.
  5. You will likely have to go through some of the same motions in an action for Separate Support as in a divorce action so you might as well get started. You can achieve all the same discoveries as you would in a divorce. Properties can be valued and even sold or refinanced.
  6. It is possible that if you and your spouse finally reach an agreement, you can also get a divorce at the final hearing if the proper time has elapsed.

What Are the Requirements To start an action for Separate Support and Maintenance in South Carolina?

  1. The simple answer is: separate. Obviously, you can’t file the action if you are still living together. But what you can do before you separate and what we at Thomason and Pracht suggest you do, is: Get advice from an experienced divorce attorney. It is often helpful to know what is expected of you and what the outcomes may be if you leave your spouse or ask your spouse to leave you.
  2. The next step is to file the action for Separate Support and Maintenance. Most likely your South Carolina divorce attorney will also file a Motion for Temporary Relief, which will be scheduled very quickly.

What is the court procedure for action for Separate Support and Maintenance in South Carolina?

A case filed as an action for Separate Support and Maintenance proceeds just like a divorce case:

  1. The action is filed, most often accompanied by a Motion for Temporary Relief.
  2. The Motion for Temporary Relief is heard and the court makes a temporary determination on issues such as:
    1. Custody
    2. Visitation
    3. Child Support
    4. Restraining orders
      1. Restraining the parties from selling or destroying marital property
      2. Restraining the parties from incurring more debt
      3. Restraining the parties from bothering or harassing the other.
    5. Possession of certain property
    6. Alimony
    7. Attorney fees

Can I Date While I am separated in South Carolina?

Again, the simple answer is “no!” In South Carolina, you are committing adultery if you are having sex with someone other than your spouse, regardless of how long you have been separated and regardless of whether or not you have a written agreement or an Order of Separate Maintenance and Support. However, in some cases, there is no real consequence for dating. It is very important that you talk to an experienced Anderson, SC Family Divorce attorney before you begin dating if you are not divorced!

Why You Need An Anderson, SC Divorce Attorney for an Order of Separation

The South Carolina law offices of Thomason & Pracht, L.L.C., advises everyone to obtain legal counsel for an Order of Separation.  They understand that separations and divorces are extremely stressful times for you and your family. Emotions can run high and at times, you may feel confused and not sure what the best decision is for your individual situation.

Family law can be quite complicated and complex, especially if minor children are involved and you need to figure out issues such as custody, visitation, and child support. By seeking the help of a qualified Anderson, SC Divorce attorney, you will have someone on your side who is your advocate, will help you negotiate the issues involved in your Order of Separation, and will fight for you in court.