Few family law terms vary as much in meaning from state to state as “legal separation.” Everybody knows what it means to be married; everybody knows what it means to be divorced. Separation is less clear. To understand what people in South Carolina mean when they refer to “legal separation,” it is helpful to begin with the state’s divorce laws.
All fifty states allow residents to obtain a “no-fault” divorce. Most states, including South Carolina, also allow residents to file for divorce on fault grounds. Fault grounds for divorce in South Carolina are:
As grounds for divorce go, these are fairly narrow compared to many states. For example, mental cruelty and emotional abuse are not grounds for divorce. If one or both spouses wants a divorce, but cannot allege any of the above grounds, a no-fault divorce is their only option.
However, unlike some states which simply allow residents to immediately file for divorce based on “irreconcilable differences” or similar language, South Carolina imposes some restrictions on no-fault divorce. One of these is that the couple must live “separate and apart” for one year prior to filing for divorce.
Living separate and apart has a literal meaning: the couple must live in separate households. Living in different rooms, or even on separate floors, of the same house doesn’t count. Of course, actually living separately creates its own set of issues. How will the children spend time with each parent? Who will pay the mortgage on the marital home? What happens to the joint bank account and other property while the couple is running out the clock before they can file for divorce?
A couple may need to live separately while they are waiting to file for divorce, but that does not constitute a “legal separation.” Nor is there any legal action in South Carolina to create a status called legal separation. Put simply, from a legal standpoint, you are married until you are divorced.
If that’s the case, why are we even discussing legal separation? Because there is something called an Order of Separate Maintenance and Support in South Carolina, and that is what most people are talking about when they refer to “legal separation.”
As long as they are living separately, either spouse can file an action for an Order of Separate Maintenance and Support. (A spouse who is seeking divorce on fault grounds can also request an Order of Separate Maintenance and Support.)
Some couples who have no immediate plans to divorce may also want an Order of Separate Maintenance and Support. They may be living apart but opposed to divorce on religious grounds, or “testing the waters” to see if they want to divorce or get back together. Getting an Order of Separate Maintenance and Support does not have to lead to divorce if neither spouse wants it to.
An Order of Separate Maintenance and Support can answer the questions raised by the need to live separate and apart while you are waiting to file for divorce. It can address:
It is not necessary to have an Order of Separate Maintenance and Support in order to live separately, but it is usually helpful to have each spouse’s rights and responsibilities during the separation spelled out and formalized in a court order.
As with a divorce settlement agreement, couples can set the terms of their own Order of Separate Maintenance and Support; they may be more willing to abide by the terms of an agreement they created. The Family Court will approve the separation agreement the couple has made so long as it is fair. Creating such an agreement can help make divorce easier when the time arrives.
The couple will likely have already separated their property and closed their joint accounts, as well as allocating any debt they accumulated during the marriage. If custody and visitation arrangements are working well, the couple may decide to continue them; if not, they have the opportunity to tweak those arrangements to better suit the children’s needs. Of course, if the couple cannot agree on one or more issues in their separation, the Family Court will make a determination.
Living separately with an Order of Separate Maintenance and Support may look and feel like divorce; after all, you’re in separate households, with a legal order that formalizes your arrangements. But you are still married under the law. Getting romantically involved with another person is a bad idea, and could cause your spouse to file for divorce on the fault ground of adultery. Also, adultery is literally a crime in South Carolina, punishable by jail time (though in practice it is rarely prosecuted).
Because you are still legally married, if you were to die during the time you are separated, your spouse might still inherit from you. Even if you prepare a new will and disinherit your spouse, they may still be entitled to a portion of your estate (the “elective share”) under South Carolina law. However, you can put a provision in an Order for Separate Maintenance and Support agreeing that you will both waive your right to claim an elective share of the other’s estate.
If you would like to know more about divorce in South Carolina or about seeking an Order of Separate Maintenance and Support, please contact Brinkley Law Firm.