Legal Separation vs. Divorce: What’s the Difference?

Walking the road of matrimony isn’t always bliss. Of course, there will be quarrels and dust-ups among spouses; we are human, after all. But what happens if you find yourself at your wits’ end but not quite ready to call it quits? In South Carolina, there’s an alternative for feuding spouses apart from the black-and-white options of staying together or divorcing, and it’s akin to a legal separation.

Does Legal Separation Exist in South Carolina?

The answer is no, legal separation doesn’t formally exist under current law. But there is a legal avenue that is a functional equivalent. Before we dive in, it’s important to note the differences between living separately and moving forward with a divorce. In the eyes of the law, you are either married to or divorced from your spouse. So, while there is no such thing as a “legal separation” in South Carolina, family courts can help couples who need a little space to figure things out.

The tool family courts use to achieve this goal is called an “Order for Separate Maintenance and Support.” People may refer to “legal separation” in South Carolina because the requirements for Orders for Separate Maintenance and Support are similar to what spouses living, well, separately would need to consider and plan.

Divorce vs. Orders for Separate Maintenance and Support

Not ready to invoke the “D-word” but need some time apart? An Order for Separate Maintenance and Support can create and maintain consistency during a turbulent time. Let’s talk through what these orders are and how they differ from divorce.

First, let’s talk divorce. It is, by definition, the final dissolution of a marriage; after the court enters a final order in a divorce proceeding, the legal status of the marriage is no longer. Spouses are no longer bound to one another and are free to remarry. But, they no longer enjoy certain benefits they had as married partners, such as a shared health insurance plan. On the other hand, couples who choose to give their marriage room to breathe in an effort to save it can seek an Order for Separate Maintenance and Support. While these orders are by no means mandatory, they help establish baselines and standards for reconfiguring finances, child care and support schedules, and general “life stuff.”

Who Asks for an Order of Separate Maintenance and Support?

Once you are living apart in separate residences, either spouse can petition the court for the order. It’s worth noting, too, that a spouse who is seeking a divorce can ask the court to establish an Order of Separate Maintenance and Support.

This strategy is tactical and helps spouses to gain financial stability for themselves and their minor children during the “waiting period” restriction imposed by South Carolina law. This restriction provides that, in no-fault divorces, spouses must live separately for a full calendar year before filing for divorce. So, these orders are crucial for formalizing financial arrangements for spouses and their minor children during both the waiting period and while the action is pending.

Areas Addressed by Orders for Separate Maintenance and Support

Without doubt, the most critical issues addressed by these orders deal with minor children: Naming the spouse who will be the primary caregiver and establishing visitation schedules and child support payments.

The other issues commonly addressed lean towards the purely financial, and include:

1. Alimony, if any;
2. Joint health insurance coverage continuation, if any, and the spouse responsible for premiums;
3. Naming which spouse shall retain the marital home and who shall move out;
4. Expenses related to the marital home, including mortgage payments;
5. Division of marital assets and relevant title transfers;
6. Allocation between the spouses of marital debt; and
7. Closure of joint accounts.

The power of Orders for Separate Maintenance and Support

While some couples may be able to reach an agreement between themselves amicably on how their new, separate lives will look and operate without formalization, there would be no way to enforce the terms of such an agreement.

Orders of Separate Maintenance and Support, on the other hand, offer broad protection for separating spouses because they are formal, legally binding orders that outline each spouse’s responsibilities and obligations during the separation period. Put simply, they have teeth. If a spouse willfully doesn’t comply with an Order of Separate Maintenance and Support, the injured spouse can seek to hold the noncompliant spouse in contempt. And, like divorce decrees, these orders can be modified upon a showing of a substantial change in circumstances, like the loss of employment or serious illness.

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.