Separation vs. Divorce
In South Carolina, a legal separation is technically called a “Decree of Separate Maintenance” or “Order of Separation and Maintenance.” Separation occurs when the spouses live in two separate locations. It does not qualify as a separation if each spouse is living in the same house but in different bedrooms.
An order of separate maintenance and support is different than a divorce. The order can still provide support payments, determine custody and visitation, and divide the marital property. However, the parties are still married. They cannot marry anyone else, and if one of the spouses passes away, the estate will be divided according to the inheritance laws that apply to married spouses.
While File for Separate Support and Maintenance Instead of Divorce?
An “Order of Separate Maintenance and Support” is also different than being separated. Under South Carolina Divorce Law, the only way parties can obtain a no-fault divorce is to live separately for one year. Spouses do not need an order to live separately, but the order can help parties protect themselves financially and resolve custody and visitation disputes during the separation period. It’s also important to note that the parties do not have to divorce after receiving an Order of Separate Maintenance and Support. The parties can choose to remain separated. The Order of Separate Maintenance and Support will end if the parties divorce, a spouse cohabits with someone else, or if one of the spouses passes away. It can also be modified if there is a substantial change in circumstances.
How to Obtain a Separate Maintenance and Support Order
After filing a Complaint about Divorce and a Summons with the clerk of the Family Court, a spouse can apply for an Order of Separate Maintenance and Support. Once it is filed, the other spouse has 30 days to respond and raise any defense to the legal separation. The parties may request a Separate Support and Maintenance Hearing to determine each party’s rights and obligations during the one-year separation. A Family Court Judge when then hear the arguments and decide the issues or review an agreement if the parties have reached one.
South Carolina Code. Ann. § 20-3-130(c) lists the factors courts use to award separate maintenance and support:
- the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;
- the physical and emotional condition of each spouse;
- the educational background of each spouse, together with the need of each spouse for additional training or education in order to achieve that spouse’s income potential;
- the employment history and earning potential of each spouse;
- the standard of living established during the marriage;
- the current and reasonably anticipated earnings of both spouses;
- the current and reasonably anticipated expenses and needs of both spouses;
- the marital and non-marital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
- custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;
- marital misconduct or fault of either or both parties, whether or not used as a basis for divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
- the tax consequences to each party as a result of the particular form of support awarded;
- the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and
- such other factors the court considers relevant.
Call Our South Carolina Divorce Lawyers Today
While any divorce experience or separation can be overwhelming, having a Divorce Attorney on your side will go a long way in making the situation more manageable. It does not matter what the grounds for your divorce are or whether it is contested or uncontested, it essential that you have competent representation to advocate for your rights. You need a Divorce Attorney that understands the process from the very beginning. We understand what’s at stake, let our experience stand on your side.