Legal Separation Does Not Exist in South Carolina. Do This Instead.
Attorney Anne Frances Bleecker is the founder of Bleecker Family Law, with decades of experience focused on South Carolina family law, including divorce, separation, child custody, and complex Family Court matters. She founded the Charleston-based firm in 1997 and has also served in several civic leadership roles, including as a member of Charleston City Council.
Key Takeaways
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When a marriage is no longer working, divorce is not always the immediate goal. You may want to live separately, establish financial support, create a parenting plan, or protect your financial interests without ending your marriage.
So, can you get a legal separation in South Carolina?
The short answer is no. South Carolina does not recognize a legal status called “legal separation.” Instead, spouses who need court orders while living apart may pursue an Order of Separate Maintenance and Support through the Family Court.
This allows the court to establish certain rights and responsibilities without ending the marriage. You remain legally married unless and until a divorce is granted by the Court.
What is an Order of Separate Maintenance and Support?
An Order of Separate Maintenance and Support can provide structure for spouses who are separated but are not yet seeking — or may not intend to seek — a divorce.
Depending on the circumstances, a separate maintenance and support case may address:
- Spousal support
- Child custody* and visitation
- Child support
- Use of marital property
- Marital debts and other financial obligations
- Who remains in the marital home
- Other issues that need to be resolved while the spouses live separately
For parents, this can be especially important, since simply moving into separate homes does not establish where the children will live, when they will spend time with each parent, or how expenses will be handled. In these delicate moments, a Family Court order can provide stability with clear, enforceable terms when an informal arrangement is not enough.
However, no matter the circumstances, one distinction should remain clear: separate maintenance and support does not end the marriage.
*To learn more about how to file for custody in South Carolina, read our full guide.
How do you legally separate in South Carolina?
Because there is no standalone filing for legal separation in South Carolina, spouses typically seek relief through an action for separate maintenance and support.
The process generally begins when one spouse files a Summons and Complaint for an Order of Separate Maintenance and Support in Family Court. The other spouse is then served and has an opportunity to respond. Depending on the case, the court may also consider requests for temporary relief while the final issues are being resolved.
In a no-fault situation, spouses must live apart for a separate maintenance and support action. Spouses cannot seek separate maintenance while living together if there is no fault.
That does not mean you must first establish one of the statutory grounds for divorce. Separate maintenance and support may be available even when neither spouse is seeking an immediate divorce, but fault allegations can affect the relief available when the spouses have not yet physically separated.
Because a separate maintenance case can involve many of the same issues as a divorce, it is important to understand what you are asking the Family Court to decide before filing.
Do you have to be separated for one year in South Carolina?
No, you do not need to be separated for one year before seeking separate maintenance and support.
Instead, the one-year requirement applies to South Carolina’s no-fault ground for divorce, wherein a spouse may seek a divorce after the couple has lived separate and apart without cohabitation for more than one year.
South Carolina also recognizes four fault-based grounds for divorce:
- Adultery
- Desertion for one year
- Physical cruelty
- Habitual drunkenness, including habitual use of drugs
The one-year separation requirement is therefore not a general waiting period that prevents spouses from asking the Family Court to address support, custody or other issues while they are separated.
What happens to marital property if you separate?
Physical separation does not automatically divide marital property.
South Carolina is an equitable apportionment state. Simply put, the Family Court divides marital property based on statutory factors rather than automatically splitting marital property equally.
That answers another common question: “Is South Carolina a 50/50 state for divorce?” No, because equitable does not necessarily mean equal.
When equitable apportionment is properly requested in a divorce or separate maintenance and support proceeding, the court will consider statutory factors including:
- The length of the marriage
- Each spouse’s contributions to the marriage and marital property
- Each spouse’s income and earning potential
- Nonmarital property
- Retirement benefits
- Tax consequences
- Existing debts and support obligations
- Other relevant circumstances
Because significant property rights can be addressed during a separate maintenance and support case, separation should not be viewed as merely an informal pause before divorce. The decisions made involving property, debt, and finances during this time can have lasting consequences.
What happens to a separate maintenance order if you later divorce?
Divorcing after the fact may involve many of the same issues addressed during separation, but the effect of an earlier order depends on what the Family Court previously decided.
Temporary orders may govern matters such as support, custody, use of the marital home, and payment of expenses while a case is pending. In other situations, spouses may reach a final agreement or the court may enter a final order addressing property or other issues even though the marriage itself remains intact.
If you later pursue divorce, those earlier agreements and orders can become important. That is one reason to consider the long-term implications before agreeing to financial, property or parenting terms during separation.
So, should you pursue an Order of Separate Maintenance and Support or divorce?
The answer will differ for every family. For example, separate maintenance and support may make sense when you intend to remain married for the time being but need enforceable terms governing your finances, children, property, or living arrangements.
On the other hand, divorce may be more appropriate when the goal is to legally end the marriage and resolve the issues associated with its dissolution.
Your plans can also change over time. Some spouses initially pursue separate maintenance and support and later decide to divorce, while others remain married after resolving the issues created by living apart.
The important thing is to understand how each option may affect your family, finances, and legal rights before you file a case or sign an agreement.
Working with a local family law attorney who is experienced in divorce and separation cases can help you navigate these complex issues with confidence at every step.
To learn more now, read our blog: “What To Expect When Filing for Divorce in South Carolina”
Find compassionate counsel you can trust at Bleecker Family Law.
Whether you are preparing to separate or considering divorce, Bleecker Family Law’s team of experienced family lawyers can help your family find the best possible outcome. Contact us today to speak with a team member and explore our website to view our services.
Frequently Asked Questions
1. Is legal separation available in South Carolina?
South Carolina does not have a legal status called “legal separation.” Instead, spouses who need court orders while remaining married may pursue an action for separate maintenance and support.
2. How do I get legally separated in South Carolina?
You do not file for a legal separation. A spouse may file an action for separate maintenance and support in Family Court. Depending on the circumstances, the case can address financial support, visitation, child custody and support, and marital property.
3. Do I have to wait one year to file for separate maintenance and support in South Carolina?
The one-year requirement applies to a divorce based on living separate and apart without cohabitation. It is not a waiting period for seeking separate maintenance and support.
4. What is an order of separate maintenance and support?
It is a Family Court order that can establish financial and family-related rights and obligations between spouses who are living separately.
5. Is South Carolina a 50/50 state for divorce?
No. South Carolina is an equitable apportionment state. South Carolina Family Courts do not automatically divide marital property equally. The Family Court considers multiple factors when determining how marital property should be equitably divided.
6. What are the grounds for divorce in South Carolina?
South Carolina law provides four grounds for divorce, including adultery, desertion for one year, physical cruelty, habitual drunkenness and living separate and apart without cohabitation for more than one year. You can explore the grounds for annulment and prohibited marriage in South Carolina in our blog.