Separation

You and your spouse have decided to separate. In South Carolina, there is no such thing as a “legal separation.” When couples separate they can petition the Family Court to issue an Order of Separate Maintenance and Support that will control how they care for their children and handle their finances during the separation. Many couples reach an agreement that can then be approved by the court, others need the court to issue a temporary order. Call us as soon as you make the decision to separate and we will guide you through the process. We will help with crafting your temporary agreement or preparing for a temporary hearing. Remember, it is important to think through every element carefully at the outset. It is critical for anyone seeking a separation to obtain support from a skilled and experienced Charleston attorney.

FAQs

Living separate and apart in South Carolina is living under separate roofs. A couple who stays in separate bedrooms in the same house is not separated.

Separate living spaces on the same property may satisfy the Court’s requirement for separate residences. Every case is difference so you should discuss your living arrangements with a qualified Family Court attorney.

Each party’s circumstances are different. Leaving your home does not mean that you are giving up your property. There may be valid reasons for you to move out of the home or it may be important for you to remain there. We advise consulting with a qualified Family Law attorney prior to making any decisions about moving out of your home.

The South Carolina Rules of Civil Procedure prohibit one lawyer from representing two opposing parties even if the separation is amicable. The parties can hire one attorney to act as mediator, but in this capacity the lawyer/mediator cannot give you legal advice. It is always best for each party to have independent counsel.

South Carolina does not recognize “legal separation.” Individuals may file for an Order of Separate Maintenance and Support, which establishes the rules while living apart. Speaking with a South Carolina family law attorney can help you clarify your options.

For the Family Court to have jurisdiction in South Carolina the parties must be living separate and apart, unless one party can prove that the other party is guilty of a fault ground – adultery, habitual drunkenness and drug abuse, or physical cruelty.  If the complaining party can prove the other is guilty of fault in the divorce, the Court can order the guilty party out of the home pending the couple’s divorce.

Some couples choose to live separately instead of getting a divorce in South Carolina.  They may choose to do so for financial planning, for religious, or for health insurance reasons.  They may have the Court enter a final order on all issues other than divorce so they remain married.

For a no-fault divorce in South Carolina, spouses must live in separate residences for more than  one year without reconciliation. This requirement must be proven in court before the divorce is finalized. This is one of the five grounds for divorce in South Carolina, the others being “at-fault” grounds for adultery, physical cruelty, habitual drunkenness and drug abuse, and desertion.

To prove separation for divorce in South Carolina, spouses must prove they lived in separate residences for one continuous year. The party seeking the divorce must present corroborating evidence. The testimony of a third-party witness (like a friend or family member) can confirm the couple’s separate living arrangement. Documentation, like separate addresses on bills or other records, can also be used as proof.
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The Law

South Carolina does not recognize “legal separation”; a couple is either married or divorced. Married couples who separate may petition the Family Court for an “Order of Separate Maintenance and Support.”  An Order of Separate Maintenance and Support may establish custody, visitation, and support arrangements and the temporary division of certain marital assets and debts until the parties’ case is finalized.

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