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Divorce Versus an Order of Separate Maintenance and Support: Choosing What Is Right For You

If you are contemplating divorce and have talked to your friends from other states, you may have come across the term “legal separation” as an alternative to divorce.  While South Carolina does not recognize legal separation, either spouse may petition for an Order of Separate Maintenance and Support if they are living separate and apart.  

 

What Is an Order of Separate Maintenance and Support?

If a party successfully enters an Order of Separate Maintenance and Support, they are still married and are still entitled to inheritance as a spouse.  However, just as with a divorce, an order of separate maintenance and support can also make determinations as to spousal and child support, award child custody and visitation rights, health insurance, dividing and transferring title to personal property, and order one parent to leave the marital residence. These orders are only temporary in nature, which means a court will still have to adjudicate issues such as post-divorce alimony and child support and division of retirement accounts if the parties ultimately divorce.

 

It is important to note that entering an Order of Separate Maintenance and Support is different from the separation requirement for a no-fault divorce in South Carolina.  Namely, you do not need to enter into an Order of Separate Maintenance and Support prior to a no-fault divorce.  Similarly, you do not necessarily have to divorce after you enter into an Order of Separate Maintenance and Support.  You could potentially remain separated by an Order of Separate Maintenance and Support for years.  This may be the best option for some couples who do not want to get a divorce for various reasons.

 

What are Some Reasons People Opt for a Separate Order?

 

  • Religion: Couples often want to remain married but separated for religious reasons if they have a religious objection to divorce.

 

 

 

  • Children: A major consideration for spouses with children is whether a divorce will be too difficult for their children to handle.  Oftentimes, if a couple’s children are already in high school, they seek an Order of Separate Maintenance and Support as a temporary order to be in place until their children graduate from high school.

 

 

 

  • Personal Preference: Some spouses choose not to get divorced to avoid the financial strain and/or emotions associated with the process.  This happens frequently with neither spouse has an inclination or desire to get remarried any time soon.

 

 

 

  • Insurance Coverage: Spouses may choose to remain married if one spouse is concerned about insurance coverage lapsing upon entry of a divorce judgment.

 

 

 

  • Tax Rates: Spouses may want to remain married to continue paying taxes at a joint return rate.

 

 

 

  • Hopes at Future Reconciliation: Spouses may hope they will eventually “kiss and make up” and want to try spending a trial period apart first.

 

 

If We Come to an Agreement for Our Order of Separate Maintenance and Support, Will the Judge Enter it Automatically?

A South Carolina family court judge will review an agreement made between the parties in the same way a judge would review a final divorce settlement agreement.  Specifically, the judge will want to make sure it is fair to both parties, not unconscionable, and not entered into under duress.  Further, the judge will want to ensure the agreement is not against South Carolina public policy.  Specifically, a judge likely would not enforce a provision of a proposed order that states it is okay for either spouse to engage in sexual relations with a third party while the couple is still legally married, as this is against public policy.

 

How Do I File For an Order of Separate Maintenance and Support?

If you want to petition the court for an Order of Separate Maintenance and Support, you will need to follow these steps:

 

  1. You will first file a Complaint for an Order of Separate Maintenance and Support, a Summons, and a Notice and Motion for Temporary Relief with the court.  These will need to be personally served upon your spouse (the Defendant).

  2. Once your spouse is served, he or she will have thirty days to file an Answer in response to your Complaint and Counterclaim.

  3. The Judge will then conduct a hearing to decide the issues or, if you come to an agreement, review the agreement for fairness, public policy concerns, and unconscionability.

  4. The Order of Separate Maintenance and Support entered by the Judge will govern the issues contained in it until the parties enter a final order such as a final divorce judgment at a later date.

Can an Order of Separate Maintenance and Support Be Modified?

Yes, just as in a modification of a child support order, an Order of Separate Maintenance and Support may be modified upon a showing of a “substantial change in circumstances.”  Most commonly, a party may wish to petition the court to modify a support order when the spouse has had a significant change in income.  For example, if the payor spouse loses his employment, he may seek to modify the order based on this decrease.  However, in South Carolina, courts have discretion to “impute income” to that parent if it finds the parent is voluntarily unemployed or under-employed.  The court most often makes this finding where the spouse has the educational background, skills, and prior job experience to be able to earn more than they are currently earning.

 

When Does an Order of Separate Maintenance and Support Terminate?

There are several terminating factors for an Order of Separate Maintenance and Support, specifically:

 

  1. Divorce;
  2. If the party receiving support under the order begins cohabitating with someone on a continuing, conjugal basis; and
  3. Upon the death of one of the parties.

 

Contact an Experienced Greenville, South Carolina Family Law Attorney!

To ensure you understand your options, you should hire the determined Greenville family law lawyers at Elliott Frazier Law Firm, LLC.  Our skilled family law attorneys can help you determine whether pursuing an Order of Separate Maintenance and Support is right for you.  Contact us today for a case evaluation!

Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.

Your lawyer for your life.

Greenville, Spartanburg, Oconee, Anderson, Pickens, South Carolina Attorney At Law