( 300+)Before a couple can receive a no-fault divorce in South Carolina, they must live separate and apart for at least a year. This separation requires careful planning; however, as well as a consideration of what you want. Each situation is different. For example, a couple with children will need to divide custody of the children for the duration of the separation. We encourage anyone considering divorce to hire an experienced Greenville divorce attorney to help them create a solid South Carolina separation agreement.
Legal Separation in South Carolina
Technically, our state does not recognize legal separation. However, a couple can certainly live apart if they choose, and they must live separately and apart for at least one year if they want a no-fault divorce. That is the only way to obtain a no-fault divorce in South Carolina.
You will still be legally married during the separation. That factor can matter when it comes to certain government benefits or other legal requirements.
Most of our clients who seek legal separation hope to eventually divorce, so living separate and apart is a necessary step to complete on the way to dissolving their marriages.
What Does a Separation Agreement Contain?
When a couple splits, there are many legal and financial issues they must deal with. Whether you are divorced or not, couples often need to decide who will stay in the home or use a car. If they have children, they also need to divide that child’s time between the parents.
Couples may decide these issues themselves and draft a separation agreement, which should contain the following at a minimum:
- Child custody. Identify who the children will live with throughout the year and who has legal authority to make decisions for them.
- Child support. One parent may need to pay child support to the other for the duration of the separation.
- Alimony. One spouse might make spousal support payments to the other for the duration of the separation to either maintain the marital standard of living or to help the other obtain sufficient work experience to become self-supporting.
- Finances. You should decide who will continue to pay the mortgage, credit card bills, and other expenses, as well as who will have access to checking or savings accounts.
- Property. A couple might have to divide property at this stage as well. If a couple has one car, you need to decide who will keep it.
You and your spouse can draft an agreement, but it’s always helpful to use a Greenville SC family lawyer. The best agreements are detailed because a lawyer will know what issues tend to arise during separation.
What is an Order of Separate Support and Maintenance?
An Order of Separate Support and Maintenance is a judicial order that can be based on a final court order or agreement of the parties.
What is the initial procedure for a Separate Support and Maintenance case?
One spouse usually files a Summons and Complaint for the Order of Separate Support and Maintenance, along with a Notice and Motion for Temporary Relief. These documents are served on their spouse, who has a chance to reply. If the parties can come to an agreement, then the Temporary Hearing can be used to create a Temporary Order of Separate Support and Maintenance. If they cannot agree on temporary basis, then the judge must decide and a temporary order is issued.
Couples can then get to work negotiating the terms of their separation. They can work with lawyers or attend mediation, but the best way to find common ground is to work diligently and know what you want.
When a couple agrees and signs an agreement, the judge will review it and most likely agree with the terms contained in it. The agreement then gets folded into an order of separate support and maintenance.
You can certainly separate without an order of this kind. Nothing prevents one spouse from getting in the car and driving off. But a judicial order will protect your interests; it is backed by the authority of the court. If your spouse refuses to pay alimony as agreed to, then you can go to court and ask the judge for help.
What Are The South Carolina Separation Rules?
Before you can get a no-fault divorce, you must live “separate and apart” from your spouse for at least one year. In some other states, a couple can immediately claim irreconcilable differences and petition for divorce, but South Carolina requires living separately.
There are rules you should know:
- You and your spouse must live in different residences. This might be hard if money is tight, but one spouse needs to move out of the home. You can’t simply sleep in different bedrooms.
- You can “break” the one-year period by moving back in together, even briefly. The clock will need to start all over again.
- You should not start a new romantic or sexual relationship until a judge either approves your agreement or enters a permanent order of separate maintenance and support. If you jump the gun, then you have committed adultery, and you can be barred from receiving alimony.
South Carolina places obstacles in the path of couples seeking divorce. Work with a lawyer who has experience with drafting a South Carolina separation agreement.
Mistakes to Avoid with Separation
We have seen people make certain mistakes, so we encourage anyone seeking separation to do the following:
- Avoid using sample separation agreements that you find online. These agreements might not work for you or even be legally binding in South Carolina.
- Do not stay in the same house. One spouse needs to move out to obtain an order of separate support and maintenance.
- Don’t assume you are no longer married because you are living separately. You are still married in South Carolina.
- Avoid rushing through the drafting process. A solid separation agreement takes time to write and negotiate all the particulars. You want an agreement that protects your rights in the event of future disagreement.
Seek the Help of an Experienced South Carolina Attorney
Elliott Frazier—Family, Personal Injury, & Car Accident Attorneys, LLC, can help anyone seeking to separate or divorce. Our team will strive to protect your rights and interests while drafting a South Carolina separation agreement with your spouse’s legal counsel. Our firm can also advise you on how to avoid running afoul of South Carolina’s separation rules. Contact us to schedule a private consultation.
