What is SC Legal Separation?
Legally separating in South Carolina represents a significant juncture during which a married couple separates effectively while remaining legally married. The process resembles divorce in some respects, but there are important differences.
It is worth noting that South Carolina law does not define separation or legally separate. Instead, the concept of separation exists only as an incident to divorce or of intending to obtain a divorce. A period of separation is technically the period between the date of separation (when the parties are no longer living in the same room, notwithstanding reconciliation attempts) and the date of commencement of an action for divorce. A legally separation intending to divorce exists when one spouse intends to end the marriage.
In practical terms, the duration of separation indelibly shapes the grounds for divorce in South Carolina. After one period of separation of one year , if one spouse signs and delivers to the other a notarized document stating that the spouse no longer wishes to continue the marriage, then the couple has an "irreconcilable differences" divorce. For "fault" reasons (adultery, unreasonable behavior, physical cruelty, and others), a spouse can file for divorce after a period of separation of only one year if the divorce is sought by a spouse who was not guilty of the fault.
Separation of the marriage is pivotal in regard to grounds for divorce. Separation affects other matters as well, such as property rights and obligations, and child custody and support. Often, separation is a precursor to reconciliation. The parties reconcile and either resume the status quo of the marriage or file for divorce. These situations all underscore the importance of obtaining competent advice from a South Carolina family law attorney.
SC Legal Separation Grounds
In South Carolina, the law allows for several grounds on which you can file for legal separation. These grounds are similar, if not identical, to the state’s grounds for divorce. These grounds are referred to as "fault" grounds because you must prove the fault of your spouse to be granted a legal separation under them. The other forms of separation are either "no-fault" or considered "written separation agreement" (which is essentially a no-fault one). They are:
Adultery. Adultery is when one spouse fails to honor the marriage vow of sexual fidelity and engages in sexual relations with someone other than their spouse. Adultery is a permanent bar to spousal support in South Carolina.
Desertion. South Carolina law defines desertion as willfully without cause abandoning and forsaking one’s spouse or when one spouse voluntarily withdraws from the other and remains away so long as to cause the legitimate obligations of the marriage to become wholly unfulfilling and unattainable. Desertion must last for the statutory time period of one year after which the deserted spouse may be granted a legal separation.
Cruel and Inhuman Treatment. South Carolina law defines cruel and inhuman treatment as domestic violence as defined under South Carolina law or other wrongfuls acts that destroyed or endangered health, safety or morals and rendered the marital relationship unsafe or unendurable; or conduct by one spouse that creates an immediate danger to the other spouse’s life, limb or health. Physical violence is not required. The statute also says the wrongs must be sufficiently serious as to make further cohabitation unsafe or unendurable. Cruel and inhuman treatment must last for a period of one year for a legal separation to be granted on this ground.
Habitual Drunkenness. South Carolina statute defines habitual drunkenness in a legal separation context as the uncontrolled use of intoxicating liquors or narcotic drugs that render a marriage unendurable. Testimony only from the complainant is not admissible; corroboration must come from a third party. Habitual drunkenness must continue for a period of one year to form the basis for granting a legal separation.
Filing for Legal Separation in SC
If after a year of separation, you think you would still like to reconcile, it is a good idea to start with a "trial separation" whereby you attempt to live apart with the intent of getting back together. However, many couples then decide they want a legal separation. This is not the same as "legal separation" in the other 49 states. South Carolina does not have a remedy for legal separation. The only way to obtain a "legal separation" in South Carolina is by getting a voluntary spouse separation agreement stating the parties have reached mutual agreement on custody, child support, alimony, and property division and judicially filing for divorce without any other grounds. The parties cannot later contest their judicially agreed separation agreement. A legal separation or "decree of separate maintenance" allows the entry of an Order in Court to address issues that are normally addressed upon the entry of a divorce decree and the equitable division of property. To begin this process, the following documents are needed:
- Financial Declaration-This form provides an overview of the finances. You must disclose all income, debts and assets in this form. It is essential you and your spouse each disclose everything honestly. This is the first portion of the division of property and debt.
- Child Affidavit-This form also gives an overview of the children. If the children have been separated in the past the separation agreement should address the change in custodian. It also addresses child support amounts.
- Do you have a Written Agreement? If you do not have an agreement with your spouse then the litigation begins. One party files a divorce action and the other party can file a counter-action. There is much litigation over assets after a layoff, medical or other change of circumstances.
- Parenting Plan-If you have children this plan discusses the travel plan, child care, school, activities, when each party has the child(ren).
- Uncontested Divorce Agreement-If you have a written agreement with your spouse then the Court process is streamlined. An Uncontested Divorce Agreement that contains the essential information required by the Court, paying close attention to the financial information will allow your divorce action to be uncontested. This is a very important document and should be prepared with an attorney to ensure it meets the legal requirements.
- Hearing Upon Filing Uncontested Divorce Agreement-After you receive service of process upon your spouse or agree to "waive service", you file your divorce action with a hearing date. This hearing is very expedited if an Uncontested Divorce Agreement is enclosed with the hearing.
SC Legal Separation versus Divorce
Legal separation and divorce are two distinctly different legal statuses that can occur during the dissolution of a marriage. In South Carolina, following the entry of a decree of separation which establishes the terms under which a couple will live separate and apart, there is no further action required to continue a legal separation. A couple whose marriage has been legally separated remains legally married until a court enters a final judgment of divorce.
The majority of states provide for an absolute divorce as a final termination of the marital status. In South Carolina, we have two different ways to terminate a marriage: absolute divorce and divorce from bed and board. Most people know that a divorce terminates a marriage but often do not know that there is a second form of divorce.
Divorce from bed and board is a types of separation divorce that can be granted without terminating the marriage itself. It is essentially a form of judicial separation. The legal effect of a divorce from bed and board is to transform an intact marriage into a relationship similar to that of a legal separation. A couple whose marriage is terminated by divorce from bed and board are not permitted to remarry. However, because of the separation of the parties, each spouse can pursue a new relationship and live life on an independent basis. Legal separation allows married couples who are considering separation each a legal remedy to resolve ancillary issues such as alimony, child support, child visitation, property distribution, and more, through the divorce from bed and board mechanism. A couple is not considered legally separated until such order is issued by a court of competent jurisdiction.
In South Carolina, legal separation is not recognized as a "status" of being married but rather as a process. The terms "separate and apart" or "legally separated" are frequently used by courts, lawyers, and the general public. A person can live separate and apart from his or her spouse without being physically separated in the marital residence or in two separate residences; all that is required is to live separate and apart with the intention of terminating the martial relationship.
A person may choose to legally separate from his or her spouse instead of divorcing because legal separation is a viable option if there are recognized reasons such as moral, religious, financial, or health concerns against obtaining a divorce at that time. For instance, some people choose to legally separate instead of divorce to remain eligible for their spouse’s employer-provided health care coverage. Others may wish to wait for more favorable economic conditions to pursue a divorce. For some, a separation can help them work toward reconciliation.
Legal separation can be vital for some cases to give the couple a chance to work on their troubled marriage. Some states have waiting periods attached to legal separation, after which the parties may file for divorce. That’s not the case in South Carolina. Once the action for divorce is commenced, an order for legal separation can be requested at the same time as the action for divorce. Many people term this as "a divorce from bed and board". As noted above, the major difference between divorce from bed and board and absolute divorce is that the parties remain married after the entry of the order for divorce from bed and board whereas the parties are not married after a final judgment of absolute divorce.
For the legal separation to be valid in South Carolina, a swift action must be brought to obtain a legal separation order from a Family Court within one year of the date of the physical separation. If the action is not brought within the one-year time limitation, the parties may no longer be legally separated in South Carolina and the Court will consider the parties to be divorced.
Money Matters in SC Legal Separation
Legal separation can have significant financial implications for you. It can affect your rights to assets and your obligations for spousal support and child support. Here are some important facts to know about how legal separation can affect you financially.
Assets and Debts
From a legal standpoint, the date of separation may be used to determine when property owned by the parties became marital property that could be subject to division in a divorce case. Exceptions include property that is classified as separate property or property that is gifted to one spouse individually. The Family Court still has the authority to consider the entirety of the circumstances and to equitably divide the parties’ property, regardless of the date of acquisition.
On the other hand, the Family Court cannot take into consideration the income of either party in equitably dividing the parties’ property. Any post-separation income would not be subject to equitable division of property .
Spousal Support & Child Support
Either party is entitled to ask for an award of temporary spousal support while a legal separation action is pending before the Family Court. Depending on the circumstances, such temporary spousal support may be retroactive to the date of separation. Permanent spousal support can be awarded as part of the final order or judgment in the legal separation action, and the award can vary in amount, duration, and duration in duration from what that could be awarded in a divorce action.
The general guidelines for calculating child support apply in a legal separation action, just as in a divorce action.
Tax Issues
Child support and temporary spousal support are not taxable as income for the receiver, and the payor cannot take a deduction for these payments.
Permanent spousal support is income taxable to the recipient, and the payor can take a corresponding deduction for the amount paid that qualifies as permanent alimony under federal tax laws.
Child Custody and Visitation
Legal separation has no real impact on SC child custody and visitation rights. Simply put, legal separation has nothing to do with child custody and visitation. In South Carolina, child custody is determined based on the best interest factors found in South Carolina Family Code Section 20-7-1. A legal separation, itself, does not impact the best interest of the child factors. In other words, a trial court judge does not look at which parent is living where when making a custody ruling. The judge does not take into account whether the parents are living together, living apart, or legally separated. In a child custody case, what happens before and after separation does not make a difference. What matters is how parents are currently acting (i.e. their current lifestyle and current stability) as they relate to the children.
Although legal separation makes no impact on child custody and visitation, separation is relevant in three areas related to custody and visitation. First, fathers and mothers are on equal footing when it comes to custody and visitation. However, if a couple is married and one spouse stays at home with the children while the other spouse works outside the home, most judges will allow the stay-at-home parent to have primary custody of the children after separation. Of course, this rule is not absolute, and there are always exceptions, especially in some more affluent areas of Charleston such as Wild Dunes, Kiawah Island, and Sullivan’s Island-where the dads sometimes get primary custody.
Second, legal separation is relevant when a husband and wife want to know how to divide parenting time when children are spending time with extended family members. For example, if kids are spending time with grandparents, a good rule is that the kids spend time with mom’s parents while with mom, and the kids spend time with dad’s parents while with Dad. Similarly, if kids are spending time with aunts and uncles, a good rule is that the kids spend time with mom’s sister’s kids while with mom, and the kids spend time with dad’s brother’s kids while with dad.
Third, you may want to consider the legal separation agreement when talking with husbands and wives about navigating back to a stable life. Most clients want to reunite with their spouses rather than seeking a divorce. Sometimes, they just want to take a little time apart. In these scenarios, you should consider the legal separation agreement when guiding the family living apart for a period of time. Section VII of the legal separation is dedicated to custody and visitation. You may want to use this section to carry the separation agreement through the period before a husband and wife reunite or separate permanently.
Help for Separation Cases
Obtaining legal separation in South Carolina can be challenging and confusing, especially for those who have never gone through the process. Similar to divorce in some ways but different in others, it is important to be well-informed before moving forward. Seeking the assistance of a qualified attorney can help you manage the legal separation process and avoid problems down the road.
When you pursue legal separation, three major things must be decided: property division, spousal support and child custody and support. A legal professional can advise you on these issues and help you come up with an agreement during mediation or litigation. He or she can also guide you through the process of court filings, discovery and other legal requirements, ensuring that everything is done properly. Getting the right help early on is a matter of protecting your future, and can make it easier for you to move forward.
The legal separation process can be complex, and it’s critically important that you understand the laws and procedures involved.
SC Legal Separation FAQs
What does legal separation mean in South Carolina?
Legal separation in South Carolina refers to living apart and filing for legal separation with the court. A legal separation in South Carolina is a Court Order providing a mechanism for spouses to resolve issues such as alimony, property division, child custody, and child support. Near the end of the process, the judge will issue an order of legal separation that addresses these issues. After the legal separation order is issued, the parties can later seek a divorce if they wish.
Can I date while legally separated in South Carolina?
While you are legally separated from your spouse you can begin to date. However, the standard of fidelity that governs married parties is different from those who are legally separated. If infidelity is suspected or admitted, the non-offending spouse can contend that the adultery occurred after the date of separation and thereby use the infidelities to influence the Court in an award of alimony and marital property. In this way your dating can come back to bite you.
How does legal separation affect alimony?
In South Carolina , alimony is based on a party’s need (more money for the supported spouse) and the other party’s ability to pay handsomely. The statute lists 13 factors that the judge considers when awarding alimony. Any award is based on a proper consideration of the 13 statutory factors. Legal separation does not bar you from receiving alimony if you file for it, or otherwise settle it.
Do I have to be legally separated to get a divorce?
No. You can file for divorce on a no fault ground called one-year separation. One-year separation means the parties have lived apart for a year immediately prior to the filing of the divorce action. That 1 year period is used to establish inequitable marital apportionment (marital property division) and alimony. A couple does not have to be legally separated to receive a divorce in South Carolina.