Separation vs Divorce in South Carolina

Another thorny divorce question

What if you don’t want a divorce. In South Carolina, can you just get a separation? What is the difference between a separation and a divorce, anyway? Is there an advantage to getting a separation instead of a divorce?

These are questions I hear frequently. There are a variety of reasons people don’t want to get a divorce that range from hope for reconciliation, religious beliefs, financial considerations, and personal feelings of failure, among others.

Separation Isn’t A Legal Concept In SC

In South Carolina, there is no provision for a “legal separation.” Other states do have separation as a legal concept. In SC, a couple is either married or divorced. Sometimes, confusion arises because in cases of no-fault divorces, the couple must be living “separately and apart” for one year before they can file for a divorce. This means they must live in separate locations – living in the same house and sleeping in separate bedrooms doesn’t count. Even if one spouse moves to a guest house on the same property, it is considered living together.

Nevertheless, once the couple is living separately, they are still married, and must remain apart for one year to qualify for the no-fault divorce. Spending even one night together to see if reconciliation might work could reset the clock, and dating could be grounds for adultery (a topic for another discussion).

Getting Support or Maintenance Money
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Once separated, a party can request a temporary hearing and seek an Order of Separate Support and Maintenance. Typically, these hearings and subsequent orders will address such things as division of property, temporary alimony, child support, custody, and visitation, if appropriate.

If you and your spouse are able to agree on the terms of your separation, whether on your own or with the help of a mediator, you must still submit your agreement in writing to the judge. He (or she) will review it to ensure it is fair to both parties and that your children’s’ best interests have been met (if you have children). If he is satisfied, he will sign the order.

In the alternative, the judge could schedule a hearing to decide the issues in your case. A temporary hearing is usually only 15 minutes. Each party is limited to submission of 8 pages of documents, including affidavits, to support his or her case. There is usually no testimony. In more complex cases, the hearing can be extended to 30 minutes, and sometimes the judge will accept testimony and additional submissions.

Try The Easy Way First

If you and your spouse can reach an agreement on their own, this is always preferable, but otherwise, the judge can decide. I always caution my clients that it is always best to try to come to an agreement with their spouse, because there is much uncertainty in leaving it in the hands of the judge, and even though she will do her best to be fair and objective, she has no way of knowing all the facts and can only make a determination based on what she has been presented with in court.

 isolated portrait of a very worried and concerned beautiful woman.

Be sure you realize that separation, and separation orders, don’t end your marriage. Even though you are living apart, paying or receiving alimony and/or child support, and have divided your marital assets, you are still married. Furthermore, as long as that Order of Separate Support and Maintenance is in place, you are prevented from selling or transferring marital assets or excessive spending.

Don’t Be a Bigamist

Because you are still married, you cannot remarry. It’s not a good idea to acquire expensive property, as this could be considered marital property for purposes of the divorce, and dating could impact your future divorce financially if your spouse is able to introduce and prove adultery.  South Carolina courts have found that dating or any showing of affection may be considered adultery in a South Carolina divorce. If you are found guilty of adultery under this legal definition, you could be found at fault for the divorce.

South Carolina Divorce Roadmap

Despite the lengthy separation period, you can use this time to your advantage. If one spouse has not been working, he or she has the opportunity to find a job or even begin some sort of training program to become more employable. In some circumstances, you can maintain health coverage throughout a separation, but check with your insurance to be sure separation is not a disqualifying event.

It is also best to use this time to work on issues of disagreement before your divorce process. The more issues you can settle out of court, the less it will cost you in money, time, and emotional expense when you file for divorce at the end of your separation.  

When Temporary Means Permanent

Keep in mind that even though the Order of Separate Support and Maintenance is meant to be temporary, they may affect your permanent orders for divorce. Depending on what evidence the judge had access to at the time of the temporary orders, whether there has been a substantial change in circumstance since, and various other factors, the judge may rely heavily on the temporary orders when granting your final decree of divorce. Thus, it is important to put some time and consideration into your temporary orders, and not just think you can agree to anything and change it later.

If you have questions or need a family law attorney, please contact Crossroads Family Law, LLC, at 843.474.4000 or schedule a free consult here.

Kathy Dailey Hubbard, Esq.

Kathy is the lawyer in our office. Clients love her. She graduated from Whittier Law school in Costa Mesa, CA. She is a licensed attorney in South Carolina and Colorado.