I have been asked many times what it means to be separated in South Carolina.
“Does that mean I can date other people?”
“Can I get support from my spouse even though we haven’t been separated a year?”
“What do I do during the year that I have to be separated?”
If you have questions like these, speaking to a South Carolina family law attorney can help make sense of your situation. Keep reading to hear the answers to some common questions about separation in South Carolina that I regularly hear from my clients.
Common Questions About Legal Separation
1. What is the definition of legal separation?
In South Carolina, a couple is either married or not married. Separation in South Carolina simply means that you and your spouse no longer live together. There is no legal status between being married and divorced, although there may be court orders put in place during the time of separation.
You are not considered separated in South Carolina if you are still living with your spouse. To be separated for the requisite amount of time, you have to live separate and apart from your spouse. Sleeping in separate bedrooms in the same house doesn’t count.
2. What is the difference between legal separation vs. divorce?
Legal separation is not the same thing as being divorced. While spouses are legally separated, they are still married. A couple is either married or not married in South Carolina.
A common mistake is people thinking they can now date freely because they are separated. If conduct would have been considered adultery during a marriage, it would still be considered adultery during the period of separation, as the parties are still married.
3. Is there a legal separation form?
There is no legal separation form. You may request a temporary hearing and seek an Order of Separate Support and Maintenance with the help of your attorney.
4. Is there a legal separation agreement?
There is a separation agreement called a “marital settlement agreement” or “separate support and maintenance” agreement. This agreement is negotiated between the two parties. Your attorney can help you negotiate to protect your interests.
These agreements settle important issues like division of real estate and personal property; child support; alimony; allocation of debts and legal fees; health and life insurance arrangements; and custody and visitation of minor children.
5. What is the cost for a legal separation?
There is a set filing fee that must be paid to the Clerk of Court to file an action which is currently $150.00. If a party needs a temporary hearing, there will be an additional $25.00 fee associated with that.
Attorney’s fees are separate from filing fees and can be negotiated with your attorney. There is no set amount. Different attorneys charge different hourly rates and may have different fee structures.
6. What is the process for a legal separation?
Legal separation doesn’t technically exist in South Carolina. There is no legal status between being married and divorce.
Getting an Order of Separation and Maintenance accomplishes the same goals. A party can request a temporary hearing to ask the Court for relief during the separation period.
7. What are the benefits of legal separation?
Filing for Separate Support and Maintenance can help protect each spouse financially and provide financial assistance for any minor children.
One question people may have is why not just wait until I’ve been separated long enough to get divorced? A lot can happen during that time. Debt can accrue, a party may need child support or visitation, or a party may need the Court to order a party not to dispose of marital assets.
8. What is an Order of Separate Support and Maintenance?
An Order of Separate Support and Maintenance is an order issued by a family court judge. After you and your spouse are separated, you can file an agreement with the court, have it approved by the judge, and have what amounts to a legal separation. This is not a divorce; the parties are still married.
This is not the same thing as being “separated” as legal separation in South Carolina technically doesn’t exist (refer to legal separation question). Parties do not have to have this Order to fulfill the one year separation requirement for a no-fault divorce in South Carolina.
9. Can I start dating if I am legally separated from my spouse in SC?
No! This is adultery. A couple is either married or not married in South Carolina. A common mistake is people thinking they can now date freely because they are separated.
If conduct would have been considered adultery during a marriage, it is still considered adultery during the period of separation, as the parties are still married.
Do you have questions about legal separation in SC?
Getting divorced is not only confusing emotionally, but also legally. People find themselves trying to figure out child support, child custody, property division, who is going to keep the house, etc.
What’s even more difficult is figuring out what action or motion to file and where. That is why it is so important to seek legal counsel during a separation or divorce. These are the most important things in your life, and you want to make sure your interests are protected.
Questions? Speak With Jennilee.