Understanding Legal Separation vs. Divorce: Pros and Cons

Are you considering divorce in South Carolina? You may have heard about legal separation, as well, but please note that no law in the state recognizes it. An experienced Charleston divorce lawyer can provide more information about divorce and other options if you want to be apart from your partner. The legal separation process often serves as a means to enact the one-year separation requirement for a no-fault divorce. Understanding the rules of legal separation is essential to ensure your no-fault divorce can proceed.

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The Divorce Process In South Carolina

In South Carolina, the divorce process involves several key steps governed by state laws that outline specific requirements and procedures. The process begins with determining eligibility to file for divorce. At least one spouse must meet the residency requirement: either both spouses must have lived in South Carolina for at least one year, or if only one spouse resides in the state, they must have been a resident for at least one year before filing.

Alternatively, if both spouses are residents, the filing can proceed after three months of residency. Divorces in South Carolina are filed in the Family Court of the county where either the plaintiff (the spouse filing) or the defendant (the other spouse) resides or where the couple last lived together as a married couple.

Fault-Based And No-Fault Divorce 

South Carolina recognizes both fault-based and no-fault grounds for divorce. No-fault divorce requires the spouses to live separately and apart, without cohabitation, for at least one year. Fault-based grounds include adultery, habitual drunkenness or drug abuse, physical cruelty, or desertion for one year.

Choosing fault-based grounds may impact issues such as alimony or property division, but it can also complicate and lengthen the process due to the need for evidence. Once grounds are established, the spouse seeking divorce (the plaintiff) files a Summons and Complaint with the Family Court, officially initiating the case.

These documents outline the grounds for divorce, requested relief (such as alimony, child custody, or property division), and other relevant details. The filing fee, typically around $150, must be paid unless the plaintiff qualifies for a fee waiver due to financial hardship.

After filing, the plaintiff must serve the divorce papers on the defendant, typically within 120 days, through methods like personal delivery by a sheriff or process server, certified mail, or publication if the defendant cannot be located. The defendant has 35 days to respond by filing an Answer, either agreeing or contesting the terms.

If the defendant fails to respond, the plaintiff may request a default judgment, potentially granting the divorce on the plaintiff’s terms. If both spouses agree on all issues, they can pursue an uncontested divorce, which is faster and less costly. In this case, they submit a signed settlement agreement to the court, and a final hearing may be scheduled within 90 days of filing, during which the judge reviews the contract to ensure it is fair.

Contested Divorce

The process becomes more complex for contested divorces, where spouses disagree on issues. The court may order mediation to help resolve disputes or temporary hearings may be held to address immediate concerns, such as child support or spousal support, while the case is pending. Discovery, a phase where both sides exchange information, may occur, extending the timeline.

South Carolina law requires a mandatory 90-day waiting period from the filing date before a final hearing can be held, even in uncontested cases. At the final hearing, the judge hears evidence, reviews agreements or arguments, and issues a Divorce Decree, which finalizes the divorce and addresses all related issues, such as property division, alimony, child custody, and support.

Property Division In Divorce

Property division in South Carolina follows equitable distribution principles, meaning marital property (assets acquired during the marriage) is divided fairly, although not necessarily equally, based on factors such as each spouse’s contributions, income, and needs. Debts are also divided equitably. Alimony may be awarded based on factors like the length of the marriage, each spouse’s financial situation, and fault in the marriage’s breakdown, with types including permanent, rehabilitative, or temporary alimony. For couples with children, child custody and support are critical issues.

Child Custody In Divorce 

Custody arrangements prioritize the child’s best interests, considering parental fitness and stability. South Carolina encourages joint custody when feasible. Child support is calculated using state guidelines that take into account both parents’ incomes and the child’s needs.

The entire process can take anywhere from a few months for uncontested divorces to over a year for contested cases, depending on the complexity and court schedules. Hiring a divorce lawyer is not required, but it is strongly recommended.

Separating Into Different Households

This process is often used by couples who are not ready to divorce, either due to personal, religious, or financial reasons, or who need to establish formal arrangements during the mandatory one-year separation period required for a no-fault divorce. To initiate this process, one spouse must file a petition for an Order of Separate Support and Maintenance in family court, provided the couple is living in separate residences. Living in different bedrooms within the same home does not qualify as separation under South Carolina law.

The process begins with one spouse, referred to as the plaintiff, filing a Complaint for Separate Support and Maintenance with the family court in the county where either the defendant resides, the plaintiff resides (if the defendant is a nonresident or cannot be found), or where the couple last lived together as spouses.

The complaint outlines specific requests, including child custody, spousal support, child support, and property division. The other spouse, the defendant, must be served with the complaint and has the opportunity to respond, typically within 30 days.

While the case is pending, the court may schedule a temporary hearing to address immediate needs, such as temporary custody or support arrangements. Couples may also negotiate terms through mediation or reach an agreement outside of court, which can be submitted to the judge for approval. The court ensures the deal is fair and in the children’s best interests.

An Order of Separate Support and Maintenance is a temporary order that does not end the marriage, meaning the spouses remain legally married and cannot remarry. This order can address a range of issues, including child custody, visitation, child support, alimony, division of marital property, and responsibility for marital debts. It may also include provisions to prevent the sale or transfer of marital assets during the separation period.

One-Year Separation Requirement For No-Fault Divorce 

Importantly, the time spent under this order can count toward the one-year separation requirement for a no-fault divorce in South Carolina. If the couple reconciles, they can request the court to dismiss the order. Alternatively, if they proceed to divorce, the terms of the separate support and maintenance order can often be incorporated into the final divorce decree, streamlining the process.

There are key considerations to keep in mind during this process. Since the couple remains legally married, actions such as dating or entering romantic relationships can be considered adultery, which may impact alimony or property division in a subsequent divorce. Adultery is also technically a crime in South Carolina, though it is rarely prosecuted.

Spouse Can Still Inherit Property 

Additionally, because the marriage is still intact, a spouse may still inherit from the other in the event of death unless provisions are made in the will to waive certain inheritance rights, such as the elective share. Couples are not required to obtain an Order of Separate Support and Maintenance to separate; however, it can provide legal clarity and protection, particularly in financial and custody matters. Consulting a family law attorney is advisable to handle the complexities of the process and ensure compliance with South Carolina’s specific requirements.

While a separation agreement can be drafted as a private contract to outline terms like asset division or support, it must be approved by the court to be enforceable. Without court approval, such agreements may not hold up in disputes. The family court retains the authority to modify agreements, especially concerning child-related issues, to ensure fairness and compliance with state laws.

South Carolina’s approach to separation emphasizes practicality, allowing couples to resolve immediate concerns while maintaining the legal status of marriage until a divorce is finalized or reconciliation occurs. For those considering this step, Charleston divorce lawyers at Henderson & Henderson can provide guidance tailored to individual circumstances, helping to avoid costly mistakes during the separation period.

Important Tips For Legal Separation In South Carolina

South Carolina does not recognize “legal separation” as a formal status, but an Order of Separate Maintenance and Support serves a similar purpose. To qualify, you and your spouse must live in separate residences—different bedrooms in the same home do not count.

This physical separation is also required for a no-fault divorce, which mandates one year of living apart. Before moving out, consult a divorce attorney to assess impacts on property rights, custody, and finances. Moving out without an agreement can be seen as abandonment in fault-based divorce cases. File a Summons and Complaint for Separate Maintenance and Support to request alimony, custody, or property division, ensuring proper legal service to your spouse.

Create a Comprehensive Agreement

Draft a separation agreement or seek a court-issued Order of Separate Maintenance and Support to address assets, debts, child custody, and support. A separation agreement, once court-approved, becomes enforceable via contempt powers. A court can issue a temporary order after a hearing if no agreement is reached. Include provisions like waiving the elective share of each other’s estate to avoid inheritance issues as you remain married. Avoid dating during separation, as it may be considered adultery, affecting alimony or property division. Have an attorney review any agreement to ensure fairness and legal validity.

Protect Your Finances and Well-Being

An Order of Separate Maintenance and Support can secure temporary alimony, child support, or property division, preventing financial instability or unauthorized asset transfers. For children, request clear custody and visitation terms for stability. Mediation can help negotiate terms cost-effectively, but it’s not a substitute for legal counsel. Avoid significant life changes, such as remarrying, as you remain legally married. Consult an experienced family law attorney to navigate the one-year separation period for a no-fault divorce and avoid mistakes.

How A Family Law Lawyer Can Help

A family law lawyer in your city can help if you are wavering between divorce and legal separation. Your lawyer can help file Orders of Separate Maintenance and Support to address issues during separation. Your lawyer can help with the following:

Purpose and Benefits Of Orders of Separate Maintenance And Support

This order resolves issues like child custody, visitation, support, alimony, and property/debt division while spouses live apart without ending the marriage. It’s often used during the one-year separation required for a no-fault divorce or when reconciliation is possible.

It protects financial interests and clarifies responsibilities, preventing disputes during separation.

Filing and Negotiation

Your lawyer files for the order, ensuring that spouses meet the requirement of living separately. They negotiate terms, draft enforceable agreements, and represent you at hearings (typically 3–8 months to complete).

They create Separation Agreements (or Marital Settlement Agreements), which serve as a form of “private law” to outline expectations. These must be court-approved to be binding.

Strategic Guidance

Based on your goals, lawyers advise whether to pursue an order or wait for divorce eligibility. They warn against actions like dating during separation, which can be construed as adultery, affecting alimony or asset division.

Transition to Divorce

Agreements from the order can carry over to the final divorce, simplifying the process. After a year of separation, a lawyer typically files for a no-fault divorce, often completing the process quickly.

Legal separation offers the benefit of providing a transition period between marriage and divorce. During this time, the spouses can work out complex issues, such as child custody and child support. The counsel of a skilled family law lawyer is critical to ensure that the separation meets the legal threshold to qualify the couple for a no-fault divorce after one year.

Contact A Divorce Lawyer Today 

Understanding the legal differences between separation and divorce in South Carolina is vital for understanding your options going forward. An experienced divorce or family law lawyer in Charleston can help and guide you during this difficult time. Contact a skilled divorce attorney in your area today for more information.