The Advantages & Disadvantages of Legal Separation
Married couples who are considering divorce face many questions and decisions. One is called the “grounds” of divorce, which is the reason for the divorce. South Carolina recognizes several fault grounds, including infidelity and habitual drunkenness. Couples seeking a divorce who don’t want to allege a fault ground must live separately for at least one year. Helpfully, however, you can seek a temporary order that covers maintenance and support so that the year apart is not financially devastating for one spouse.
At Surasky Law Firm, we will happily discuss whether to seek a fault divorce or live separately. Read on to learn the advantages and disadvantages of legal separation below. Or reach out to our divorce lawyer today.
Legal Separation: What is It?
In some states, legal separation is an alternative to divorce. Divorce unwinds a marriage, and couples will need to determine certain issues:
Child custody
Child support
Alimony
Division of marital property and debts
In states that recognize legal separation, a couple can handle all of the above issues but remain married.
Why do couples seek legal separation? For some, staying married allows one spouse to continue to draw certain benefits, like health insurance or government spousal benefits. Also, some couples have religious objections to divorce, and legal separation allows them to remain married but move on with their lives.
South Carolina does not recognize legal separation. You can get divorced or stay married—those are the options. However, to seek a no-fault divorce, couples in South Carolina must live apart for one year. This type of separation has certain advantages and disadvantages, which we discuss below.
What Are the Benefits of Living Apart for a Year in South Carolina?
This is the only way to seek a divorce in South Carolina without alleging fault. For some couples, a fault ground simply doesn’t exist. There is no history of drunkenness, physical cruelty, infidelity, or abandonment. It’s best not to lie when filing divorce papers, so living separately for a year is the only way to ultimately get divorced.
However, even if you could allege a fault ground, you might choose not to. You might not have solid evidence, such as proof of infidelity. Or you are afraid that raising a fault ground will only increase tensions between you and your spouse, as well as extended family. Remember, divorce is a very public process, and raising fault can drag your reputation through the mud.
If you choose to live apart, you can seek an Order of Separate Maintenance and Support that will stay in effect while you are living separately. With this order, you can:
Set a child custody schedule
Set child support payments
Make provisions for paying marital debts, like a mortgage or joint credit cards
Assign the right to use marital property, such as living in the marital home
Transfer title to certain marital assets, like motor vehicles
Establish spousal support
Determine who will maintain health insurance
This might look a lot like legal separation, but it’s not. The Order of Separate Maintenance and Support will not last indefinitely, the way it does in states that recognize legal separation.
What Are the Disadvantages of Living Separately for a Year in South Carolina?
You cannot get married, which is one difficulty, in fact, you can't even go on dates. Adultery has serious implications in South Carolina, such as the loss of the right to alimony, therefore you should remain celibate for the duration of your separation. That could pose a problem for certain individuals.
Also, the temporary Order of Support and Maintenance does not apply to the final divorce decree. That means that you can’t really reorganize your affairs. Even if you temporarily get custody, it’s not like you can move out of state with your children. You might not even get custody in the final divorce decree.
Essentially, the major problem is one of waiting.
How To Live Separately for a Year
You are not required to seek an Order of Support and Maintenance if you choose to live apart in South Carolina. You can just go ahead and have one spouse move out of the family home and into an apartment or live with friends. However, a temporary support order provides protection.
There is a process to follow. One spouse will go to the courthouse in the county where you live and file a Summons and Complaint for an Order of Separate Maintenance and Support, along with a Notice and Motion for Temporary Relief. If you hire a lawyer, they will complete these documents for you. When you file everything, you must plan to have a copy served on your spouse or their lawyer.
Your spouse has 30 days to respond and essentially tell the court what they want. For example, they can propose that they get primary custody of the children, or they might request spousal maintenance. They file an Answer within 30 days, and the court will schedule a hearing.
You can meet to hash out these issues with your spouse before one of you files. Regardless, a judge will review any proposed agreement submitted and issue an order, which remains in effect until the couple has a trial or reaches a final agreement on all issues.
Consult Our Attorney
If you are pondering whether to divorce, please call our Aiken, SC divorce lawyer today. Living separately is something you should plan with a lawyer. At Surasky Law, we can take steps to protect your rights while living apart, including protecting your finances. For example, we might ask a judge for permission to close joint credit card accounts or divide money in a joint bank account. Simple steps like this protect a client from a spouse who might run up outrageous bills or empty a joint savings account out of spite. Contact our law firm today to schedule a time to meet with our divorce lawyer.
