Separation vs. Divorce
South Carolina residents have a couple of different ways to end their marriages. One is to live separately and apart for a year, allowing you to seek a no-fault divorce in court. The other is to identify a reason for a fault-based divorce. Regardless of your option, you should carefully plan what to request regarding child custody, support, and marital property. These are critical decisions, and anyone would benefit from an experienced attorney’s assistance for a separation vs. a divorce.
Please contact Surasky Law Firm. We can advise you about whether to pursue a fault or no-fault divorce, paying close attention to your financial situation and other goals. In this article, we explain the differences in more depth.
Separation is Temporary in South Carolina
In some states, couples can decide to live permanently apart without divorcing. This is what “legal separation” means in these other states. A husband and wife can legally separate, yet stay technically married for decades until one dies.
South Carolina is different. Our state does not recognize legal separation as a permanent state that can last indefinitely. Instead, separation is a way to ultimately get divorced. Once you have lived separately for at least a year, a judge can divorce you without needing to assign fault for the breakup of the union.
During this separation, a judge will enter an order for maintenance and support, which will deal with:
· Child custody
· Marital debt repayment
· Marital assets
These orders are helpful. There won’t be any doubt about who your children will be with or what happens to the family home. For example, a judge might prevent a home sale until divorce or order one spouse to pay the mortgage even if they aren’t living in it.
Couples who go this route will eventually have their case resolved at a trial or hearing. When you receive your divorce decree, a judge will enter permanent orders regarding custody, support, and marital assets/debts. At that point, a couple is divorced, and either spouse can legally remarry if they want.
Separation Does Not Require Proving Fault
Another way to ultimately get divorced is to prove fault. The fault grounds in South Carolina are:
· Abandonment for at least one year
· Habitual drunkenness
If you allege fault, you need to convince a judge that the fault ground is legitimate. This might mean bringing in people to testify about your spouse’s infidelity or testifying to the physical abuse you have suffered. If a judge isn’t convinced that the fault ground exists, then the court won’t grant the divorce. You might need to gather additional evidence and file again, or you might choose to go the separation route this time.
There is a Shorter Waiting Period for A Fault-Based Divorce
One of the major benefits is that you do not have to live separate and apart for a year. Instead, you can march into court and immediately file for divorce.
Of course, this does not mean a judge will approve the divorce immediately. You will need to attend a hearing. If your spouse contests the divorce, you’ll need to introduce evidence of fault to the judge. Your spouse can present their side of the story and other witnesses.
You might also disagree on certain aspects of the divorce, such as who gets custody or whether you receive alimony. This type of contested divorce can take a long time. Of course, even a no-fault divorce might be contested.
Still, a fault-based divorce might allow you to get divorced quicker, especially when you reach an agreement on important issues. In fact, it’s sometimes possible to get divorced within 90 days.
Another consideration is whether you can financially afford to set up a separate household. To get a divorce based on separation, you need to live “separate” and “apart.” Essentially, you can’t be in the same house for a year. You can’t sleep in a different bedroom and claim you are “apart.” You really need to set up a new home or live with friends or family. When finances are tight, one spouse might not have anywhere to go.
When to Get Legal Help for Separation vs. Divorce
Some people seeking no-fault divorces are tempted to file without the help of an attorney. We recommend you still schedule an appointment with a seasoned South Carolina divorce lawyer.
There is a simple reason why: you want to be careful about the temporary orders you receive. In a separation, your order for support and maintenance might only be good for a year. However, it does tend to create a new “status quo” regarding child custody and support. Many judges are tempted to maintain the status quo unless there is a good reason not to.
Let’s say your goal is to be the primary custodial parent of your children. You envision that the kids will spend a couple months in the summer with your soon-to-be ex, as well as vacation weeks and some weekends during the school year, but they will be with you during most of the school year. That’s what you want.
When you decide to separate, the judge will issue temporary child custody orders. The last thing you want to do is to let your spouse be the custodial parent during this one year separation. Yes, it’s temporary. But if everything goes okay, then the judge will be tempted to keep this arrangement in the final custody order.
Good lawyers know the importance of temporary orders. If you want the home, try to get an order to have your spouse move out for the year you are separated. That would set you up nicely for success at the hearing on your final property order.
Contact Surasky Law to Schedule a Consultation
Our dedicated Aiken, SC family law attorney has helped many men and women leave a marriage. Divorce or separation can be as difficult or as stressful as you make it. Please call our firm to speak with a divorce attorney. It is never too early to consider your legal options and what might happen if you choose to pull the cord and exit your marriage.