What Is Legal Separation in South Carolina?
In the simplest of terms, legal separation in South Carolina means that a couple is no longer living together as husband and wife. It is a distinctly different process from divorce under South Carolina law; however, many of the substantive issues to be addressed in a divorce are also addressed in a separation. A legal separation allows a couple to live independently while still being legally married if religious or financial constraints prohibit divorce. Many couples wish to go through the process of a legal separation as opposed to a divorce in order to keep open the possibility of reconciling some time in the future. A legal separation can also be advantageous for financial and health care-related reasons. South Carolina does not require legal separation prior to obtaining a divorce; however , it is still an available option. As defined by the South Carolina Code of Laws, a legal separation occurs when: "A husband and wife become separate and apart from each other with the intention of terminating the matrimonial relationship. [In such a case], the parties are not yet divorced. The legal status of the parties as husband and wife shall be unaffected, although they may live apart."
Components of a Legal Separation Agreement
A legal separation covers similar issues to a divorce, but the terms of your legal separation must contain the following elements:
- The division of assets, including property division and debt division. Laws for legal separation and divorce are different, however, so be careful to get a lawyer who is versed in legal separation law. For instance, in South Carolina, a spouse cannot elect to receive instead of divide the value of the house in a divorce, but parties may agree on this in a legal separation.
- Custody and visitation agreements for minor children. This includes provisions for the physical and legal custody of the children, as well as the schedule for visitations.
- Child support amounts.
- Spousal support (alimony).
- Health insurance coverage and life insurance coverage.
- Retirement benefits.
- Tax consequences.
Steps to Secure a Legal Separation Agreement
Steps to Obtain a Legal Separation Agreement in South Carolina
To begin the legal separation process in South Carolina, you must first prepare a separation agreement in writing. Your written separation agreement must set forth the terms of your divorce including the following general areas (at a minimum): 1. distribution of marital assets; 2. division of marital debt; 3. child support; 4. alimony; 5. your child visitation schedule; 6. the family home and responsibility for that debt; 7. tax matters; and 8. health insurance.
At a minimum, if you have minor children you should agree on:1. child custody; 2. visitation; 3. child support; 4. who will cover the children with health insurance and the payment of the copays and uninsured medical expenses; and 5. tax issues such as the right to claim the children as dependents. This is my general starting list for child related issues that we include in all of our separation agreements when children are involved. In many cases, it is necessary to talk in great detail about these issues for many reasons such as: 1. the children’s ages; 2. the distance between the parents’ homes; 3. the children’s activities; 4. the work schedule of both parents; 5. day-care or after care; and demoting or removing a child from the driver’s license at the appropriate age.
These issues are not a short discussion either as they can take hours to do a good job on. In addition, I cannot tell you how many times I have to tell clients and opposing parties that most Courts want to see the "(1) the frequency of the child’s contact with each parent prior to the separation; (2) each parent’s recent conduct and how that conduct effects [the child’s] relationship with the other parent; (3) for children 12 years or older, the child’s wishes as to his custody; (4) each parent’s ability to be the primary custodian and the degree of the parent’s[ ] past or potential role in parenting and the desirability of keeping siblings together; (5) who is more likely to maintain the child’s relationships with extended family members and [6] a factor our supreme court has termed the "marshaling of the family," which includes factors such as continuity and stability." McClung v. McClung, 401 S.C. 195, 738 S.E.2d 550 (2013). All of a sudden your 15 minute discussion of a simple visitation schedule (that does not contemplate some of the above issues) turns into a 4 hours of work.
If you do not have children, the same steps apply to dividing your other assets and debts. Many people try to do their own separation agreements. However, I can tell you that as a General Practitioner and a Family Court Lawyer with hours of dedicated legal education to this field, I prepare at least 60 and sometimes up to 90 separation agreements per year. Making small mistakes can result in unintended consequences down the road. For example, the federal law requires that the Non Custodial Parent files a proper form with the insurance company if the divorce decree is silent on the children’s health insurance. McButler v. Admiral Insurance Co., 657 S.E.2d 752, 753 (S.C. 2008). If your attorney fails to include this in the order but to be safe, I always say mention it if you can get them to agree to the form and file it anyway.
In any case, once this phase is complete, you will need to prepare your divorce complaint asking the court to issue a divorce based a no fault-kitchen table basis as to what you have achieved in your separation agreement. Remember that the separation agreement is not binding until it is signed by the parties and approved by the judge. Since the parties agree to it, the judge simply signs off on the agreement divorcing the parties as to that state and the marital estate.
Benefits and Restrictions of Legal Separation Agreements
In South Carolina, a legal separation agreement provides a written statement of the rights and obligations of the parties in settlement of the economic issues arising out of their marriage. Although the treatment of spousal support and equitable division of marital property upon separation is not prescribed by statute, a written separation agreement settling such issues is enforced according to the rules applicable to contracts generally. Of course, such an agreement may be set aside if the considerations required under contract law are not present. Generally speaking, however, a legal separation agreement remains binding upon the parties and will be incorporated into the final order of the Circuit Court when the parties subsequently divorce. South Carolina Courts give great deference to agreements between spouses as to support and the division of property made on the eve of separation or during the course of a separation upon the theory that they have greater knowledge of their particular needs than the Court.
Importantly, separation agreements made pursuant to the provisions of S.C.Code Ann. Sec. 20-3-130(B) and (C) do not automatically become part of the final divorce decree. Rather, a separation agreement entered into subsequent to the commencement of a divorce action in South Carolina must, in order to be effective, be incorporated by reference in the final divorce decree. In other words, a separation agreement made while the parties are separated is not binding on the court unless it is incorporated into and made part of the final order of the court. It is important to understand that since separation is not a "legal status" in South Carolina, separation agreements do not provide for divorce from bed and board. A legal separation agreement does not, therefore, direct the parties to live apart, provide for separate residences, or change their status under the law. The parties’ marriages remain undissolved.
FAQ’s on Legal Separation
Q: Do we have to obtain a "legal" separation before filing for divorce?
A: No. You can file directly for divorce if you meet the one-year residency requirement and you have grounds to file.
Q: Does it matter how long we are separated before we file for divorce?
A: South Carolina does not require that you be separated for any length of time before you file for divorce. However, to obtain a divorce on the grounds of one year continuous separation, you must in fact be separated for one year or more.
Q: Can I file for divorce on the ground of desertion if we were living together but you then left the home to stay with a friend or family member for a few days while arguments were occurring?
A: Desertion is one of the "fault" grounds for divorce in South Carolina, and the facts you have related concerning your living arrangement do not meet the definition of desertion. You will need to meet one of the other legally recognized grounds for divorce in South Carolina.
Q: Will a legal separation stop my spouse from selling marital property?
A: No , because the South Carolina law does not even recognize the concept of "legal separation." If you and your spouse were to enter into an Agreement between yourselves that deals with the disposition of marital property, it would be helpful if you later file for divorce because it would be the agreement of the parties for the court to incorporate the Agreement into the final Order of the court. However, the agreement of the parties is not enough; the court must agree with the terms of the agreement and include it in the final order. The court has full discretion to determine the division of marital property.
Q: Can I file legal separation papers in South Carolina and still not be eligible for divorce until my spouse signs the agreement?
A: No. Legal separation in South Carolina is not recognized by the law, so the only way to be "legally separated" is to be divorced under the laws of South Carolina. Citizens of other states may have a law that recognizes legal separation under certain circumstances, but South Carolina does not.
How to Modify or Terminate a Legal Separation Agreement
During the time that the Agreement is in effect the Parties have the right to revise the Agreement or end it if they so desire. When they desire to do that they will have to prepare an Amending Agreement or a Termination Agreement and have those signed, notarized, and have the correct number of copies made for the original and each of their lawyers. South Carolina requires that an Agreement or Settlement be in writing in order to be enforceable (except for a verbal agreement made in open Court on the record), but there is no requirement that it be recorded with any Court, however it is preferable that it be recorded.
Since the Agreement can be amended so easily, rarely has this document led to costly litigation because it contains terms that are no longer feasible for one or both of the Parties. Once again, this leads back to the need to speak to an experienced family law attorney who can guide you to ensure that the Agreement meets your needs and protect those needs in the future.
Seeking Lawyer Counsel on Legal Separation
The advice of a qualified family law attorney is essential for individuals considering legal separation in South Carolina. A lawyer experienced in family law will guide you through the details necessary to create a legally sound, comprehensive legal separation agreement, or to review an agreement prepared by your spouse. There are many forms of agreements that can be used including, but not limited to, ones specific to certain counties, those produced by legal service organizations, or those that are unique to the personalities involved. Most often the one size fits all approaches offered by forms or other non-custom legal separation agreements tend to be inadequate for most cases, if not all. Invariably the specifics of a given situation require some degree of modifying the terms of the forms available on the internet, at the county court houses, or through legal service organizations. Having the ability to work with a professional that can help guide you through such modifications is invaluable .
Once a legal separation agreement that is satisfactory to the parties has been prepared, if both parties sign the agreement without any further modifications, the agreement can usually be filed with the county probate court immediately. A hearing is not typically required for the court to enforce the terms of the agreement as a contract between the parties.
If, however, the parties with the assistance of their lawyers, have made material modifications to the legal separation agreement such that a contested matter might be at issue within the terms of the agreement, a hearing on the agreement will be set within the sole discretion of the court. In such an instance it will be up to the judge to determine if a legal separation will be granted upon the testimony of the parties regarding the terms of the separation agreement. In accordance with the requirements of the South Carolina Family Court Rules, before the court will grant a legal separation both parties are required to testify under oath.