There is no true “legal separation” in South Carolina. Many other states recognize a process where spouses are legally separated. South Carolina does not make a distinction between divorce and legal separation. Instead, you can get an Order of Separation from the court, which has nearly the same effect.
The One-Year Requirement
The court requires you to live apart from your spouse for at least a year before it grants the divorce. You can get an Order of Separation when you intend to seek a no-fault divorce, but haven’t lived apart for one year. South Carolina is frustratingly unbudging on the one-year requirement. Other states freely waive any separation duration requirement for uncontested divorces. Uncontested divorces in South Carolina still require a one-year separation requirement. The General Assembly has attempted to shorten this requirement to only 6 months, but has been unsuccessful so far. South Carolina’s waiting period is unusually long. Some other states allow you to get divorced in sixty days after filing.
Spouses must live apart to get an Order of Separation. This means that you must live apart. If you intend to separate or divorce, you can’t get an Order of Separation if you still live in the same house or apartment. To physically separate, you can agree to live separately. One spouse can also leave without the consent of the other. Finally, a court order can force one spouse out of the home (e.g., a restraining order)
Getting a Settlement Agreement
Once you and your spouse live apart, you can start the process for getting an Order of Separation.
Orders of Separation help speed up the divorce process in South Carolina, and will take care of the major issues before the divorce is final.
Oftentimes, spouses can easily agree how to separate their assets and debts with a little negotiation. It is a good idea to get an attorney to draft a marital settlement agreement.
A marital settlement agreement is a contract between you and your soon-to-be-ex that sets out who gets certain property, and who is responsible for certain debts. Without a settlement , divorces go to trial. Most divorcing couples enter into a settlement agreement.
The settlement will cover who gets the house, who gets which vehicle, splitting the money in bank accounts, and who will pay certain debts from the marriage. It can also discuss alimony, health and life insurance, child support, and child custody.
You and your spouse may also need to fill out a financial affidavit before the court grants the Order of Separation. Courts regularly approve settlement agreements. However, courts refuse to approve them unless they are fair to you and your spouse.
Getting a settlement before the final divorce order helps keep legal costs down. Family court in South Carolina now requires all couples wanting a divorce to go to mediation if they can’t agree to settle. Mediation costs money. Settling keeps your costs down.
Getting the Order of Separation
You can get an Order of Separation after you file for divorce. If you and your spouse have a settlement agreement by the time you filed for divorce, then your attorney can have a hearing on the Order of Separation. Once you and your spouse have lived apart for a year, you can finalize the divorce at a final hearing.
A few words of caution…
Separation is not divorce. You are still legally married after getting an Order of Separation. If you are separated, you still must file your taxes as “married.” You can either file jointly, or as “married filing separately.” You usually agree how to file in the settlement agreement.
Be careful about dating while separated. You understandably may want to move on with your life while you’re getting a divorce. Dating someone before a divorce is finalized is legally adultery. South Carolina recognizes adultery as a ground for a “fault divorce.” South Carolina courts have found that dating or any showing of affection may be considered adultery in a South Carolina divorce. If you are found committing adultery under the legal definition, you may be found at fault for the divorce.
If you are considering a divorce, contact us for a free consultation!