Separation occurs and begins in South Carolina when spouses live in two separate locations, at two separate residential addresses. South Carolina does not recognize “legal separation” but instead, Orders of Separate Maintenance and Support are issued that outline specifics regarding child custody, child support, and how marital assets and debts will be handled pending the final resolution of the case. Spouses do not need an Order of Separate Maintenance to live separately, but the order can help the spouses preserve their claims before the court, protect their financial interests, and resolve visitation and custody issues on a temporary basis. It is important to note that these Orders do not provide for the “divorce” of the parties.
Either spouse may file an action for an Order of Separate Maintenance, as long as the parties are living separate and apart (in a no-fault situation), or fault grounds can be proven. The Order contains similar comprehensive provisions, addressing such matters as custody and visitation schedules, child support, who will remain in the marital home, who will pay certain bills, how joint accounts will be divided, debt allocation, transferring titles to personal property, spousal support, health insurance and income taxes.
During the period of time when parties are separated, it is important to remember that you are still technically married. Spouses remain married until the Judge signs the Divorce Decree. Therefore, you are not free to date again, without risking an argument for adultery, until the Divorce Decree has been entered. Claims of adultery can impact the division of assets and debts, and more importantly, can bar you from receiving spousal support and alimony.
Parties who have separated in South Carolina are encouraged to work together to reach agreements regarding the custody arrangements for their children, the child support to be paid, how their property will be divided and whether or not spousal support will be paid. While parties can enter into agreements without the court’s involvement, it is important to seek court approval of agreements, especially when child custody and child support is involved, as the court approval creates legal rights for the parents and often reduces future problems and litigation. Further, court approval also provides avenues for enforcement of the terms of the agreement, in the event a party does not comply in the future. When the court is asked to approve an agreement between the parties, the court considers the overall fairness of the agreement to avoid a windfall to one of the parties. If parties enter into a private contract, it may still be enforceable, however, disputes regarding the contract will likely be addressed in the Circuit Court of Common Pleas, rather than the Family Court. However, regardless of private agreements, the Family Court always has exclusive jurisdiction over matters involving the custody of the minor children, and agreements cannot disrupt the court’s jurisdiction over those matters.
It is always important to seek out and obtain the advise of an experienced South Carolina family law attorney either prior to or during a period of separation. The attorneys at Conrad Trosch & Kemmy are knowledgeable about your options, and are available to assist you in navigating the process. Our team works diligently with our clients to try to resolve issues in an efficient manner that meets your goals.