Filing for a Legal Separation in the State of South Carolina: The Complete Guide

The Ins and Outs of Legal Separation in the State of South Carolina

In the realm of South Carolina family law, "legal separation" remains a somewhat nebulous term. A legal separation is the first step in the divorce process, however, South Carolina does not have a formal process for separating. You do not work through a formal process with the court to obtain a legal separation. Legal separation occurs when one spouse moves out of the house – either physically or mentally. Whereas the general public may conflate legal separation with being separated from your spouse, in the eyes of the law legal separation does not in and of itself make a couple divorced.
There is no legal definition of separation in South Carolina because there is no such thing as separation in South Carolina law. Your marital status does not change unless you get divorced. The law will not recognize a separation because there’s no judicial order that says you were married one day and then not married the next. South Carolina law does not require people to get divorced. While the law does have guidelines for ending a marriage , it has little to say regarding when a marriage begins or ends.
When people say they are separated, what they usually mean is that they are not living with their spouse. This can entail a spouse moving out of the marital home or simply an emotional separation where neither party lives in the same state of mind. In South Carolina, mere separation from your spouse does not grant you relief from obligations, such as providing spousal support or sharing property with your spouse. If you intend to end the marriage, it’s essential to go through the proper channels and seek a divorce.

Who is Eligible for Legal Separation?

Filing for Legal Separation in South Carolina: A Comprehensive Guide
Not everyone qualifies for a legal separation, and the requirements vary from one state to the next. Generally, however, legal separation is reserved for those citizens who have grounds for divorce. There is no waiting period or separation period, unlike what is required if you’re going to obtain a divorce. Also, there are specific regulations regarding desertion, and a legal separation doesn’t require desertion to file. Several factors go into whether or not you qualify.
The obvious factor is that you must be married to file for legal separation. You must also file in the proper jurisdiction, where anyone in the immediate family may reside. The defendant (spouse being sued) must be a resident of the State of South Carolina. You can seek a legal separation if there is mutual consent, desertion on the part of the defendant, adultery or mistreatment. Mutual consent is just as it sounds, with spouses agreeing to file for legal separation.
Once you’ve been legally separated, it is unlawful for the spouse to have sexual relations with someone else. With a legal separation, the court will divide the marital property fairly and equitably, and you can seek support from the other spouse. No matter what the circumstances are, if you want a legal separation, you should contact a family law attorney for help with your case.
If you’re considering a legal separation, you don’t have to leave the house. While a legal separation divides the property of both parties and determines who is paying what, it does not divide the house itself. It is a temporary measure, leaving everything as is until a divorce or annulment is filed. This gives both parties time to cool off, and often is a solution for people who don’t want to divorce, but need a break.

Documentation Required to File for a Separation

To file for a legal separation in South Carolina, you must go through the family court in the county in which you reside. To start, you need to gather all necessary documentation related to the marriage and household. This includes a marriage certificate, any prenuptial agreements, and documentation regarding children, such as their birth certificates and social security cards. You also need proof of residency. You must have lived in South Carolina for at least 12 months in order to file for legal separation in the state, and you must be able to show that you have been a resident of the particular county you are filing in for at least three months. Other information to have on hand includes the date of marriage and the date of separation. This will help the family court determine which laws apply to your case. For instance, the law that applies for obtaining an absolute divorce requires a separation period of either one year or three years, depending on the grounds for divorce. A legal separation, however, can be obtained immediately. You can get most of these documents from your county clerk of court’s office, at either the South Carolina Department of Motor Vehicles or the Social Security Administration, or through a court documents search at the local library. Certain forms, such as the petition for legal separation, summons, financial declaration and temporary relief application, are all available online through the South Carolina Judicial Branch. If you have children, you’ll have to provide other information, such as proof of your employment and income, information about any debts you might owe and your assets. For the most part, the forms you need to fill out are relatively simple and straightforward. Completing these forms correctly is the most important step. After gathering all necessary documents, consult with an experienced family law attorney to make sure you are doing everything correctly and that you have all of the required documentation you will need for each step in the process. An attorney will be able to provide you with guidance throughout the process.

A Step-By-Step Guide for Filing a Separation

In South Carolina, the filing for a legal separation is the same as filing for a divorce. There are a series of steps that one must follow to properly file for a legal separation.

Contact a law firm that specializes in family law to represent you in your legal separation.
Go through an initial consultation to determine the right course of action for you.
Your attorney will gather information about the parties, including when they were married, where the marriage took place, where both parties currently reside.
You will then be asked a series of questions to determine whether one party has done something so bad that the Court will find a reason to fault one party or the other (aka marital misconduct). Parents are often asked questions pertaining to whether they abused drugs or alcohol, whether they were abusive to the other party, or whether they committed infidelity.
After you have completed such a questionnaire, your attorney will draft the beginning documents that we refer to as the pleadings.
Once the pleadings have been filed, you will then begin the process of discovery. You will have to disclose to the other party the income and assets you have with that spouse, as well as some lifestyle issues that you engage in.
After the discovery process is complete, your attorney will then recommend you go to mediation.
If the mediation has been successful, then your attorney will get the paperwork together to file with the court, and a master communication will make sure everything is correct.
Once the paperwork is correct, your attorney will submit the necessary documents to the court.
The court will schedule you for a final hearing after all conditions precedent have been met.

Legal Issues You May Face During Your Separation

As you are considering whether to file for legal separation in South Carolina, part of your decision should depend on the legal implications that may arise during the pendency of your separation. Some of the issues that you may face that will arise during the pendency of a separation include child custody, child support, visitation, property division and spousal support . Although you are not legally required to file a divorce complaint or a legal separation complaint in order to become legally separated, court involvement may be necessary to establish the boundaries for cohabitation and finances of the parties. Without Court intervention, both parties are free to dispose of any and all marital assets. Similarly, issues such as child custody, child support and visitation issues can be minimized with a written agreement between the parties so that each party understands their respective rights.

Challenges and Solutions

Challenges During the Separation Period:
Separation agreements:
When a spouse files for legal separation, a court hearing may be required to divide marital property, set spousal support, and establish child custody for minor children. Getting separation agreements in order will not only help you stay out of court, but can promote a more collaborative divorce.
You and your spouse are likely to feel emotional after filing for legal separation, which makes it difficult to have any type of cordial conversation. You can avoid difficult emotional exchanges by working with your attorney to create a short and long term comprehensive divorce plan.
Once you understand the results you want from short and long term plans, your lawyer can help you take steps to ensure you get them. Most importantly, separating legally does not guarantee that a divorce is in your future.
Obtaining an order for exclusive use and possession of the home and vehicle:
The court can issue this type of order when one party fears that the other will physically harm them or their children. If the court does not issue the order, the spouse who remains in the home must leave, even if they have nowhere else to go.
If children are involved, the person who frequently stays with them may want to leave, especially if that person is the primary caregiver. On the other hand, if one spouse was not involved in childcare prior to filing for legal separation, that person will likely have difficulties overcome the fact that they have not been the primary caregiver.
If custody of minor children is involved, an exclusive use and possession order can impact the outcome for the parent with whom the children reside. The court may determine that award equal or primary custody to that parent because it meets the standard of what is in the best interests of the children.
Close all joint accounts before filing for legal separation:
To avoid issues while you are separating, it is important to close any joint accounts. Removing the risk of joint loans and credit cards can minimize the chances that one spouse will run up a large bill and leave the other to pay it.

Getting Help for Legal Matters

While a legal separation may seem less daunting than divorce, the process can still be complex and emotionally challenging. As you prepare to file for legal separation in South Carolina, having the guidance of an experienced divorce attorney can help protect both your rights and the best interests of your children throughout every step of the process. Your attorney can help you understand the legal requirements for filing for legal separation in South Carolina, including those that pertain to child support and custody. Furthermore, your attorney can help you negotiate a marital settlement agreement that outlines how you and your spouse will divide debts, property , and other assets during your legal separation.
With the complexities of legal separation, it is essential to seek adequate legal counsel to help you navigate the system. When you’re filing for legal separation in South Carolina, the first step is finding a lawyer who has the experience necessary to guide you through the intricacies of the law and protect your rights every step of the way.
At Dart Law Firm, LLC, we handle all types of divorce and family law issues, ranging from legal separation, child custody, and visitation to alimony and modification. Our knowledgeable team has the skill and experience to represent clients in all family law matters with professionalism and compassion.