Separation can bring many difficult questions, especially when spouses share children, property, debts, or financial responsibilities. You may need to determine who will live in the marital home, how expenses will be paid, where your children will live, or whether one spouse should provide financial support to the other. At the same time, you may not be ready to end your marriage, or you may not yet be eligible to obtain a no-fault divorce.
South Carolina does not technically recognize “legal separation” as a separate marital status. Instead, spouses who are living separately can seek an Order of Separate Maintenance and Support through Family Court. This order can establish legally enforceable arrangements regarding important family-law matters while the spouses remain married.
An Order of Separate Maintenance and Support does not end the marriage. However, depending on the circumstances, it can address issues such as child custody and support, spousal support, marital property, debts, and other financial responsibilities during the separation period.
Importantly, spouses do not necessarily need an Order of Separate Maintenance and Support simply to live separately. However, obtaining an order can provide greater clarity and legal protection when important issues need to be resolved.
If you are considering separation in South Carolina, understanding your options before making major decisions can be important. Below, we explain what an Order of Separate Maintenance and Support is, how separation works in South Carolina, why someone may pursue separate maintenance instead of divorce, and how to begin the process.
What is an Order of Separate Support and Maintenance in South Carolina?
An Order of Separate Maintenance and Support is a Family Court order that establishes certain rights and responsibilities between spouses who are living separately while remaining legally married.
Although “legal separation” is a common term, South Carolina does not recognize legal separation as its own marital status. Instead, South Carolina Family Courts use Orders of Separate Maintenance and Support to address the practical and legal issues that can arise when spouses separate.
Depending on the circumstances, an Order of Separate Maintenance and Support may address:
- Child custody: Establishing where children will live and how parents will share custody.
- Visitation or parenting time: Establishing when the children will spend time with each parent.
- Child support: Determining financial support for the children.
- Spousal support: Addressing whether one spouse should provide financial support to the other.
- Household and marital expenses: Determining who is responsible for certain expenses during the separation.
- The marital home: Establishing which spouse will live in or otherwise have possession of the marital home.
- Mortgage and other debts: Allocating responsibility for mortgage payments, household expenses, and marital debts.
- Marital property: Addressing the division or allocation of marital assets when appropriate.
- Personal property: Establishing who will retain possession of certain personal property, such as vehicles or other significant assets.
- Health insurance: Addressing health insurance responsibilities between the spouses.
- Other financial responsibilities: Establishing other obligations necessary to address the parties’ circumstances.
An Order of Separate Maintenance and Support can therefore provide structure during a period that might otherwise be uncertain. Rather than relying entirely on informal arrangements, spouses can ask the Family Court to establish enforceable terms regarding important aspects of their lives.
For more information about how South Carolina handles divorce and the issues that may arise during the process, read our guide to filing for divorce in South Carolina.
Separate Support and Maintenance vs. Legal Separation in SC
The terms “separate support and maintenance” and “legal separation” are sometimes used interchangeably in everyday conversation, but there is an important distinction under South Carolina law.
Legal separation: Legal separation is a common term people use to describe living separately from a spouse while addressing legal and financial issues. However, South Carolina does not recognize legal separation as a separate marital status.
Order of Separate Maintenance and Support: This is a Family Court order that can establish the rights and obligations of spouses who are separated but remain married. Depending on the circumstances, it may address custody, support, property, debts, and other issues.
Divorce: A divorce legally ends the marriage. An Order of Separate Maintenance and Support does not.
This distinction is important because pursuing separate maintenance does not mean that you are divorced. You remain legally married unless and until a divorce is granted.
What are the legal grounds for separation in South Carolina?
The legal considerations surrounding separation are not exactly the same as the grounds for divorce in South Carolina.
A spouse may pursue an Order of Separate Maintenance and Support when the parties are living separate and apart in a no-fault situation, or when applicable fault-based circumstances can be established. The specific circumstances of a case can affect what legal options are available and what relief a spouse may seek.
No-fault separation
South Carolina recognizes a no-fault ground for divorce based on spouses living separate and apart for at least one continuous year. The spouses generally must live in separate locations to satisfy this requirement. Simply living in separate bedrooms within the same home does not satisfy the one-year separation requirement for a no-fault divorce.
Importantly, you do not necessarily have to wait a full year before seeking an Order of Separate Maintenance and Support. The separate maintenance process can allow spouses to address important legal and financial issues during the separation period.
This can be particularly helpful for spouses who anticipate eventually seeking a no-fault divorce but need to resolve issues involving children, finances, property, or support before the one-year period has passed.
Fault-based circumstances
Certain circumstances involving the conduct of one spouse may also be relevant to a separate support and maintenance action. Depending on the facts of the case, these circumstances may include:
- Adultery
- Desertion or abandonment
- Physical cruelty
- Habitual drunkenness
These circumstances should not be viewed as a simple checklist of “grounds for legal separation.” Rather, the circumstances surrounding the spouses’ separation can affect the legal claims and relief available in a particular case.
Because the facts of every family law case are different, it is important to speak with a South Carolina family law attorney before assuming that a particular circumstance automatically gives you a right to separate maintenance or another form of relief.
How long does separate maintenance last?
There is no single fixed period that applies to every Order of Separate Maintenance and Support. The duration of an order depends on the circumstances of the case and what happens after the order is entered.
An Order of Separate Maintenance and Support can remain in effect while the parties are separated, subject to modification, termination, replacement by another order, or other resolution of the case.
The spouses also remain legally married while an Order of Separate Maintenance and Support is in effect. The order itself does not change their marital status.
In some circumstances, support obligations established through separate maintenance may also be modified when there has been a substantial change in circumstances or in the financial ability of the spouse making the payments. South Carolina law allows the court to consider whether support or separate maintenance payments should be increased, decreased, suspended, modified, or terminated based on changed circumstances.
A subsequent divorce can also affect the separate maintenance order. Once the parties divorce, the legal framework governing their relationship changes, and provisions of a separate maintenance order may no longer apply in the same way.
Separate maintenance may also terminate in certain other circumstances addressed by South Carolina law, including applicable situations involving continued cohabitation or the death of a spouse.
How separate maintenance can fit into the divorce process
For many couples, separate maintenance is part of a larger divorce strategy.
South Carolina generally requires spouses to live separate and apart for one continuous year before a no-fault divorce can be granted. Rather than waiting for that year to pass with important issues unresolved, spouses may use a separate support and maintenance action to address matters during the separation period.
For example, a couple may resolve issues involving custody, support, property, and debts through the separate maintenance process. If the parties have already resolved the substantive issues that need to be addressed, the eventual divorce may be more straightforward.
However, every case is different. The terms of any agreement or order entered during separation can have significant consequences later, so it is important to understand those consequences before agreeing to resolve an issue.
Why would someone file for Separate Support and Maintenance instead of divorce?
Separate support and maintenance and divorce serve different purposes. A spouse may choose to pursue separate support and maintenance for a number of reasons, particularly when the parties need legal structure during their separation but are not immediately pursuing a divorce.
1. They are not ready to end the marriage
Not every spouse who separates is ready to permanently end the marriage. A spouse may want to live separately while taking time to determine what the future of the relationship will look like. An Order of Separate Maintenance and Support can allow the parties to establish legal boundaries and address important issues without ending the marriage.
2. They need financial support during separation
Separation can create a significant financial imbalance between spouses, particularly when one spouse has historically earned more income or paid most household expenses. In appropriate circumstances, an Order of Separate Maintenance and Support can address spousal support and responsibility for household and marital expenses during the separation.
To learn more about spousal support in South Carolina, visit our guide to alimony and spousal support in SC.
3. They have children and need enforceable arrangements
When children are involved, separation can raise immediate questions about where the children will live, how parenting time will work, and how expenses will be handled.
An Order of Separate Maintenance and Support may address:
- Child custody
- Parenting time and visitation
- Child support
- Other child-related responsibilities
Having clear, enforceable arrangements can help provide stability for children and reduce uncertainty for parents during the separation.
4. They need to address property and debts
Spouses who separate may still have significant financial ties. They may own a home together, share bank accounts, have joint debts, own vehicles, have retirement accounts, or have interests in businesses and other assets.
Leaving these issues unresolved can create uncertainty and conflict during the separation period. Depending on the circumstances, separate support and maintenance proceedings can address issues involving marital property and debts.
5. They want to resolve divorce-related issues before the one-year separation period is complete
One of the most significant reasons to consider separate support and maintenance is that it can allow spouses to address important issues before they are eligible for a no-fault divorce.
Instead of simply waiting for the one-year separation period to pass, spouses may be able to use the separate maintenance process to resolve matters involving property, custody, support, and other aspects of their lives.
If the parties are ultimately able to resolve their substantive issues through the separate support and maintenance case, the later divorce process may be significantly simpler. This can be particularly useful for spouses who already know that divorce is likely but cannot yet meet the one-year separation requirement for a no-fault divorce.
6. They want court-enforceable terms
Informal agreements can sometimes work for separated spouses, but they may not provide the same level of certainty as a court order.
An Order of Separate Maintenance and Support can establish legally enforceable obligations regarding issues addressed by the order. This can give both spouses greater clarity about their responsibilities while they remain separated.
How to file for separate support and maintenance in SC
If you are considering separate support and maintenance, the process involves more than simply completing a form and filing it. The appropriate approach depends on your circumstances, the issues that need to be addressed, and whether you ultimately intend to pursue a divorce.
Step 1: Determine whether separate support and maintenance is appropriate
Before moving out, signing an agreement, or filing anything with the court, consider speaking with a South Carolina family law attorney about your options.
An attorney can help you understand whether separate support and maintenance is appropriate based on factors such as:
- Whether you and your spouse are already living separately
- Whether you have children
- Differences in income between you and your spouse
- Your marital and separate property
- Your debts and financial obligations
- Any safety concerns
- Whether either spouse is considering or pursuing divorce
- Whether fault-based circumstances may be involved
The right strategy for one couple may be very different for another.
Step 2: Identify the issues that need to be resolved
Before beginning a separate support and maintenance action, it can be helpful to gather information about your financial and family circumstances.
Depending on your situation, this may include information about:
- Income and employment
- Bank accounts
- Retirement accounts
- Real estate
- Vehicles
- Loans and other debts
- Health and other insurance
- Household expenses
- Children’s expenses
- Existing support arrangements
Having accurate financial information can help you and your attorney identify the issues that need to be addressed and determine what relief may be appropriate.
If property division is likely to be an issue, you may also want to review our resources on division of marital property and marital property laws in South Carolina.
Step 3: File the appropriate action in South Carolina Family Court
An action for separate support and maintenance is filed in South Carolina Family Court.
Generally, the filing initiates the legal process and identifies the issues the filing spouse is asking the court to address. The appropriate documents and procedures can depend on the circumstances of the case.
Because court procedures and forms can change, it is important to use current South Carolina Family Court resources and follow the applicable requirements. An attorney can help ensure that the appropriate action is filed and that your legal claims and requests for relief are properly presented.
The South Carolina Family Court process may involve the filing and service of the appropriate pleadings, followed by a response from the other spouse and proceedings before the court.
Step 4: Address temporary issues while the case is pending
Some issues may need to be addressed before the case reaches a final resolution.
Depending on the circumstances, a spouse may seek temporary relief concerning matters such as:
- Temporary child custody
- Temporary child support
- Temporary spousal support
- Use of the marital home
- Payment of household expenses
- Responsibility for debts
Temporary orders are designed to address issues while a case is pending. They are different from the final resolution of the parties’ substantive legal issues.
Because financial and family circumstances can change during a separation, temporary relief may be an important part of protecting your interests while the case proceeds.
Step 5: Resolve the issues through agreement or litigation
Not every separate support and maintenance case has to be resolved through a contested trial. If spouses are able to reach an agreement about some or all of their issues, they may be able to present that agreement to the Family Court for appropriate approval. When the parties cannot agree, the Family Court may determine the disputed issues through the appropriate proceedings.
Either way, it is important to understand the long-term consequences of any agreement before signing it. An agreement addressing property, support, custody, or other important issues can significantly affect your rights and obligations going forward.
Having an experienced family law attorney review a proposed agreement can help you understand what you are agreeing to and whether the terms protect your interests.
Step 6: Continue the separation period if divorce is the ultimate goal
If you ultimately intend to pursue a no-fault divorce, you generally must continue living separate and apart for one continuous year before the divorce can be granted.
Separate support and maintenance can fit into that process by allowing spouses to address important legal and financial matters during the separation period.
Once the required separation period has been satisfied, the parties may proceed with the divorce process. If substantive issues were already resolved during the separate support and maintenance case, the eventual divorce may be more straightforward.
Contact our experienced divorce lawyers in South Carolina today
Deciding whether to pursue an Order of Separate Maintenance and Support is an important legal decision. The choices you make during separation can affect your finances, property, children, support obligations, and eventual divorce. You do not have to navigate these decisions alone.
At Harvey & Battey, our experienced and compassionate family law attorneys help South Carolina families understand their options and make informed decisions about separation, support, custody, property, and divorce. We take a personalized approach to each case and work to protect our clients’ futures while minimizing unnecessary conflict whenever possible.
With more than 100 years of serving South Carolina families, Harvey & Battey has built a reputation for providing trusted legal guidance when clients need it most.
If you are considering separation or are already living separately from your spouse, our experienced family law attorney, Sam Scoville, and his team can help you understand whether separate support and maintenance may be appropriate for your situation.
Schedule an initial consultation below with our experienced family law team today.