South Carolina does not recognize “legal separation.” Instead, the South Carolina Family Courts issue Orders of Separate Maintenance and Support, which provide specific details regarding parties’ child custody, visitation, and support arrangements, as well as maintaining marital assets and paying marital debts, until the case is resolved at a final hearing or trial.
An Order of Separate Maintenance and Support is a temporary order; it does not cover the issue of divorce, and it does not end the parties’ marriage.
Either spouse may file an action for an Order of Separate Maintenance and Support, so long as the parties are living separate and apart (in a no-fault situation), or fault grounds can be proven.
Issues such as child custody, visitation, and support, which spouse will remain in the marital home, who will be responsible for paying the mortgage and other costs associated with the home during the separation period, closing joint accounts, allocating marital debt, transferring titles to personal property, such as automobiles and boats, into one spouse’s name or the other’s, (depending on who retains possession of the property), spousal support, and health insurance are addressed in an Order of Separate Maintenance and Support.
Issues such as dividing retirement accounts, using life insurance as collateral for alimony, awarding post-divorce alimony, and divorce are not addressed in these temporary orders, as they are final issues which only need to be dealt with one time.
If the spouses are able to reach an agreement on the above issues, the Judge will review the Agreement to make sure it is fair to both parties, in the best interest of their minor children, and that it follows South Carolina law. Parties may not agree to allow each other to date or have sex with other people while they are still married to each other, for example, because that is illegal in South Carolina.
Parties may agree to waive his and her marital interest in the estate of the other spouse, in the event that he or she should die prior to the divorce being finalized. However, a Judge will not and cannot order the parties to waive his and her interest in the other spouse’s estate on a temporary basis. Once the parties are divorced, the ex-spouse is no longer the legal next of kin, and will not be able to inherit as a spouse, even under an old Will leaving property to him or her.
The procedure for filing a case in Family Court is as follows: one of the spouses, who will be the Plaintiff, files a Summons and Complaint for an Order of Separate Maintenance and Support, and a Notice and Motion for Temporary Relief, or has his or her attorney do so. Once filed, the Summons, Complaint, and Notice and Motion for Temporary Relief are personally served upon the other spouse or his or her attorney. The spouse served is the Defendant, meaning he or she is not the filing party. The Defendant, or his or her attorney, then has thirty (30) days to file an Answer, responding to the Complaint, and Counterclaim, telling the Court what he or she would like the Judge to do regarding the issues in the case. The case is then heard by a Judge, who will decide the issues or review and approve an agreement between the parties. This Order will control the issues until the parties reach a Final Agreement as to all issues, or until the trial.