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.
In South Carolina, the only way to obtain a no-fault divorce is to live separately for one year. Living separately occurs when spouses live in two different locations. Living in different bedrooms in the same house does not qualify as living separately. Spouses do not need an Order of Separate Maintenance and Support to live separately, but it can help the spouses protect their financial interests and resolve visitation and custody issues during the separation period.
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.
If the spouses are able to reach an agreement for an Order of Separate Maintenance and Support, 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.
The procedure for filing for an Order of Separate Maintenance and Support 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.
This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem. If you have questions about the law you should consult a lawyer. If you do not know a lawyer, you can call the South Carolina Bar Lawyer Referral Service weekdays between 9 a.m. and 5 p.m. The number is 799-7100 in Richland or Lexington Counties, and 1-800-868-2284 from other parts of the state.