Legal Separation in the State of South Carolina
Legal separation may seem like an archaic legal remedy. While many people just file for divorce, it does have specific benefits for some families. A legal separation may still offer a better solution for couples that don’t want to completely sever ties from each other. There are many different reasons people file for legal separation, but the biggest one tends to be the need for legal documents in order to protect economic interests. Some people may find that they will be able to negotiate a better settlement due to their legal separation.
Legal separation in South Carolina involves the drafting of a written agreement between the parties that sets out how finances, child custody, and other issues will be handled between the parties while they are "separated." It is very similar to a prenuptial agreement, but it is drafted after the couple is married. In South Carolina, there are no "legal separation" laws. Rather, if you wish to separate from your spouse, you simply file for a separation agreement with the court. If you and your spouse can agree on negotiations , including child support, alimony, and ownership of assets, the court will generally approve them.
If the separation agreement is properly done, you will be able to complete your legal separation in less than six months from the date of filing. As long as you and your spouse have come to a satisfactory agreement, you will be able to file for divorce on the same day that your separation agreement is approved (reduction of the property to a single item being the exception). The median time to get a separation agreement approved by the courts is 45 days, while the duration of the separation is six months.
While there are no "legal separation" laws in South Carolina per se, legal separation works similarly to divorce. You may actually be able to get approved for a legal separation before being approved for divorce. By waiting for six months while legally separated, you will not have to wait for one year (or two years, depending on the circumstances of your case) for the divorce to be granted by the courts.
Who Can File for Legal Separation
In South Carolina, a court may separate a couple living together and in a relationship with each other without having a formal divorce. To separate legally, you must meet certain qualifications.
According to state law, you have to be living apart from your spouse for at least one year or be living in a state of continuous separate maintenance and/or bed and board for a year. To legally separate, you must be living separately from your spouse, meaning that you have to be living in separate accommodation with separate lives as you would if you were divorced. If you continue seeing your spouse during this time, that will not help your case when you file for legal separation. A couple may only legally separate when one spouse files for this status. Keeping some of your lives the same or remaining in a physical relationship with your spouse will not keep you from filing, but could cause complications if you file for divorce. For example, you cannot claim adultery if you are still in a physical relationship with your spouse.
Filing for Legal Separation: Basic Steps
The separation process is no different than that of divorce in South Carolina. The first step is to make sure that you have lived in South Carolina for a minimum of one year, or that you have previously lived in the State for last three months. In South Carolina, legal separation is pursued through the filing of a "Complaint" with the South Carolina family court that has jurisdiction of the parties’ case. Trials for legal separation are heard by the judge without the presence of a jury. The contents of the Complaint must include the following: The filing fee for the Complaint varies by county, but may all be paid with a credit card. The Complaint must be served on the non-filing party either through the delivery of the Complaint by law enforcement officials or by "certified mail". Upon completion of the service process, the filing party must then file an "Affidavit of Service" with the Clerk of Court, and the matter is then placed on the Court’s docket for trial.
Creating Your Agreement for Legal Separation
You will have to prepare a legal separation agreement to separate your assets, assets, debts, and the disbursement of your child custody, child support and visitation. The legal separation agreement is a contract signed by you and your spouse with the acceptance from your local court. It has to be properly filed in accordance with the law to protect your rights in court. This is generally a written agreement that contains all the provisions that would be necessary and appropriate to do a full divorce without the time delays and complications of waiting for a divorce trial.
Your attorney has a legal separation agreement document that is customizable for your situation. You can see and review this agreement before signing it. It should be attached to the document you file with the court for the judge’s review. It can then be incorporated into an order approved by the court. You have to be fair and reasonable in preparing and proposing the distribution of the assets and debts. The judge wants to see a solution that is reasonable and fair to both parties. Under South Carolina law you’re entitled to 50 percent of everything acquired during the course of the marriage.
You can separate bank accounts and separate your income and assets. You’ll have to create two separate documents and bank accounts. You’ll have to make the distinction between marital assets and nonmarital assets. While married, your money coming into joint accounts will be considered marital property. There are complicated forms of debt that should be handled by an experienced attorney. A legal separation agreement will contain all the rights to custody of the children and child support, who pays for the health insurance of the children and who pays for their college education. Often, financial obligations continue for the children through their college years and graduate years before they turn 26. If the spouse is in medical insurance through the separating spouse, the spouse should get a permanent order to maintain medical insurance on the other spouse until they are granted a divorce. South Carolina law provides that a spouse’s medical coverage continues in full force until the second spouse turns 26 or until a divorce is granted.
When to Seek Legal Help
When it comes to family law matters in South Carolina, the specifics of legal separation are no different: legal representation can be invaluable. As such, your first step should be to consult with a knowledgeable family law attorney. The legal requirements for your legal separation may vary significantly depending on the circumstances surrounding your marriage and the exact details regarding your marital property and debts. An experienced family law attorney can assist you with both of these aspects when filing for legal separation. In addition, an attorney can help you determine whether or not filing for legal separation is even the best option for you.
Initially, you need to understand some very basic points about attorneys and how they can help you. First, consult with a family law attorney who practices in the area where you live and where you were married. A competent family law attorney will be familiar with the local laws, the potential outcomes, and how each county differs in enforcing its laws .
Second, ask about your attorney’s qualifications. How long have they practiced law? How much of that time has been spent helping people in your position? You want a professional with a proven track record — someone with experience helping people who are in the midst of a legal separation.
Third, be sure to inquire about costs. Your life is already in disarray and your future uncertain; the last thing you need is a surprising extra financial crunch that makes your situation worse. Inquire about the attorney’s fees and billing practices during your consultation so that you don’t get stuck with a surprise bill once separated.
Finally, check and double-check the contract before signing anything. You don’t want to sign up with an attorney who does not meet your needs. Take your time to ask questions and find out exactly what you need in your legal separation.
After Filing: The Next Steps
After you have filed for legal separation, the next steps will depend on the response of the other spouse. In most cases, the spouse will file an answer and counterclaim asking the court to grant either a divorce or a legal separation. This generally occurs within 30 days of receipt of service. In this case, a judge will have discretion to hear either a divorce case and approve a general divorce procedure or approve your request for a legal separation.
If there is no response or objection from the spouse, the legal separation will likely be granted. However, the hearing must still take place so that the particular judge in question has a chance to agree or disagree with granting the legal separation under the circumstances.
You will need to get a court date from the court calendar that you have jurisdiction in. You will then need to have a copy of the summons, complaint and other relevant paperwork served on the spouse to have it officially served.
You will either have to appear in court for the hearing or have an attorney that appears on your behalf to explain the need to grant the legal separation for the following reasons:
It’s possible for spouses to come to an agreement prior to the hearing about how assets should be divided and whether alimony is appropriate or not. Spouses can decide about property division, child support and custody on their own rather than having a judge decide during divorce proceedings.
One of the major benefits of legal separation is the fact that it preserves your ability to remain married for the purposes of tax benefits and health insurance. There are other reasons that many spouses seek legal separation as a solution as opposed to divorce.
You will need to continue to provide the court with updates on anything that occurs that impacts the legal separation. You may be required to return to court for other hearings to review changes in your situation that are relevant.
The legal separation final decree remains in place until either spouse remarries. It also ends on its own three years from the date of filing if the divorce action was not taken. If you seek a divorce after a legal separation, then the marriage would be dissolved without having to revisit the issue in court.
Alternatives to Legal Separation
Legal separation is not the only option when things get rough between spouses. If your marriage has evolved into an emotionally and physically damaging experience, you must carefully consider whether separation is the solution you are seeking, or whether other action might be more beneficial to you and your children. Significant time apart from your spouse may be the solution. Time apart from your spouse can have a cathartic effect, allowing both you to gain clarity about your individual situation. If you are considering a divorce , spending time separately from your spouse can allow you two to determine if that divorce is truly necessary. Having time apart can also allow you to begin to live an independent life if divorce is ultimately the best solution for you and your family. Of course, spending time apart has its drawbacks. It can be extremely difficult emotionally to separate yourself from a long-term relationship, regardless of whether you can imagine remaining with that person in the future. You will likely have to adjust to living alone, adjusting your finances and adapting to your new situation. Additionally, depending on the age of any children involved, your kids may not understand what is going on and be affected by the transition even if they are not living with their parents directly.
