In South Carolina, you don't file for legal separation from your spouse. If the two of you live apart, you file instead for an order of separate maintenance and support with one of the state's family courts. South Carolina doesn't recognize legal separation, but the order can resolve questions of financial support and child custody. You and your spouse may also work out these issues with a mutual settlement agreement.
When and Where to File for an Order
You can file for the order after you and your spouse have moved into separate living spaces. The order covers many of the issues a divorce decree does, such as dividing up property, setting a spousal support amount and deciding child custody and visitation. The order can last until you divorce or indefinitely, if divorce isn't in the cards. South Carolina law determines where you file:
- File in the county where you last lived together as spouses.
- Non-residents file in the South Carolina county where the spouse lives.
- If your spouse is a non-resident or can’t be found after a good faith effort, file in the South Carolina county where you currently live.
The South Carolina Judicial Department maintains an online map showing which family court
Grounds for an Order for Separate Maintenance
You can file for an order simply on the grounds the two of you live apart or you can show the court that your spouse is at fault. For example, if you can prove to the judge your spouse has failed to support the family or threatened you with violence, that would show they're in the wrong. No-fault orders are easier – all you have to show is that you're living separately and won't be reconciling.
The clerk of your family court can provide you with the paperwork you need to file for the order, or you may be able to find it on the court's website. As part of the filing process, you have to fill out a summons and complaint with the clerk and pay any court fees. The clerk countersigns the summons, then the sheriff serves notice on your spouse that he's a defendant in the case. A spousal defendant has 30 days to respond and file objections to your claims.
The Judge's Approval
Whatever you ask for in the order of separate maintenance, it won't be final until the judge approves it. Even if you and your spouse have drawn up a marital agreement covering your finances and just want the order to make it binding, the judge will have to review the terms. The judge won't accept any terms if they're unfair to you, your spouse or your children.
South Carolina law limits what an order for separation or a marital agreement can do. Because you're still married, the order can't take away your spouse's rights of inheritance under state law, for example. Under South Carolina law, you can't give your spouse permission to date other people even if you're both cool with that. If you have any doubts about what's acceptable, talk to a legal professional.
- Sharron Goodyear