Legal Separation or An Order of Separate Maintenance and Support?

Married couples living apart may say they are “legally separated,” but South Carolina’s laws don’t provide for a “legal separation.” Instead, if a husband and wife are living separately, either of them may apply for an order of separate maintenance and support.

An Order of Separate Maintenance and Support Is Different Than A Divorce

Like a divorce, an order of separate maintenance and support can provide for one spouse to make support payments to the other, determine child custody and visitation rights, decide who gets to live in the family home, and divide the couple’s property.  But an order of separate maintenance and support is not a divorce – the parties are still married.  They cannot marry someone else, and if one of them dies, the inheritance laws that apply to married couples will still apply.

Having an order of separate maintenance and support is also not the same thing as being “separated” before filing for divorce.  In South Carolina, the only way to obtain a no-fault divorce is to first live separately for a year.  A couple doesn’t need an order of separate maintenance and support in order to live separately prior to a divorce.  However, a maintenance and support order can help couples protect themselves financially and resolve child custody and visitation issues during the separation period.

A couple doesn’t have to divorce after receiving an order of separate maintenance and support.  The husband and wife may simply choose to remain separated.  This is an attractive option for couples that don’t want to divorce for religious reasons.  Couples may also choose separation without divorce to receive social security and military benefits, tax benefits, and coverage under one spouse’s health insurance.

An order of separate maintenance and support ends if the parties divorce, if the party receiving support lives with someone else in a romantic relationship, or if one of the parties dies.  It can also be terminated or modified based upon changed circumstances.

How to Get an Order of Separate Maintenance and Support

To apply for an order of separate maintenance and support, the spouse seeking the order must file a summons and complaint with the clerk of the Family Court.  The clerk countersigns the summons and it is served on the other spouse.  That spouse has 30 days to answer the complaint and raise any defense to the legal separation.  A judge will then hear the case and decide the issues or review any agreement the parties have reached.

In deciding whether support should be awarded, and the amount of that support, the judge may consider the following factors:

  • The length of the marriage and the ages of the parties when they married and separated
  • The physical and emotional condition of each spouse
  • Each spouse’s education and need for additional training or education
  • Each spouse’s employment history and earning potential
  • The couple’s standard of living during the marriage
  • The current and reasonably anticipated earnings of each spouse
  • Each spouse’s current and reasonably anticipated expenses and needs
  • Each spouse’s property, including property awarded in the separate maintenance action
  • Custody of the children, especially if it is appropriate for the parent who has custody to work less than full time
  • Marital misconduct, if it affected the parties’ economic circumstances or contributed to the breakup of the marriage
  • Tax consequences
  • Other support obligations from a prior marriage
  • Any other relevant factors

If you have separated from your spouse or are considering separation or divorce, it is important to contact a divorce lawyer right away.  A lawyer can explain your rights and advise you on actions you can take to protect yourself financially.


Photo Credit: Keoni Cabral cc