Separation Agreements

Settlement Agreement

A separation agreement—also known as a marital settlement agreement—is a written contract that specifies the duties and obligations of separating or divorcing spouses. Although the phrase “legal separation” is often used in connection with such agreements, under South Carolina divorce law, spouses do not need to sign an agreement before separating. The parties can simply stop living together without any formal declaration or legal agreement. If the spouses plan to divorce, however, a separation agreement is highly advisable.

How Does a Separation Agreement Work?

Much like a premarital (or prenuptial) agreement, a separation agreement requires each spouse to retain his or her own attorney. This is, after all, a legally binding contract. Each spouse must disclose any property he or she owns, together with any other relevant financial information such as income and debts, to the other spouse.

Once signed, the separation agreement should be submitted to a South Carolina family court judge, who will grant final approval. This should be done even if the parties are not yet prepared to seek a divorce or other relief, such as alimony. Judges routinely approve settlement agreements unless there is evidence of fraud, error or coercion.

What Does a Separation Agreement Cover?

In South Carolina, all property acquired during a marriage is considered the “marital property” of both spouses. In the event of divorce without a settlement agreement, the family court will make an equitable division of marital property based on a variety of factors. A settlement agreement therefore allows the spouses to make their own division of marital property without the need for judicial intervention.

In addition to dividing property, a settlement agreement may also cover any maintenance and support—alimony—owed by one spouse to the other. The agreement may specify the frequency, term and amount of any spousal support payments. Again, in the absence of an agreement, one spouse may seek a judicial order against the other for support.

If the spouses have minor children, the separation agreement may also cover custody and visitation issues. The parties may agree to continue joint custody of the children or permit one spouse to serve as primary custodian. In reviewing any agreement on this subject, the family court is authorized to act in the “best interests of the children,” which may or may not be the same thing as the best interest of the spouses.

Does a Separation Agreement Mean Divorce?

As explained above, a separation agreement does not, by itself, constitute an action for divorce. Under South Carolina law, spouses must live “separate and apart” for at least one year before seeking a “no-fault” divorce. Otherwise, one spouse must sue the other for divorce based on fault such as adultery, desertion or physical cruelty. Whatever the case, the separation agreement may be submitted to a court before any divorce proceeding commences. The parties may still choose to reconcile even after the court approves a separation agreement.