A separation period begins when you and your spouse consciously choose to live apart. To separate, you and your spouse must live in separate residences. It's almost impossible to prove that you are separated if you and your spouse simply live in different rooms in the same house.
For example, in one South Carolina case, the judge denied the wife's request for a legal separation and a maintenance order because she was still living in a house shared with her children and husband. The judge determined that her needs were adequately provided for and she wasn't actually separated from her husband. Notably, South Carolina doesn't recognize legal separations.
Couples choose to separate for different reasons. South Carolina requires couples to live separately for one year before divorcing in order to obtain a no-fault divorce. If you and your spouse break that separation period, a judge may have grounds to deny your divorce. You can avoid the one-year separation requirement if you're seeking a divorce on cruelty, adultery, or habitual drunkenness grounds.
Although spouses must separate before obtaining a divorce in South Carolina (with some exceptions), the state doesn't formally recognize legal separations. Separated spouses request temporary maintenance orders. Either spouse may file a maintenance action seeking alimony, property orders, or child support and may also request that a judge make an appropriate custody award. But as the above case demonstrates, spouses who aren't living separately aren't entitled to support.
Maintenance orders will typically address the same issues that would be decided in a divorce case. For example, in a maintenance order, a judge will decide child support, property issues, custody, visitation, spousal support, and medical insurance coverage as appropriate. Spouses can reach their own agreements or may leave matters up to a judge.
When spouses create their own maintenance or support agreement, they can do so on their own, or with the help of a mediator. A mediator is no substitute for legal counsel and mediators can't offer you or your spouse legal advice. However, a mediator may be able to help you and your spouse reach an agreement and draft an appropriate settlement or separation agreement.
Once you and your spouse have signed the agreement, you'll need to submit it to a judge for approval. Before turning the agreement into an official court order, a judge will ensure that the agreement isn't grossly unfair and that it meets your children's best interests if you have kids.
Alternatively, a judge may schedule a hearing to decide temporary maintenance orders in your case. Specifically, a judge will hear testimony and evidence supporting each spouse's claims. A judge will look at your family's overall circumstances and needs including factors such as each spouse's age and health, work history and earning capacity, the child's needs, and adjustment to school and community.
Separations don't end a marriage and neither do separation orders. A separation or maintenance order may award spousal support and divide assets, but you're restrained from excessive spending and from selling or transferring marital assets while the maintenance order is in place.
This is unlike a divorce, which is a final order and dissolves the marital estate. When you're divorced, you can remarry, move across the county or purchase rental properties and your ex can't stop you. During a separation period, the fewer changes you make, the better. Essentially, during a separation, your life is in a stalemate—you can't really move forward.
While there are limitations to separations, there are also some definite financial benefits. A separation period gives couples time to sort out their marital estate and possibly even resolve certain issues before starting their divorce. The less time you spend battling out matters in court, the less expensive and time consuming your divorce will be.
In some circumstances, a spouse may remain on the other's health insurance during and after a separation—it's important to check the specific terms of your insurance benefits to make sure a separation is not a disqualifying event. This is prohibited during a divorce. Finally, in situations where one spouse has been out of the workforce for several years, a separation period may give an unemployed spouse the chance to find a job.
Even though they're designed to be temporary, maintenance orders may affect future orders in your divorce. This is particularly true if a judge issued a maintenance order after a court hearing. If a court issued a decision in your case (rather than you and your spouse reaching an agreement), the judge likely considered a lot of evidence before making a decision on how to divide property or custody.
Unless you can show that your family's circumstances have changed drastically since the maintenance order was issued, a judge is unlikely to adjust property, support, or custody awards in your divorce.
If you have questions, you should speak to a local family law attorney for advice.