Legal Separation vs. Divorce in South Carolina
South Carolina does not recognize “legal separation” the way many other states do. Instead, separated spouses can obtain a court-issued Order of Separate Maintenance and Support, which addresses many of the same issues as a divorce decree, while leaving the marriage legally intact. Divorce dissolves the marriage and finalizes those issues. Our Summerville divorce attorneys at Gil Gatch Law help clients decide which path makes sense, and when.
Residency Requirements Are Identical for Both
Residency requirements are identical for divorce and for an Order of Separate Maintenance and Support:
- If both spouses live in South Carolina, one of them must have done so for at least three months before filing.
- If only one spouse lives in South Carolina, that spouse must have done so for at least one year before filing.
Order of Separate Maintenance and Support
An Order of Separate Maintenance and Support is a court order. It typically requires that the parties be living separate and apart, and it can address:
- Temporary custody and visitation
- Child support
- Spousal support
- Use of the marital home and personal property
- Restraining orders on the dissipation of assets
This is a court order, not a private arrangement. Living apart by mutual agreement without a court order does not provide either party with the legal protections of a separate maintenance order.
Why Some Couples Choose Separation Over Divorce
- Religious or personal beliefs that disfavor divorce
- A period to test whether reconciliation is realistic
- Preserving certain benefits, such as health insurance, military spouse benefits, or Social Security spousal benefits, that require ten years of marriage
- Stabilizing the household with court-ordered support, custody, and possession terms while deciding next steps
The Costs and Risks of Staying Separated
- Cost. If divorce eventually happens, the parties pay for two proceedings instead of one.
- Dating. You are still legally married. Romantic involvement during separation can constitute adultery, and adultery bars alimony for the offending spouse.
- The alimony bar applies up until the earlier of (1) a written property or marital settlement agreement signed by both parties, or (2) entry of a permanent order of separate maintenance and support or an order approving a settlement agreement. Dating “after we agreed to split” is not a safe harbor unless something is filed and signed.
- Continuing financial entanglement. Joint debts, jointly titled property, and shared tax exposure all continue until the marriage is dissolved.
Grounds for Divorce in South Carolina
South Carolina recognizes one no-fault and four fault grounds for divorce:
- Continuous separation for one year without cohabitation (no fault)
- Adultery
- Physical cruelty
- Habitual drunkenness or habitual use of narcotic drugs
- Desertion for a period of one year (rarely used in practice because the one-year separation ground typically applies to similar facts)
Of these, only adultery automatically bars alimony to the offending spouse. The other fault grounds can still influence alimony, equitable division, and attorney fees, but they do not trigger an automatic bar.
What a Divorce Decree Resolves
A final divorce decree finalizes:
- Equitable apportionment of marital property and marital debt
- Child custody and visitation
- Child support
- Alimony, where appropriate
Most of these terms are modifiable only upon a showing of a substantial change in circumstances, and some terms are not modifiable at all, so the decisions made at the final hearing carry long-term consequences.
Talk to a Summerville Divorce Lawyer
At Gil Gatch Law, our Summerville divorce attorneys help clients evaluate whether separation, divorce, or a combination of the two best fits their situation. Call 843-800-2020 or contact us online.