South Carolina recognizes five grounds for divorce. The first four qualify as fault grounds for divorce and include (1) adultery, (2) desertion for a period of one year, (3) habitual intoxication (alcohol and/or drugs), and (4) physical cruelty. Our state laws also recognize and will grant a “no-fault” divorce if spouses have been living separate and apart, without cohabitation, for a period of one year.  The fault ground of “desertion” is actually rarely used now as it mirrors the no-fault “separate and apart” ground for divorce.

But what if the marriage is over, through no particular fault of either party, and issues of child custody, support, and property division need to be determined before the period of one year is up? None of the five grounds can be met, and South Carolina does not grant legal separations; thus it might appear that until the one-year separate and apart period tolls, the parties are at a stand-still.

Separate Maintenance Orders in South Carolina

In South Carolina, either of the parties can file for “separate maintenance” before being able to file for divorce under certain circumstances, where issues of custody/visitation, child support, alimony, and property are at immediate issue. Filing a separate maintenance action may be appropriate in the following situations:

  • If either spouse begins incurring substantial debt after separation, it will become a marital debt and the other spouse will be liable for it unless court action is taken immediately;
  • If there is fear that one spouse will destroy or hide assets, to avoid equitable distribution with the other spouse upon divorce;
  • If one spouse knows he/she will accumulate significant assets before the time to file for divorce, and does not want those assets to become marital assets and thus subject to equitable distribution; or
  • If there is an inability to make short-term agreements regarding custody and/or visitation, child and/or spousal support, or temporary distribution of assets (e.g. who gets to live in the marital home) before a divorce can be filed.

A separate maintenance order does not end the marriage; it merely allows for temporary decisions to be made, and enforced by a Court, before a divorce can be filed. Fundamental decisions regarding paying bills, child care, and living arrangements are temporarily ordered by a Judge until an actual divorce suit is ready to be instituted. The fact remains that even for spouses who have decided to separate, and who appear to be in the most amicable of terms, without a separate maintenance order, all there is to rely on is the other spouse’s word. When it comes to affairs of the heart, people become unpredictable, and it is safer to rely on an official Court order than one’s word.

Contact our Mt. Pleasant Family Lawyers to Discuss your Rights before Divorce

If you and your spouse are living apart, or are contemplating separation or divorce, it is critical that you contact an experienced family law attorney to determine the appropriate legal steps to protect your family and property. Please contact our family law attorneys today.