How do I get a legal separation?

There is no such thing as “legal separation” in South Carolina. Instead, the South Carolina Family Courts will issue Orders of Separate Maintenance and Support. Such orders will provide specific details regarding child custody, visitation, child support, spousal support, as well as maintaining marital assets and paying marital debts until the case is resolved. In order to file for Separate Maintenance and Support, however, one spouse must have left the residence with the intent to live separate and apart or you must have facts that support one of the five fault-based grounds for divorce in South Carolina.

How long do you have to be separated before getting divorced in South Carolina?

In a no-fault situation, you must live separate and apart from your spouse for a period of one year before filing for absolute divorce. Unlike North Carolina, however, South Carolina still recognizes fault-based grounds for divorce where the Family Court will not require you to be physically separated for a year before filing for divorce.

Am I separated if we live in separate bedrooms?

Generally, no. In a no-fault situation, the law requires spouses to live separate and apart, meaning you must reside in separate residences. Separate addresses are the best evidence of this.

However, if you are alleging fault-based grounds, in some cases you may remain in the same household with your spouse and file for Divorce and Separate Maintenance and Support. An attorney will need to advise you in this regard at your initial consultation.

I live in South Carolina, but my children live in another state, where do I file/seek custody/visitation for them?

Typically, it is proper to bring the action in the state where the children have lived for the past six months. However, specific circumstances will determine where your custody case should be properly brought, and an attorney will need to advise you of this at your initial consultation.

How do I get my spouse removed from the marital residence?

South Carolina law does provide an avenue to have your spouse evicted from the home in very specific circumstances where fault-based grounds are present. If you desire to start the legal process but neither you or your spouse is willing to leave the martial home, it is important to speak to an attorney. We will help you understand your options.

If I move out, will my spouse claim abandonment?

Technically, desertion is one of the grounds for a fault-based divorce in South Carolina. However, that is a technical legal argument and the facts are very important. In the past, parties were required to live apart for three years in order to obtain a “no fault” divorce, so desertion was used more frequently. Today, the period of separation required for a no-fault divorce is the same as the period of desertion required for a fault-based divorce: one year. Therefore, desertion is rarely used because it is much easier to prove “no fault” one-year separation than the “fault” ground of desertion. It is still always best to consult with an attorney before you leave, just to be sure.

I live in South Carolina with my children, but their Father or Mother lives in another state. Where do I file/seek child support from them?

The specific circumstances of your case will determine where child support jurisdiction is proper. A family law attorney will need to advise you regarding jurisdiction in your initial consultation.

Do I have to let the other parent see the children if they do not pay child support?

Child custody and child support are unrelated issues. Parents see their children when they do not pay support, and parents pay support even if they are not getting to see their children. The focus is on the children and their needs, not the parents’ needs, which is a common misperception with child support.

Do I have to go to court?

There are many options for resolving your case amicably. In fact, South Carolina law requires parties to attend mediation before a contested trial is set. In your initial consultation, the attorney can advise you regarding mediation and other out of court solutions.

When you reach an agreement outside of court in South Carolina, you will still be required to attend a short hearing where a Family Court Judge will review the Agreement to make sure it is fair to both parties, in the best interest of the minor children, and that it follows South Carolina law. South Carolina also requires parties to attend a hearing for divorce regardless of whether it is on fault-based or not.

So, the simple answer to this question is yes, you will have to go to court at some point, but the specific circumstances of your case will determine how much.

How long will it take to get a resolution?

South Carolina has a one-year time limit to resolve Family Court cases. Therefore, you can expect that your case will be concluded within one year of filing. This includes all hearings and mediation.

Do you accept any pro bono cases?

We work with each of our clients to ensure reasonable payment depending on the type and complexity of each case, and each client’s respective financial situation. We are excellent stewards of client funds. Pro bono cases are accepted at the discretion of the firm’s founder, and consideration must be given to the number of cases we are handling as well as the difficulty of the situation. We can and will give you referrals to other agencies who handle civil litigation at reduced rates or pro bono.

Please visit our podcast page for information about other frequently asked questions.