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South Carolina Legal Separation
Legal Separation in South Carolina
The South Carolina Code does not include a separate statute detailing legal separation. In fact, there is no legal status in South Carolina known as a legal separation. However, parties may elect to separate on their own in preparation for a divorce by choosing to cease cohabitation for a period of one year. In South Carolina separation simply means spouses no longer live together - a regime that may result from mutual consent or by one spouse leaving or being expelled from the marital home. Spouses who live in the same residence are not considered separate.
In South Carolina the proceeding that can take the place of a legal separation is called a Request for Separate Maintenance and Support. In this arrangement, the spouses divide their lives and live apart without ending their marriage, which allows spouses to continue to enjoy some of the benefits of marriage, such as tax advantages and health insurance coverage.
Couples sometimes choose to live separately without divorcing because one of them may hope that the marriage can be repaired. Separation gives a couple a period of time to see what it is like to live apart and perhaps regain a new perspective that can lead to reconciliation. Some people do this for religious reasons, and others do so for financial reasons involving things like insurance coverage and pension or Social Security eligibility.
Either spouse can file a petition for separate maintenance and support. The petition, called a summons and complaint, states that the spouses live separately and want a court to divide marital assets, possibly award alimony and decide child custody. The defendant has 30 days to file an answer stating his requests for property, alimony and custody.
In South Carolina, separate maintenance is a private agreement that separates and divides the couple and their marital estate but leaves them married. The family court nearly always approves the separation agreement of the parties if it is generally fair and the court believes that the spouses entered into it without fraud, mistake, or coercion. The court reviews the financial affidavits attached to the agreement in order to determine the accuracy of child support figures and the fairness of the property distribution.
In dividing the marital estate, South Carolina uses equitable distribution. Separate property is awarded to the individual spouse who owns it. All other marital property is divided between the spouses. As in a divorce, South Carolina courts award alimony to a spouse who needs the income to be self-supporting. As in a divorce, both parents have the right to seek custody of their children and no preference is given based on a parents gender. The court decides based on the best interests of the child.
A separation agreement is a legal binding contract signed by spouses, which is intended to resolve property, debt and child related issues. This can be a very complex and detailed document depending upon the unique situation of the marriage. Many spouses consult an attorney to provide this or they decide to prepare their own.
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