What is an Order for Separate Maintenance and Support in SC?
Most people would call it a “legal separation,” although that’s not technically correct. South Carolina does not recognize “legal separation,” but the family court can issue an Order for Separate Maintenance and Support at a temporary hearing that addresses immediate issues, like alimony, that cannot wait for a final divorce decree.
Separate maintenance and support means alimony, which is just one of the issues that the court can address at your temporary hearing.
In this article, you will learn:
- What an Order for Separate Support and Maintenance means in SC,
- What you can accomplish with an Order for Separate Maintenance and Support, and
- How to file for separate maintenance and support in the family court.
Separate Maintenance & Support vs. Divorce
What is an Order for Separate Maintenance and Support, what can it accomplish, and why do you need one?
Orders for Separate Maintenance and Support in SC
An Order for Separate Support and Maintenance is not a divorce.
Before you can file an action asking for separate maintenance and support, however, you must be physically separated – meaning you must live in separate residences (see, Ariail v. Ariail).
If you are separated from your spouse, it may not be feasible to wait for a final divorce hearing before resolving important and pressing issues like whether your spouse will make monthly alimony payments to you.
Separate maintenance and support is often ordered at a temporary hearing that can be scheduled early on in a divorce case, or it can be filed as a separate action whether or not you are asking the court for a divorce.
Do You Need an Order for Separate Maintenance and Support?
SC does not require a “legal separation” before you can get your final divorce decree, although you may be required to live separate and apart for one year if it is a no-fault divorce. An Order for Separate Maintenance and Support is not required for you to get your divorce.
It is, however, essential in some divorce cases to have a temporary order, issued at what is called a temporary hearing, to protect your financial interests, your right to custody or visitation, and to resolve other issues that cannot wait until a final hearing is scheduled.
Another benefit to a temporary order for separate support and maintenance is that it sets the stage for the final divorce hearing. Although it is temporary and the family court can change the Order later, the result is often incorporated into the final divorce decree.
If your spouse is ordered to pay alimony today, they are more likely to be ordered to pay alimony at your final hearing. Similarly, if you are granted full custody of your children today, it goes well, and there are no changes before your final hearing, you are more likely to be granted full custody at the final hearing as well.
What Does an Order for Separate Support and Maintenance Do?
Although “separate support and maintenance” implies the payment of alimony, there are many issues that the court can resolve at a temporary hearing including:
- Child custody,
- Child visitation,
- Child support,
- Alimony,
- Who will maintain marital assets,
- Who will pay marital debts,
- Who remains in the family home,
- Who keeps which vehicles, and when titles must be transferred from one spouse to the other,
- Who is responsible for paying the mortgage or other costs associated with upkeep of the home,
- Who will keep personal property from the household,
- Who maintains control of joint bank accounts,
- Who will maintain health insurance for the parents and children, and
- Whether restraining orders are necessary.
Again, the Order issued by the court at a temporary hearing is subject to change at the final divorce hearing, but it is designed to resolve the immediate issues that just cannot wait for a final hearing.
Filing for Separate Maintenance and Support in SC
Your attorney will file a Summons and Complaint asking the court for an Order of Separate Maintenance and Support, along with a Notice and Motion for Temporary Relief. All pleadings are then served on your spouse, who will then have an opportunity to respond by filing an Answer that may also contain counterclaims.
The court will then schedule a temporary hearing, where the court will decide the issues, often based on affidavits submitted by each party. In many cases, we will reach an agreement with your spouse or their attorney before the hearing, in which case the court will review the agreement to ensure that it is fair to both parties, that it is in the best interests of any minor children, and that it complies with SC law.
The Court’s order, as to separate maintenance and support and other issues that may be resolved at the temporary hearing, will remain in place until there is a Settlement Agreement that resolves all issues or until the final hearing in your divorce proceedings.
Can You Only Get Separate Support and Maintenance in a Divorce Case?
Although separate maintenance and support is often requested in the context of divorce proceedings, you can ask the court for separate support and maintenance without filing for divorce – some people choose to remain separated but, for religious or other reasons, choose not to seek a divorce.
If you have filed for divorce but no grounds for divorce are proven at the final hearing, the SC Supreme Court has said that the court can then treat the divorce action as an action for separate support and maintenance and still order relief.
If one of the parties files an action for separate maintenance and support but does not file a divorce action, they can still file a divorce action, either as a supplemental pleading or as a separate action after the separate support and maintenance action has been resolved.
Questions About Separate Maintenance and Support in SC?
If you are considering divorce, or if you are separated from your spouse and need the court’s assistance with alimony, child support, or child custody, contact the SC divorce attorneys at Templeton, Mims & Ward at (843) 891-6100 or by sending us an email through our website to set up a consultation and find out how we can help.