In South Carolina, there is no such thing as a “legal separation.” This is an area of confusion for many couples, particularly those who are in the process of living apart for one year for the purpose of obtaining a no-fault divorce.

Couples in that situation, as well as others who choose to live apart but wish to remain married, are advised to seek an official decree of separate maintenance and support that outlines both parties’ rights and responsibilities. The decree addresses the same issues that are addressed in a divorce decree, including child custody and visitation, alimony, and division of property and debt. In fact, the terms of this decree subsequently are incorporated into the divorce decree.

It is a big mistake to wait until the divorce is final to settle these issues. Remember that ownership of property and debt are defined based on the date a divorced or separation is filed. Without a decree of separate maintenance, debt can continue to accumulate even though it is in only one spouse’s name, and assets in only one spouse’s name could become marital property.

There are several ways for couples to reach an agreement on separate support and maintenance. Sometimes they are able to work things out on their own, while in other situations their attorneys draft the agreement. Mediation before a neutral party is required if either of those other two steps fail. If mediation is not successful either, the divorce attorneys at Morton & Gettys are prepared to advocate for you in contested litigation in family court.

Even a couple who comes up with their own agreement should have a divorce lawyer such as the veteran attorneys at Morton & Gettys review the document. It is tempting at times to rely on do-it-yourself divorce paperwork, but this system is not always reliable. An experienced legal professional can identify mistakes and point out potential problem areas.

The divorce lawyers at Morton & Gettys have handled hundreds of these agreements and are intimately familiar with both the basic requirements and the little details that can make a huge difference.

We also have assisted clients with reconciliation agreements after the parties have had a change of heart about the divorce. Likewise, we can assist clients in creating prenuptial or pre-marital agreements that spell out terms before the marriage takes place. These are no longer tools reserved for the wealthy. A pre-marital agreement is also valuable for clients who want to maintain some level of financial independence, such as individual property ownership.

Michael B. Smith

Partner

P 803.366.3426  F 803.366.4044

Elizabeth Smith Owen

Partner

P 803.366.3388  F 803.366.4044