Separate Support and Maintenance

Question 1

Is there an action for a Legal Separation in South Carolina?

Answer 1

No.

Question 2

What is the purpose of an action for Separate Support and Maintenance?

Answer 2

These actions are not defined by statute or case law in SC. They are essentially an action for alimony and child support that is used as a vehicle for resolving disputes between separated spouses who have not filed for divorce yet, or for couples who have filed but are subject to required waiting periods.
Once the parties have signed a formal separation agreement or are under a temporary order they may be referred to as “legally separated” but SC does not actually have an action for legal separation.

Question 3

What are the elements of separate support and maintenance?

Answer 3

See SC Code 20-3-130(B)(5)

• It terminates upon the divorce of the parties; it is only meant to provide for a separated (but still married) party, pendente lite, meaning throughout the pending litigation.
• It terminates upon the death of either spouse (unless it was secured as allowed by subsection (D))
• It terminates on the “continued cohabitation” of the supported spouse (see the 90 day rule)
• It is modifiable or terminable based on a substantial change in circumstances.
• The Family Court does not have to find “fault grounds” in order to make an award of separate support and maintenance
• But, if adultery is later proven then the court may order a spouse to repay the temporary alimony they received
• Also, the court may go ahead and divide the marital property in an action for separate support and maintenance

Question 4

If a separate support action is litigated unsuccessfully, can it be relitigated during a subsequent divorce proceeding?

Answer 4

No. Also, an agreement for spousal support may bar a subsequent request for alimony.

Question 5

What are the primary reasons one would file an action for separate support and maintenance?

Answer 5

• If the parties have not yet been separated for a year and there are no fault grounds upon which to seek a divorce, the filing of a separate support and maintenance action will set a date certain of separation that will be used in calculating property values.
• If the parties have reached an agreement that they wish to have approved by the Family Court

Question 6

Are actions for Separate Support and Maintenance completely separate actions than those for divorce?

Answer 6

Yes, however, generally actions for separate support and maintenance are followed by or amended to become actions for divorce.