The One Year Separation “Myth”
One of the most common frustrations we hear from potential clients in South Carolina is the “one-year rule.” Many people believe that because South Carolina requires a one-year separation for a no-fault divorce, they are legally paralyzed until that anniversary hits. They assume they cannot ask the Family Court for help with finances, custody, or property possession until they have lived apart for 365 days.
This is a myth.
While you cannot get a final divorce decree based on one year’s separation until that year has passed, you do not have to wait to file an action for Separate Support and Maintenance.
What is Separate Support and Maintenance?
South Carolina does not have a status formally called “legal separation” or “legally separated” – to be clear, and as I explain to clients and potential clients, marriage is “like a light switch – you are either married or divorced”. On the other hand, we do have an action for Separate Support and Maintenance (some will refer to this as Separate Maintenance and Support, but it is an identical concept). This is a lawsuit filed in Family Court that addresses almost every issue a divorce would address, except for the actual dissolution of the marriage bond (except for the “divorce itself”).
If you and your spouse are living apart (in separate residences), you can file for Separate Support and Maintenance immediately. You do not need to wait a year or have a fault based ground for divorce. Filing sooner rather than later (once separated – i.e. – not waiting a year) is often important for protecting your financial and parental rights.
Why File Now Instead of Waiting?
If you simply move out and wait for the year to clock out, you are leaving your life to chance. Filing for Separate Support and Maintenance allows the Family Court to issue a Temporary Order (sometimes referred to by the “fancy name” of “Pendente Lite Order” that establishes the “rules of the road” while the clock ticks toward your divorce eligibility.
Here is what an action for Separate Support and Maintenance can (potentially – every situation is different) do for you immediately:
1. Establish Financial Support If you are the lower-earning spouse, you may be struggling to pay bills after a separation. The Court can (has the power to) order spousal support and child support on a temporary basis. Conversely, if you are the higher earner, a court order can prevent your spouse from coming back months later claiming you “abandoned” them financially, or it can set a fixed amount so you aren’t drained by unpredictable demands for money.
2. Define Custody and Visitation Handshake agreements regarding children often fall apart. Filing an action allows the Court to set a specific, enforceable custody, and visitation schedule (or to approve a written agreement that formalizes the terms that may be working well). This prevents one parent from withholding the children or showing up unannounced.
3. Grant Exclusive Possession of the Home Who stays in the house before the issue of final possession is resolved? Without a court order, both spouses typically have equal rights to the marital home. This can lead to tense, and potentially dangerous, conflicts. The Court can grant one party “temporary exclusive use and possession” of the marital residence, meaning the other party cannot enter without permission.
4. Freeze Marital Assets A temporary order can be sought restricting certain financial actions and omissions. This type of temporary order prevents either spouse from draining bank accounts, selling marital property, changing insurance beneficiaries, or hiding assets during the separation period.
Don’t Navigate the Waiting Period Alone
At May River Family Law Solutions, we help clients in Bluffton, Hilton Head, and across the Lowcountry navigate this interim period with security and confidence. You do not have to wait a year to get the support and structure you need.
Ready to discuss your situation? Contact us today at 1-843-474-0614 (You Must Dial the “1” First) to schedule a confidential consultation. Let us help you understand your rights before the year is up.
Disclaimer: This information is for general educational purposes only and does not constitute legal advice. Every case is different. Please consult with a licensed attorney regarding your specific situation.
