In South Carolina, you cannot file divorce papers before separating from your spouse except in rare cases when you are still living together but filing on the grounds of physical cruelty, habitual drunkenness or adultery. To file for divorce on the “no-fault” basis of one year of continuous separation, you and your spouse must live in separate residences for a full year. However, you can file for an order of separate support and maintenance as soon as you are living apart from each other.
South Carolina law is strict about the requirement that the husband and wife must be continuously separated for one full year before filing. If the couple reunites sexually for even one night, it is up to the judge to decide whether they still qualify for a divorce on the grounds of one-year separation. According to South Carolina legal expert Roy T. Stuckey, some judges will allow the divorce in this case, whereas others will rule that the one-year period must start over because of the reconciliation.
At a final hearing for divorce on the grounds of one-year continuous separation, the person who files the divorce papers, the plaintiff, will have to present evidence that he has been physically separated from his spouse without reconciliation for one year. The court will accept the sworn testimony of the plaintiff and one witness. The witness must testify that he knows the plaintiff, knows he was separated from his wife and would know if they reconciled.
Unlike many states, there is no status of "legal separation" in South Carolina. Nevertheless, a couple can file for an order of separate support and maintenance, which establishes the rules the couple will live by during their separation. The husband or wife can file documents asking the court to rule on the issues of child custody and financial support. However, a final order in this case will deal with separate maintenance and support only. The separated couple would still have to file divorce papers after one year of separation.
Many couples who seek an order of separate maintenance and support reach an agreement before filing the court documents. Usually one or both of the spouses will hire a lawyer to help them come to a compromise on most of the custody and support issues. Their agreement will be put into writing and filed with their separation papers, which ask the judge to approve their agreement.
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