Do I Have to File Divorce Paperwork Before Separating in South Carolina?

by Valerie Stevens
    In South Carolina, the husband or wife must move out of the residence before filing for divorce based on a separation.

    In South Carolina, the husband or wife must move out of the residence before filing for divorce based on a separation.

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    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.

    Legal Grounds

    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.

    Divorce

    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.

    Separation

    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.

    Agreements

    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.

    About the Author

    Valerie Stevens is a professional writer and editor based in the Carolinas. She worked at daily newspapers for 20 years. Stevens holds a bachelor's degree in journalism and has a degree in paralegal studies.

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