When spouses have separated but do not have grounds for divorce, either one can file an action for “separate maintenance,” which is sometimes, improperly, referred to as an action for “legal separation.”
A separate maintenance action allows the family court to resolve all the issues that could be resolved in a divorce action except for granting a divorce. Thus, the family court can decide child custody, visitation and support for the parties’ children, equitably divide the marital property, and set or deny alimony. Issues that are resolved in a final order of separate maintenance, whether by court-approved agreement or through trial, are considered final and either cannot be modified or can only be modified upon a showing of a substantial change of circumstances. See What is and is not Modifiable in a Family Court Final Order?
To file a separate maintenance action, the parties must actually reside in separate residences. Ariail v. Ariail, 295 S.C. 486, 369 S.E.2d 146 (Ct.App. 1988). If a party files for divorce but no ground for divorce is proven at a final hearing, the family court can treat the action as one for separate support and maintenance. Gill v. Gill, 269, 337, 237 S.E.2d 382 (1977).
If a spouse develops a ground for divorce while the separate maintenance action is pending, that spouse may file a supplemental pleading to seek a divorce. If the separate maintenance action is resolved without a divorce being granted, a spouse may later file an action for divorce once he or she has a ground for divorce.
Basically, one should file an action for separate maintenance when one needs to resolve issues of child custody, visitation, child support, spousal support (a/k/a alimony) or property division but one does not yet have grounds for divorce.
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