Friends in other states talk about being “legally separated” as though it were a status you file for. You want the same thing — some breathing room, an order about the children and the bills, without filing for divorce yet. So does legal separation in South Carolina exist, and if not, what do you actually ask a court for?

There is no decree that makes you legally separated

South Carolina does not have a proceeding that ends with an order declaring you separated. You are married until a court grants a divorce. No filing, no waiting period, and no agreement changes that status.

The Code does use the phrase, in more than one place. S.C. Code § 20-3-140 speaks of “all actions for separate support and maintenance, legal separation, or other marital litigation between the parties” when it addresses allowances of alimony and suit money. S.C. Code § 63-3-530(A)(2) uses it again, in the provision giving the family court exclusive jurisdiction “to hear and determine actions for divorce a vinculo matrimonii, separate support and maintenance, legal separation, and in other marital litigation between the parties.”

Neither one creates the proceeding. The first is about what a court may award inside an action; the second is about which court hears what. Neither sets out grounds, a petition, or a decree.

And this is not just an argument from silence. The Supreme Court has said so. In Rivenbark v. Rivenbark, 301 S.C. 175, 391 S.E.2d 232 (1990), a wife petitioned the family court for “a legal separation and an award of separate support and maintenance.” The Court noted, in a footnote to its opinion:

An action for legal separation cannot be maintained in South Carolina in the absence of constitutional or statutory authority. Although this action was brought in a peculiar form, we construe this action to be one for separate support and maintenance.

That is the whole of it, and it is also what happens in practice. Ask for a legal separation and the court will read your case as something else — an action for separate support and maintenance.

So the honest answer to the question is that people asking about legal separation in South Carolina almost always want one of two very different things. It is worth knowing which.

What you probably want: separate support and maintenance

One thing to settle before you read any further, because it decides whether this route is open to you at all: you have to be living apart already. In Theisen v. Theisen, 394 S.C. 434, 716 S.E.2d 271 (2011), the Supreme Court took up what it called “the novel issue of whether an action for separate maintenance and support can be pursued when the parties are still living together,” and held that it cannot. The family court’s dismissal was affirmed.

So if you are still under the same roof, this is not the filing to make yet. That does not leave you without options — a divorce on a fault ground can be filed while both spouses are still in the house — but the separate support and maintenance action is not available until you have actually separated.

This is the action that does the work people imagine legal separation does. You remain married, and the family court can still enter orders about support, custody, visitation, use of the marital home, and the debts, while the marriage continues.

Section 20-3-130(A) authorizes the court to grant alimony or separate maintenance and support “in proceedings for divorce from the bonds of matrimony, and in actions for separate maintenance and support.” Subsection (B)(5) then describes separate maintenance and support as a form of spousal support paid periodically, terminating on the supported spouse’s continued cohabitation, on the divorce of the parties, or on the death of either spouse — for “circumstances where a divorce is not sought, but it is necessary to provide for support of the supported spouse by way of separate maintenance and support when the parties are living separate and apart.”

People choose it for practical reasons: religious objections to divorce, keeping a spouse on health insurance, reaching a military or Social Security threshold, or not being ready yet. It gives you an enforceable order without ending the marriage.

The other thing people mean: the one-year separation

The second meaning is the road to a no-fault divorce. Under S.C. Code § 20-3-10(5), a divorce may be granted “on the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year.”

This is not a status you apply for. It is a fact you accumulate. Nobody stamps anything at the start of the year — you live apart, and after twelve continuous months either spouse may file on that ground.

The other four grounds in § 20-3-10 are fault-based — adultery, desertion for a year, physical cruelty, and habitual drunkenness. Our post on the grounds for divorce in South Carolina walks through each, and

why the one-year separation is usually the better route than desertion explains why the no-fault path is generally cleaner even when a fault ground exists.

Our post on the one-year requirement in filing for a no-fault divorce covers the ground in more detail.

Which path fits your situation

• —You want orders now and are not ready to divorce — separate support and maintenance.
• —You are certain the marriage is over and can live apart for a year — start the year and file on § 20-3-10(5).
• —You need to stay married for insurance, military, or religious reasons — separate support and maintenance.
• —You have a fault ground and cannot wait a year — a fault-based divorce can be filed as soon as the ground arises, without waiting out a year of separation, though it requires proof. Note the trade-off: under S.C. Code § 20-3-80 no final decree issues until three months after filing, and that delay applies to the fault grounds. The one-year separation and desertion grounds are the exception — there the decree may issue once the responsive pleadings are in or the defendant is in default.

One more requirement applies to divorce regardless of route. Section 20-3-30 requires the plaintiff to have resided in South Carolina at least one year before filing, or three months where both parties are residents when the action is commenced.

Frequently asked questions

Can we be legally separated in South Carolina if we sign an agreement?

A written agreement can settle support, custody, and property between you, and a court can approve it. What it cannot do is change your marital status — you remain married until a divorce is granted. An agreement is a contract, not a separation decree.

Can I file in South Carolina if I recently moved here?

Section 20-3-30 requires the plaintiff to have resided in South Carolina for at least a year before filing — or three months where both parties are residents when the action is commenced. For a servicemember stationed here on active duty, the statute counts continuous presence regardless of intent to remain permanently.

Do I need a court order before I move out?

No order is required to live separately. But moving out has consequences for custody, for use of the home, and potentially for a desertion allegation, so the sequence is worth discussing before you go rather than after.

Is separate support and maintenance the same as divorce?

No. It leaves the marriage intact. Neither spouse may remarry, and either can later file for divorce when the grounds exist.

Talk to a Charleston family law attorney

Choosing between separate support and maintenance and starting the one-year clock is a decision with real consequences for support, for the house, and for how a later divorce unfolds. Klok Law Firm handles South Carolina family law in Charleston, Mount Pleasant, Berkeley, and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.