THE MCMILLIAN LAW FIRM - CHARLESTON, SC AND SUMMERVILLE, SC FAMILY LAW AND DIVORCE ATTORNEY
The holidays are perceived by most people as a time that families unite, become one in spirit, and experience unbridled joy and exuberance. Unfortunately, the fact of the matter is that the Christmas season is one of the most active times of year for Family Law attorneys in Charleston, South Carolina. The holidays bring about a sense of wanting and anxiety that often tip many marital relationships over the edge and onto the path of dissolution.
The topic of this article will be to outline the options you may have that can be immediately acted upon if you need to separate and liberate yourself from a destructive relationship during the holiday season.
Remember, you can take legal action tomorrow if you need to . . . here are the steps to begin getting your life back!
THERE IS NO LEGAL SEPARATION IN CHARLESTON, SOUTH CAROLINA
Any discussion with a potential client concerning an immediate separation from a spouse must start from the premise that South Carolina Law does not recognize "legal separation" as a legal status. When I tell clients this, I usually get a confused look along the lines of "what does that mean, I can't leave?" Of course not, you have the legal right to separate and begin the process of dissolving the marriage at your own free will, it's just that in South Carolina there is a process, with several options, that you must follow to properly classify your status as separated in the eyes of the law.
SEPARATION = YOU MUST PHYSICALLY LEAVE!!
The first step in any action in a South Carolina Family Court that will use separation as a claim to support the basis of the legal claim (whether it be Separate Support and Maintenance or Divorce on One Year Separation) is that you actually separate from the spouse. This single requirement should go without saying but to be honest, I have had clients attempt to game the system by living together but claiming "separation" in order to expedite a divorce. You must understand that separation means literally separation!! There is no way around this . . . either you or the spouse has to go!
IS IT MUTUAL? THE SEPARATION AGREEMENT
This is the first fork in the road on the path to "legalizing" your separation and working towards a dissolution of the marital relationship. Often times, the separation will be something that is "mutual"; meaning that both parties have decided to split and that most of the terms of the split up have been passively adopted. One spouse leaves the home, the other spouse stays, one makes the car payment, the other will make their own cell phone payments, one will keep the kids, etc. If this is your situation, I always advise that the separation terms be reduced to writing. If the split up appears to be on mutual consent, why not get the terms of the split up, or at least any terms that can be agreed upon, reduced to writing. This will not only provide clarity between the parties, but as a general rule of thumb, the ore items that can be reduced to an agreement and settled prior to the final dissolution of the marriage in front of the Family Court judge can greatly reduce exposure to legal fees! Of course, I would recommend that you consult a Family Law attorney in Charleston, South Carolina to assist in the drafting of a separation agreement so that all the proper language and legal requirements needed for court approval down the road are met.
LOCK DOWN YOUR AGREEMENT - SEPARATE SUPPORT AND MAINTENANCE
If you have a separation agreement documented, even if it doesn't settle all terms of the separation and subsequent divorce, I recommend that you initiate an action for Separate Support and Maintenance in Family Court. An action for Separate Support and Maintenance is a legal action that allows parties, who otherwise do not have an existing grounds for divorce, to get into Family Court to litigate all the other issues pertinent to the martial relationship (alimony, child support, child custody, distribution of marital assets, etc.). The specific purpose for this legal action is to allowed separated parties access to Family Court to get legal finality on issues that otherwise would fester or be neglected during a period of separation.
An action for Separate Support and Maintenance involves the filing of a Summons and Complaint, just like a Divorce action. The responding party is granted 30 days to respond, and beyond that a hearing will be schedule by the Family Court judge to hear the case on its merits.
The beauty of the action for Separate Support and Maintenance is that you can present a separation agreement to the Family Court, and if certain legal barriers have been cleared (is the agreement fair, required financial disclosures made, was entered into voluntarily, and did everyone get a chance to consult an attorney), the Court will incorporate your separation agreement into a court Order. Why is it important to have a separation agreement incorporated into a court Order? This makes the agreement enforceable through the Family Court should your spouse attempt to breach or renege on the agreement.
Prior to being incorporated into a court Order, the separation agreement is pretty much unenforceable! This is a critical step in protecting the terms of your agreement.
WHAT IF MY SPOUSE WILL NOT AGREE TO TERMS IN AN AGREEMENT?
Here is the beauty of the system, so to speak. If you separate from a spouse and the other party refuses to cooperate, or to negotiate a separation, and generally takes the position of making the separation difficult, you can still file an action for Separate Support and Maintenance. The major difference in this style of transaction will be that instead of offering the court a negotiated agreement to approve and adopt, the issues that are incident to the separation (child support, custody, alimony, distribution of marital assets, etc,) will be ruled upon and the terms set by the Family Court judge.
THE THING TO REMEMBER IS THAT YOU ARE NOT STUCK!
The major concept to remember when it comes to separating from a spouse is that you are not stuck waiting for the one-year separation period to run before you can access the Family Court to get your affairs in order. The ability to file an action for Separate Support and Maintenance serves as a bridge to allow you to get the terms of your split up documented and enforced during the waiting period!
WRAPPING IT ALL UP - GETTING THE DIVORCE
An action for Separate Support and Maintenance will do everything that an action for Divorce will do . . . except get you a divorce!!! Once you and the spouse have been separated for a year, you will then be eligible to file for a Divorce based upon one year continuous separation. Remember, this Divorce action can not be filed until the grounds for the divorce exist.
The Final Divorce will involve the filing of another Summons and Complaint. However, the "shortcut" in this proceeding will be that you will ask the court to adopt and incorporate the agreement / court rulings that were established in the initial Separate Support and Maintenance that finalized all the other issues. The only remaining issue before the court will be the granting of the divorce, and if the waiting period has been satisfied, voila!!
THE MCMILLIAN LAW FIRM - YOUR CHARLESTON, SC AND SUMMERVILLE, SC FAMILY LAW ATTORNEY
There is a right way and a wrong way to navigate through a separation and a subsequent divorce. I implore that you get assistance of a Charleston, South Carolina Family Law Attorney to help you travel this path and make sure all your legal options and rights are noted and disclosed.
If you live in Charleston, Mt. Pleasant, Summerville, Moncks Corner, James Island, West Ashley, Folly Beach, Johns Island, Walterboro, or any of the other fine communities of the South Carolina Low Country, do not wait another moment. Act now!! Contact The McMillian Law Firm and scheduled your free Family Law consultation today.