Should I Consider Filing for a “Legal Separation”

When you and your spouse have separated with the intention of getting a divorce you have 2 general options when filing depending on the circumstances of your case.  First, you could file for divorce.  South Carolina has five grounds for divorce – four fault-based grounds (physical cruelty, habitual drunkenness, adultery and abandonment) and one no-fault ground (continuous separation for more than one year).

The second option is that you can file for a decree of separate support and maintenance which is more commonly known as a legal separation?  When you file for separate support and maintenance, you will go through and resolve all of the same issues as if you were getting a divorce; however, you will not be divorced at the end of the case.

There is a certain amount of art that goes into determining how you want to file.  Sometimes, there is no fault-based ground for divorce available for your situation, but there are other facts that cause us to want to go ahead and get the case filed immediately.  For example, you have young children and you need a custody order and some financial assistance from your spouse to make ends meet.

Other times, there are no pressing issues that require us to spend the money to file for separate support and maintenance, so it may be safe to wait for the year’s separation before filing anything.

This is not specific legal advice for your case as the facts and circumstances play a big role in determining how you should approach your legal issues.  Before you rely on this post (and blog) to determine what needs to happen in your case you should consult with a lawyer to ensure that all relevant facts are considered.

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