Legal Separation Versus Divorce in South Carolina
Legal separation, which is accomplished by filing an action for separate maintenance, is a court resolution of issues similar to those resolved in divorce. Legal separation may be pursued by a party as an alternative to divorce where the parties are in agreement about the issues of custody, support and property division, and where the parties want to remain legally married for religious or other reasons. As the court is required to make determinations during a legal separation action, this process is frequently more costly than obtaining a no-fault divorce, which requires only the filing of a Joint Petition.
In addition to filing for separate maintenance, a spouse may file an action to obtain a legal separation by seeking a decree of separate maintenance from bed and board. This court-ordered decree allows a spouse to live separately apart from (and possibly receive child support or alimony from) the other spouse but does not entail a termination of the marriage. This type of action is generally costly, time-consuming and can be an adversarial process if the parties are not in agreement regarding all the issues involved . For these reasons, many parties pursue actually options for dissolving the marriage through divorce, pending which they may be required to enter into a temporary order providing for custody and child support issues, pending the final divorce hearing or administrative resolution.
Divorce requires the filing of a Petition for Divorce with the court, which has jurisdiction to grant the divorce. Under South Carolina law, the basic grounds for divorce are adultery and willful desertion. In the absence of grounds, a party may file for divorce on the grounds of one-year separation of the parties. As there is no court proceeding required to obtain a no fault divorce, this option entails lower costs than pursuing legal separation or fault-based divorce.
During the pendency of a divorce action, the parties may enter into a pendente lite (temporary) hearing to resolve custody, support and property issues until the final hearing for divorce. Individuals who are contemplating divorce should discuss their situation in-depth with a qualified family law practitioner to address not only the basis for an action (whether fault vs. no fault), but also the financial and personal impacts of the choices available.
A Brief Guide to Legal Fees and Costs
Attorneys fees for a legal separation in South Carolina are not much different than if you were to just divorce. In total, they are usually a little less than as there is no trial involved during most legal separations. However, many legal separations lead to a divorce so be cautious about the comparison. Attorney’s fees for a legal separation have probably gone up a little over the last 5 or 10 years to account for inflation.
Many people trying a legal separation do not want to get divorced. However, it is very common for those folks, sometimes a majority of the time, to end up divorcing so that is why we compare the two fees and expenses. As stated above, the fees and costs for a legal separation are a little less than a divorce case because there usually is no trial. However, some legal separation cases do go to trial and those fees will be similar to a total divorce. You could also have a trial in a divorce case, as many do.
Court costs are usually pretty low for legal separation cases. There are initial costs to file the suit (around $150) and maybe some investigative costs that are sometimes necessary if there is some hidden income or situation that is complicated. Those costs would apply to all family law cases and are not unique to just a legal separation. In fact, many court costs and litigation expenses are similar from a separation case to a divorce.
Cost Factors to Consider
The cost of a legal separation in South Carolina can vary greatly from one case to another. As with most divorce or family law proceedings, the complexity of the case has a big influence. For people whose separation case will involve a lot of spousal support, child support, and custody and property division disagreements, for instance, it’s likely to be very complicated and may require mediation and litigation to bring it to an end. This is something to keep in mind when you decide whether to do any of this on your own or not.
A typical separation case doesn’t have to be overly difficult, depending on the financial state of the family. If you and your spouse agree to be separated and live apart in a comfortable fashion while you deal with child support and property division, separation mediation may actually be able to help you finalize the case rather quickly and easily, keeping the costs down.
If you need a legal separation in South Carolina and are considering filing for one, consult with an experienced Myrtle Beach attorney for help.
How to Lower the Cost of a Legal Separation
There are a few different ways that you can save money on the cost of separation. For example, if you and your spouse are both in agreement that you want to separate without divorcing, an uncontested divorce may be a good option. It is essentially the same as a legal separation except it has less restrictions. You will need to speak with your spouse in depth to determine what kind of separation option is best for you.
Another common option is mediation. Not only will you save money by working directly with my firm rather than going to court, but you can also save yourself a lot of stress . In mediation, you and your spouse will work on coming to an agreement in a neutral environment. Once an agreement has been reached, an attorney will draft it up to be submitted to the court judge.
Lastly, you could look to see if you qualify for any legal aid services. This would save you the most money because they offer reduced fees or are completely free of charge. To find out if you qualify for one of these programs, you should be sure to ask your attorney.
Financial Considerations for Legal Separation
Factors separated spouses should consider when they are legally separated, part 5 of 6- a discussion with financial advisor Brian O’Connor: long term financial implications of legal separation
There can definitely be "financial sacrifices" once the decision to separate is made. Your expenses are going to go up. Let’s say in a house you’ve been living in for ten years. You may have a 10-year interest-only note – or 15-year. The loan was $100,000. Now it may be worth $150,000. As one parent is on that loan, they’re going to possibly be responsible for the equity. An equity sharing agreement is between you and your spouse where you split – at some point in the future – the equity in a home that you both have an interest in. And what that does is it keeps the home available to both parents so you have a place to live. At the same time, now you have two cell phones, you may have two cars. There were one car in the car payment category, now there may be two. Possibly two insurance payments. You have to eat out more. You have to pay to have your kids in daycare and after school programs. Other things are going on. It’s kind of the ‘shock of reality’ of no longer having two people to rely on the finances to being a solo act and really having to focus on both sides. The ‘shock of reality’ also impacts investing. You may find the money and pay down credit cards, but you may not be able to afford to put money away for retirement. If you’ve been in your job, you may be vested in your retirement plan, but all of a sudden you find yourself somewhere else. When that occurs, you may end up with doing a distribution from the retirement plan. And now that you’ve done a distribution from the retirement plan, you have taxes and penalties that you’re going to have to deal with. Now, that retirement plan may be nutritional. If you and your spouse owned a restaurant together, and the other person has a 401(k) plan, it may be $250,000. Now at the time of separation, you’re going to have to come up with your share of half of that money, also with taxes and penalties. So, now the tax and penalty spots the future – starting now – because you need to pay the taxes on that money that you probably are not even using. But it’s now going to grow – because it’s transactional – at a very high rate. Possibly double. Now you have lost the earning ability of that money. You may never get it back. As this is in your immediate future, you have to be mindful by doing something called a ‘Qualified Domestic Relations Order’, which allows you as a non-participant in the plan to receive the resources without taxes, penalties, and it also helps you avoid the ‘shock of reality’ because you often have the ability to transfer it into a new plan for yourself.
Cheap Legal Help
Those who are in great financial need can find affordable legal assistance through legal clinics run by various organizations. The South Carolina Legal Services, the Center for Heirs’ Property Preservation and the South Carolina Bar are just three of the many organizations that offer such pro bono services. Online services can be less expensive way to get basic legal guidance. There are many law firms who have a presence on the web. They feature varied practice areas, including legal separation, divorce or child custody arrangements, and may offer free consultations , advice by phone or E-mail on how to file a simple filing in Family Court and instructions, with forms to fill out, for those who prefer to represent themselves. Attorney fees can be high for those who cannot hire help, so many law firms offer payment plans, flat fees or a sliding scale based on the client’s income and what they could afford to pay. In addition to recommendations from friends and family, it is important that those in need of divorce services discover whether the attorney charges by the hour or offers a flat filing fee, since some are willing to make allowances based on their current economic situation.
