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Legal Separation or Divorce: Which Is Right for Me?


Have you and your spouse decided to part ways? Depending on the circumstances of your relationship, you may want to consider pursuing a legal separation as either an alternative resolution or as a first step towards your ultimate divorce. But what exactly is a legal separation, and how is it different from a divorce?

Legal Separation: Definition and Benefits

Simply put, a legal separation is simply a court action that declares that you and your spouse no longer live together and are independent from one another, though you are still officially married. Technically speaking, there is no such thing as a "legal separation" in the state of South Carolina. Instead, an equivalent action known as an "Action for Separate Support and Maintenance" can be issued by a family court judge which allows couples to arrange solutions for many of the same issues as divorce, including child custody, visitation, property distribution, support arrangements, and determining who still lives in the family home.

Advantages to legal separation include:

  • Spouses may be able to maintain insurance or retirement benefits
  • Spouses can avoid the religious or moral scrutiny associated with divorce
  • Spouses usually can qualify for certain social security rules
  • It can allow couples to attempt to salvage their marriage without the pressure of cohabitation

Despite these benefits, it is important to remember that separated spouses are still married, therefore they may not attempt to marry someone else. Likewise, if one spouse dies, the other will still have a right to inherit all or part of the other spouse's estate.

Legal Separation as a Means for No-Fault Divorce

In many cases, couples choose to pursue a legal separation as a means of satisfying the requirements for a no-fault divorce. Unless couples are able to prove that their marriage has broken down due to infidelity, domestic violence, desertion, or substance abuse, family courts in South Carolina will only grant spouses with a no-fault divorce if they have lived separate and apart from one another for at least one year without cohabitation. While seeking an Action for Separate Support and Maintenance is not required, it can help make the eventual transition to divorce much simpler by establishing each party's rights and responsibilities during their separation.

Ultimately, determining which option is right for you will largely depend on the circumstances of your unique situation. If you are unsure whether or not a legal separation is right for you, contact the Columbia family lawyers at Masella Law Firm, P.A. With nearly 30 years of legal experience, we can help you understand your legal options and guide you towards the most appropriate course of action.

To find out more about how we can assist you, fill out an online form today to schedule your personalized case review.

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