Separation Agreement Defined
A South Carolina Separation Agreement is effectively an out-of-court divorce document meant to set out the rights and obligations of a Husband and/or Wife if they no longer wish to live together as husband and wife. More specifically, the purpose of a Separation Agreement in the State of South Carolina is to define the parties’ respective rights, responsibilities and financial obligations as it concerns the following: children, child support, visitation, alimony and/or equitable division of assets and debts. Such agreements are almost always accompanied by an Affidavit in Support there of as required by S.C.Code Section 20-7-175. A Divorce Complaint is typically filed by one party after the execution of a Separation Agreement wherein a Court of competent jurisdiction incorporates same by Order. If executed properly , a Separation Agreement will effectively terminate the other party’s right to seek a Final Divorce Order on number of grounds otherwise available. Examples of the more common grounds to obtain a divorce in South Carolina include: one year separation, adultery, physical harm, habitual drug & alcohol abuse, desertion, and/or insanity. A Separation Agreement is not a divorce per se; rather, it is a contract between Husband and Wife that can be incorporated by the Family Court in subsequent proceedings. On this note, a Separation Agreement does not need to be filed with the Court in a separate action unless a party fears the execution of a Separation Agreement would destroy a viable ground for divorce. For example, if Husband executes a Separation Agreement without Wife’s knowledge, Wife may be able to use same as basis for adultery.
Separation Agreement Requirements in South Carolina
There are legal requirements that must be met for a trial court in South Carolina to consider issuing a marital separation agreement. In addition to eligibility requirements, various documents and statutory guidelines must be followed when creating these separation agreements.
Eligibility
In South Carolina, a person seeking a divorce must meet the following eligibility requirements:
Necessary Documentation
Prior to the finalization of the divorce, the parties will be required to enter into a written contract setting forth the terms of their separation. A formal petition or lawsuit is then filed with the court.
If the defendant cannot be found, a divorce can be obtained with the proper notification to the defendant by domestic mailing, if the defendant resides within the state, or by publication, which is done by publishing an advertisement in the local newspaper for thirty days.
While many couples choose to create an agreement that is filed with the court when they receive the divorce, the parties may create the formal written agreement and file it with the court at a later date. A couple that follows this route can enter into the agreement any time after the separation and prior to court action on either party’s part that affects property rights. If the agreement is not filed with the court, it is an agreement between the two parties alone, and is not enforceable in court unless it meets the requirements set forth below.
Requirements for Formal Separation Agreement
A formal separation agreement, also referred to as a separation and property settlement agreement, must be in writing, witnessed in front of two witnesses, signed by both parties and should be legally notarized. It is recommended that the agreement include a statement that the agreement was voluntarily entered into by both parties and authorized by the respective parties for their own benefit. It must also be stated that the parties have relied upon their own counsel where needed.
If the written separation agreement is not replaced by a decree of divorce, it is enforceable in the same manner as a court order in any action filed by one of the parties against the other, in an action that impacts the property rights of the parties. It is also enforceable by contempt of court. However, if a party violates the agreement, that party will not be responsible for contempt if he or she is complying with a court order, and is unable to comply with the written agreement due to changed circumstances.
Separation Agreement Advantages
The benefits of a separation agreement are that a couple in the process of separation can take the time to discuss and worked out the issues addressed in their separation agreement before they ever filed in Circuit Court an action for Divorce from Bed and Board or for Divorce after separation (See articles on NC Divorce From Bed and Board and NC Uncontested Divorce). A separation agreement is beneficial for both parties as it can answer many questions surrounding the Division of Property, Child Custody and Visitation and Financial Support. A separation agreement entered into by both parties affords them with protection as the agreement can provide strict guidelines for any number of issues, such as the payment of joint debts, insurance coverage, how to handle future parenting issues, guidelines for how to proceed to divorce at some time in the future if the parties desire to do so and may also provide a timeframe for the sale of property, payment of support and a method to resolve future issues if they should arise. A separation agreement must be voluntarily entered into by both spouses and must be fair and equitable to both parties.
How to Create a Separation Agreement
Drafting a South Carolina separation agreement is similar to drafting a divorce settlement because both documents divide property and debts and provide for child support and custody. Fortunately, in South Carolina the law has made both divorce settlements and separation agreements (which are a marital settlement agreement) effective and enforceable even if they not signed by a Judge or not notarized.
The most significant difference in South Carolina between a divorce settlement and a separation agreement is the fact that the divorce settlement can be placed immediately into a Final Judgment of Divorce whereas in South Carolina a separation agreement may a) filed with the court; b) used to request exclusive divorce grounds; or c) filed with the court and made a part of a final judgment by written agreement of the parties or subsequent petition to the court. However, once incorporated into a Final Judgment of Divorce, as set forth above, the separation agreement is enforceable against third parties.
Here are some tips for a comprehensive separation agreement in South Carolina:
- Set forth all terms to your agreement including grounds for divorce if applicable;
- Include the full names and addresses of all parties to the agreement;
- Describe all property being awarded to each party;
- Describe how debts will be paid;
- Set forth the payment of attorneys fees, if any;
- Make sure there are no outstanding issues with the child support guidelines;
- Provide for health care insurance;
- If applicable, make sure there is a waiver of alimony section;
- Make sure you follow the law on full and fair disclosure of assets;
- Ensure that all children are accounted for with the appropriate custodial arrangement set forth clearly;
- Make sure there are clear terms for adjustment to child support in the future; and
- Have both parties sign the agreement before a notary and have the notary complete a witness certification signed by both parties.
If you find a substantial portion of this list does not reflect what you have as part of your written separation agreement, you may want to consider hiring an experienced family law attorney to assist you, your spouse and you on drafting a separations agreement that is correct, comprehensive and effective.
Separation Agreement Pitfalls and Errors
A divorce can be an emotional and complex process, which often leads to parties rushing into a marriage ending too quickly. The reality is that some of the agreements and provisions they include in the document will hurt them in the long run. Below you will find some of the things that couples should look out for when preparing an agreement.
Don’t have too many "vague" terms. It’s easy to throw in the terms "reasonable" or "as practical as possible" but this could hurt you later on. If a couple gets divorced and one party has to vacate the family home, then there shouldn’t be uncertainty about what happens next. When one party moves out, they should take their property with them. Unfortunately, the other party may not be so willing to let the other have their property back. This is especially true if children are involved and the one parent wants the children to have their belongings, while the other disagrees.
Parties don’t consider the possibilities of change. Parties should also think about what could happen 5-10-20 years down the line. For example , what happens if one spouse decides to move out of state at a later date? You can’t predict the future for me, but you should research the laws regarding children and single parents and put in a provision that protects your parental rights. If one party decides to move without the children when they’re older, they will be more likely to get 50/50 time in the divorce filing because children over 14 can choose which parent they want to reside with.
Don’t agree to terms without getting legal advice. Couples often decide to save money by agreeing to something like "split the cost of braces for the children" rather than hiring an attorney. Not even a simple consultation with a divorce attorney is useless! They will know crucial information that you and your partner don’t and will help you see things from a legal point of view. You don’t want to agree to something that will hurt you in the long run.
Amending a Separation Agreement
A separation agreement can usually be modified by the parties, but that does not mean that the modification need be evidenced by the writing itself. Many times people modify their separation agreements (and some people do this even when it is not advisable) with just a handshake. When child support is involved, a Child Support Enforcement (IV-D) case must be initiated in the Family Court to have the order modified, and that order will become evidence of the modification for the parties’ income withholding orders.
For separating parents, there are cases where a material (substantial) change in circumstances justifies a deviation from the statutory guidelines. If a child is going to qualify for Medicaid, SSI or the additional child tax credit, child support should be below the amount prescribed by the child support guidelines. That determination, however, must be made in some form of writing. Mere words that the parties agree the guidelines formula would be too much are not sufficient. Rather, the guideline consideration must be there, the explanation of the amount agreed to or ordered as child support must be there, and the agreement or court order must be signed by both parties (if in agreement) or by both parties and the family court judge (court order). If the agreement is not later proved, you will end up back at court to determine what the child is entitled to regarding support.
Both parties to the separation agreement are bound by the entire agreement as originally executed unless its terms are later changed by the parties or the court.
Where there is a waiver of child support, the waiver must be written and signed by both parties. It is very important for you to understand that a written waiver of child support does not mean that child support cannot be sought or that it cannot be obtained from a third party such as a grandparent. The waiver only means that the adult parent may agree that child support is not required to be paid to him/her or his/her family.
When child support is involved and the adult parents agree to waive child support, the waiver must be drafted and signed by both adults, must bear the notarized signature of the parent who will not be receiving child support, and must be attached as an exhibit to the original separation agreement signed by both parties.
Resources & Legal Help
For those seeking resources and legal assistance for separation agreement forms in South Carolina, there are several avenues to explore. The South Carolina Legal Services is a nonprofit that provides free legal assistance in civil cases to residents who cannot afford an attorney. They have a family law self-help pamphlet available on their website, which provides information about separation agreements and how they work.
The South Carolina Bar Association also has a family law section on its website with various resources and articles about family law issues, including separation agreements. In addition, the American Bar Association’s website provides information on family law, including links to local and state bar associations, legal aid organizations, and online resources.
South Carolina residents may also benefit from reaching out to a local family law attorney who specializes in separation agreement forms . Many attorneys offer free consultations and can provide valuable guidance on the process of creating or modifying a separation agreement.
Finally, for those who prefer an online approach, there are several websites that offer resources and forms for creating a separation agreement. Nolo.com is a popular resource for self-help legal forms and information, and they offer a separation agreement form specific to South Carolina. Similarly, RocketLawyer.com also offers online legal services and forms for creating a separation agreement that complies with South Carolina law.
In conclusion, individuals in South Carolina seeking resources and legal assistance for separation agreement forms can explore a variety of options, including local legal aid organizations, bar associations, online resources, and family law attorneys.