What is a South Carolina Separation Agreement?
A South Carolina Separation Agreement is a written contract entered into between a husband and a wife that resolves certain issues while the parties remain married but live separate and apart from one another. In some cases, the parties may also be separated under the same roof. While the contract of a divorce decree is the final word upon settlement of litigation between a husband and a wife, a separation agreement will not be binding on the parties in litigation between them. Instead, the written contract will have the status of a prenuptial agreement.
The legal effect of separating is that the parties are still married to one another . Because of this, you cannot file for divorce on the grounds of one year and must file for divorce on the grounds of adultery, Desertion for one year or Physical Cruelty. Consequently, a South Carolina Separation Agreement may not be a permanent solution to divorce if the parties intend to ultimately divorce from one another. However, extremely competent family law attorneys will use the Separation Agreement for purposes short of divorce.
In the event that the separation results in divorce, separation agreements are used to resolve matters related to support, the division of property and debt, and also custody, alimony and visitation.
Essentials of a South Carolina Separation Agreement
There are a few things that are generally addressed in a Separation Agreement in South Carolina: (1) Property Division; (2) Child Custody; (3) Child Support; (4) Alimony and (5) Debt Division. For property division, it is very common to have a listing of all properties owned by the parties and then a provision as to who gets what property after the divorce. It is important to have the provision as to property division very clear. If the parties cannot agree on the division of property, then the South Carolina court system will divide property for you under the laws governing equitable division in South Carolina. If it is a simple Divorce or Separation Agreement, the parties generally agree (or the law determines) that each party take the property in their possession, and all debts shall be divided equally. For example, assume that Husband has a truck, and Wife has a car. It is very common for a court to divide the property as the parties currently have it divided, with Husband getting the truck due to his possession of the truck and Wife getting the car due to her possession of the car. Any debts shall be paid jointly with the agreement that if one party does not pay a bill, then we will split it accordingly. That generally means that Wife may have to pay a credit card bill with a $50 balance in order to clean up her credit, but other than that, keep it simple.
The Legality of a Separation Agreement
Legally executed separation agreements in South Carolina operate much, much differently than non-binding agreements. They are essentially orders by the Court that are entered as a matter of law – provided certain procedures are followed. In South Carolina, there is no statute or common law that provides that a parties’ Separation Agreement is subject to approval by the Court or has to be incorporated into a final order in order to be binding. There are two ways to execute a legally-binding Separation Agreement – firstly, if the document is properly notarized by a notary public, and unambiguously and voluntarily signed by the parties, then it is imbued with the full force of law. Secondly, South Carolina Courts routinely reference and enforce Separation Agreements that appear to have not been notary-ized, so long as they are placed before a Family Court Judge as part of a motion for approval and child custody/parenting schedule, or as part of the final pleadings that are incorporated into a final decree and orders. So, if you and your spouse execute a written Separation Agreement, and you have it notarized, then that is all that is required to make the Separation Agreement legally binding between the two of you. In the event that the same Agreement is made part of the record by placement before a Family Court Judge, and/or is incorporated into a wider Order of the Court, then it still remains a "legal separation agreement" (and thus is subject to enforcement measures). It is given a little more "sauce" when attached as an Exhibit to a Court Form 404 – "Facts, Requests and Recommendations". The Form 404 is a "baked in" action for both divorce, separate maintenance and equitable apportionment of property. It is the most frequently presented document to the Court because it provides for child custody/visitation schedules, equitable apportionment, and may include some alimony provisions as well. It is usually executed by the parties, and notarized. The Family Court Judge then signs the document and makes it a part of the official Court file. Therefore, it also has the force and effect of an order issued from the Court – the same as if the Separation Agreement was incorporated into a final decree of divorce or separate maintenance/post-nuptial approval.
Advantages and Disadvantages of a Separation Agreement
As with most things, there are advantages and disadvantages with entering into a separation agreement. From a strategic point of view, many people will enter into a separation agreement with the goal of resolving all issues out of court. Even if you anticipate that complete resolution is unlikely, it’s possible that you can at least resolve most issues out of court. Given the backlog in the South Carolina family courts, adopting this strategy makes sense, but it is not without its risks.
A separation agreement is not really designed to address issues which, by law, do not become final until the divorce is final. Issues, such as changes to title affecting real estate owned by the parties, do not automatically pass by virtue of a legal separation. If the parties are relying on a separation agreement to transfer a marital asset, they must also return to court and secure a final order to affect the transfer. A party that does not appreciate the significance of these requirements can be surprised and disappointed when their spouse refuses to transfer the asset. Even worse, if they let too much time pass, they may be legally barred from returning to court to get the final order.
In general, South Carolina family courts have the discretion to review the terms of a separation agreement and determine whether the agreement addresses lawful considerations. The courts do not, however, have the ability to re-write the agreement. Where there is an imbalance in the terms of the agreement, for example one party receiving more property or assets than the other, the courts will sometimes refuse to accept the terms of, and make the agreement part of a final order.
If you are involved in preparing a separation agreement, the following issues should be addressed: A competent family law attorney will help you determine the right set of issues to be addressed in a separation agreement. Whether the agreement addresses all issues or just a subset, the attorney should ensure that the agreement conforms with requirements of the law so the agreement can be made part of a final order of the court. If the agreement is missing one of these key elements or fails to address an important issue, the attorney should not advise the client to draft and sign the agreement. It may be possible in that scenario to obtain a temporary order so that the parties can move forward unless or until the final order is obtained.
Separation Agreement Mistakes to Avoid
Separating from a spouse is often an emotional but necessary decision. Dividing assets, agreeing on custody and visitation or drawing up spousal support agreements in South Carolina can be tricky, and is often fraught with legal pitfalls to avoid. This is why you should always consult an attorney before signing any official document. Separating from a spouse is called a "legal separation" in some states, but in South Carolina we refer to it as a "separation." In South Carolina, however, there is no "legal separation" process per the South Carolina Code of Laws, Chapter 20. After being separated, you are not married under the law and you do not have the same protections you have during a marriage. You must follow a process to be formally divorced in South Carolina. After a couple separates, they often decide to draft a separation agreement that outlines terms for dividing those assets. However, there can be pitfalls to such documents if they are imperfectly executed. Some common mistakes associated with separation agreements include:
- Tax Considerations- Perhaps you made a trade-off during negotiations or ask your spouse to take on more debt because you believe your tax situation will provide greater benefit down the road . The process, however, is almost always more complicated than it appears. A reputable and experienced accountant will help you to ensure you are not leaving money on the table when dividing assets or paying cash to one party over another.
- Unforeseen Issues- Undoubtedly there will be issues of which you have not yet thought that can come up later. For example, if one party decides to pay off the mortgage, but doesn’t think a lot about future maintenance costs, expenses for children or re-escrow, they could find themselves stuck later. Similarly, if your spouse allows you to keep a vehicle and the vehicle is not paid off or has a loan balance, you will now responsible for payments and the car may be worth less than the loan amount.
- Alimony Conditions Changed, Or Is No Longer Required- If your spouse is to pay alimony and alimony has been pegged to the cost of living increases, the total amount of the alimony will fluctuate. Likewise, if circumstances change that affect the income of either spouse, the courts may revoke or modify the amount due.
While you may think you are covered for everything with the terms of your separation agreement, your separation agreement may include elements that leave you exposed. Revision to terms later is possible, but costly and time consuming.
When to Revise a Separation Agreement
You’ve lived with your separation agreement for a while, and everything works great. Now though, you’ve gotten a promotion and a pay raise, and your ex hasn’t done their part (as usual) to play their share of the parenting costs for the kids. Maybe you’ve gotten remarried or have had another child and that no longer suits your family’s needs. Or perhaps you’ve moved away from your old home and your parenting plan no longer fits your new living arrangements. Or maybe you just want to be done dealing with each other and it’s time to move on. These are just a few scenarios where your separation agreement may need an update.
Separation agreements, like most contracts, can be amended by agreement of both parties. In South Carolina, that means the parties must sign a new contract that references the original contract and states the changes. Without a written agreement, typically, the court will not enforce the second agreement as being valid. An exception to that rule is where one party can show that the second contract was relied upon (i.e., acted upon) since the parties intended for the second contract to be operative. It’s important to keep the language clear that the second agreement is merely an amendment to the first (the original) agreement so that there is no question about your intent when the documents are presented to the court for enforcement. In addition to the amendment, the parties should consider whether the changes require a new parenting plan, asset allocation, debt distribution, etc.
It’s important to remember that the separation agreement will continue on for your lifetime unless you do something to change it. The same is true for your final order of the divorce, as that document incorporates your separation agreement. No matter what the circumstances, if you agree to changes, make sure to get it in writing!
Separation Agreement Laws and Resources in South Carolina
In South Carolina, separation agreements are often entered into by parties who wish to deal with their affairs in an amicable manner and without the involvement of the court system. With the stress of separating from a spouse (and perhaps children) already in their lives, parties do not want to kick the door down to the courthouse in order to finalize the divorce.
As stated above, the parties can agree to stay out of court in a marital separation agreement if they choose to. However, if the parties do not feel comfortable with not getting the judge involved in a marital settlement, then the following must happen. The marital settlement agreement between the parties will be presented to the judge in order for the judge to incorporate the agreement by reference into the final decree of divorce. This type of divorce does not go in front of a judge like the typical divorce.
Most people do not know that the Family Court Jurisdiction does not have settlement agreements on the website. While the statute provides for the judges to have discretion over the acceptance of these agreements, the judges must also follow the law in doing so. In the case of Kirby v. Kirby, 410 S.C. 137, 762 S.E.2d 751 (Ct. App . 2014) the South Carolina Court of Appeals reviewed South Carolina case law on the enforceability of a marital settlement agreement, including Murphy v. Murphy, 276 S.C. 139, 276 S.E.2d 145 (1981), and Rayfield v. Rayfield, 371 S.C. 560, 610 S.E.2d 65 (Ct. App. 2005) and ascertained the following: We conclude that a marital settlement agreement is enforceable if: 1) the agreement was not the product of fraud, undue influence, or mistake; 2) there was full and fair disclosure by both parties; 3) the terms are fair and equitable; and 4) both parties were represented by independent counsel.
While many will think that they can save money by not hiring a lawyer and will enter into a marital settlement agreement on their own, there could be serious consequences down the road. If the marital settlement agreement is not drafted properly, the judge may not accept it. This will lead to either additional fees for a lawyer to clean up the new mess or litigation between the parties. Either way, additional fees are spent.
Fortunately, there are legal aid programs throughout South Carolina to help parties get through the separation process. These programs include the South Carolina Bar Association, South Carolina Legal Services and the South Carolina Pro Bono Asociation. The programs can identify pro bono attorneys that can help those in need.