Couples seeking divorce in Columbia, South Carolina must live apart in order for one spouse to seek monetary support in the interim, according to the South Carolina Supreme Court.
Family law expert Marcia Zug said it’s a legal requirement that makes divorce more difficult to obtain in this economy.
A Family Court judge dismissed Eileen Theisen’s request for support as she sought a divorce from her husband of 30 years, because the couple still lived under the same roof, though they slept in separate rooms.
The justices said it was the right decision.
Theisen was a homemaker for most of their union and complained that her husband had complete control of their assets.
Zug, a professor at the University Of South Carolina School Of Law, said lawyers were advising clients based on an assumption of the justices’ take on state law. And now they exactly know where the law is on the issue.
Zug added couples don’t have the money to set up a separate household, especially in this economy. That is why this has been an issue for most.
Zug explained if you’re a stay-at-home caregiver and have no separate income stream of your own, how are you supposed to set up a separate household?
Other states allow people to seek the support first so they can move out.
South Carolina didn’t allow divorce until 1949.
Zug said couples seeking a no-fault-divorce (neither cites infidelity or abuse) must first live apart for a year.
According to Zug’s rationale about the law, if you can live together, then maybe there’s a relationship to be saved. You can’t hate each other that much if you’re able to live under the same roof.
Zug added they want to save the marriage if there’s any possibility it can be saved.
Moving out entirely just shows that the marriage is over. It made sense to require a physical separation for monetary support and the court’s decision seems right, said Zug. But in this economy, there are good arguments for letting people get support and divorce while still living under the same roof.
Zug explained it’s one thing to stay together for the kids and it’s another thing to stay together for the finances. It especially impacts financially unequal couples.
Zug indicated if the financially weaker spouse needs money from the other to move out, that request can be exploited to control the divorce proceedings.
Zug is hoping that the ruling will encourage couples to seek prenuptial agreements, especially women who may want to leave the workforce at any time for family reasons.
On the other hand, Justice Costa Pleicones disagrees that couples should live separate for one to receive support.
He wrote, “the majority takes the state’s public policy strongly favoring marriage over divorce, and applies it to impose new obstacles to those seeking only separate maintenance and support, a non-terminal type of marital litigation which carries with it a greater hope of reconciliation.
He added, “public policy should recognize that financial impossibility may prevent a spouse from establishing a separate residence prior to receiving court-ordered support.
According to Judge Pleicones, access to the family court to a party who must, of financial necessity, remain in the marital abode, should not be denied.
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