Support rules clarified: Couple seeking divorce must separate
COLUMBIA -- The state Supreme Court made it clear Monday that couples seeking a divorce must live apart in order for one spouse to seek monetary support in the interim.
It's a legal requirement that makes divorce more difficult to obtain in this economy, said family law expert Marcia Zug.
The justices said a Family Court judge was right to dismiss Eileen Theisen's request for support as she sought a divorce from her husband of 30 years, because the two still lived under the same roof, though they slept in separate rooms.
Lawyers for the couple did not immediately return messages Monday. According to the decision, Theisen was a homemaker for most of their marriage and complained her husband had complete control of the couple's assets.
The ruling was needed to clear up an unanswered question. Lawyers were advising clients based on an assumption of the justices' take on state law, said Zug, a professor at the University of South Carolina School of Law.
"Now we know exactly where the law is on this," she said. "This has been an issue because a lot of people, especially in this economy, don't have the money to set up a separate household. 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, so you can then ask for separate support?"
That's why people seek the support first -- so they can move out -- something other states allow, Zug said.
In a conservative state that didn't allow divorce until 1949, couples seeking a no-fault divorce -- in which neither cites infidelity or abuse -- must first live apart for a year.
"The feeling behind that is, 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 said about the law's rationale. "If there's any possibility your marriage can be saved, we want you to save your marriage. Moving out entirely shows the marriage is over."
Under that principle, it made sense to require a physical separation for monetary support, and the court's decision seems right, she said.
However, given this economy, there are good arguments for allowing people to get support and divorce while still living together, she said.
Zug said she hopes the ruling will encourage people to seek prenuptial agreements, particularly women who may decide to leave the workforce at any time for family reasons.
In his dissenting opinion, Justice Costa Pleicones said he disagrees that couples must live separate and apart for one to receive support. "Public policy should recognize that financial impossibility may prevent a spouse from establishing a separate residence prior to receiving court-ordered support. We should not deny access to the family court to a party who must, of financial necessity, remain in the marital abode."