The laws and public policy of South Carolina favor marriage and discourage divorce.

A separation agreement can serve many useful purposes. It defines the rights and obligations of the parties. It may save taxes. It may save an appearance in court. It may reduce or avoid antagonism. It lets one acquire property exempt from division as marital property. It may halt the period where adultery will be a bar to alimony.

The law wisely requires each party to understand the separation agreement and freely agree with full knowledge of the facts. Also the agreement must be fair and equitable. Preparing a separation agreement which meets this test and is acceptable to each party, is difficult.

Each party to a separation agreement should have his or her own lawyer. See Chapter 2, Frequently Asked Questions, page 8, FAQ #3. This is true even in the most amicable separation. The family court judge should reject any separation agreement when one party is without his own, separate attorney. Family court judges do this more often, but still too many separation agreements are being “rubber stamped” by judges, leaving one party at a considerable disadvantage.

No separation agreement is binding upon either party until the family court approves it as an order.

It is my personal and professional practice to use separation agreements only sparingly. Usually a court order, which may be very similar to a separation agreement, is a better means to protect clients' rights.

Many separation agreements contain language that seems to allow the parties to date. A typical provision is, "Each party may live separately and apart with such persons and at such places as he or she may choose." These provisions are probably void as a matter of public policy and offer you no protection from an accusation of adultery if you date after separation. These provisions are of no value and are often harmful. See Chapter 13, Dating, page 35. Lawyers who include such language in separation agreements commit legal malpractice.

A popular misconception holds that a separation agreement is necessary to have a "legal separation." It is not. Everyone has heard of a “legal separation” but no one has heard of an “illegal separation.”

Never, absolutely never, sign a separation agreement without first having your lawyer review the separation agreement and advise you. Every year many unhappy people return to the family court seeking to set aside an unfair or inadequate separation agreement signed without legal advice a year earlier. The expense is great and success is rare.

My Favorite War Stories #13:
Separation Agreement Horror Stories

The husband had a lawyer who prepared a separation agreement. The wife did not have a lawyer. The trial judge approved the separation agreement. Later the wife came to me to challenge the fairness of the separation agreement. The judge ruled in the husband's favor. On appeal the South Carolina Court of Appeals ruled in the husband's favor. Although the husband was an apparent winner, he incurred a lot of legal expenses that would have been unnecessary if the separation agreement had been originally handled so that it would not have been open to challenge.

In a similar situation the husband had a lawyer and the wife did not. The husband's lawyer prepared a separation agreement that both parties signed, but the husband's lawyer did not have it approved by the family court. Over a year later the wife became dissatisfied and sued seeking far more relief than she received in the separation agreement. The judge properly refused to approve the separation agreement. The husband's lawyer did a poor job of representing the husband at trial. The wife prevailed on all of the financial issues to the detriment of the husband. The husband discharged his lawyer and came to me to appeal. The South Carolina Court of Appeals sustained the judgment of the family court.