Should separation be required for a separate maintenance action?

In April 2011, the South Carolina Supreme Court heard oral argument in the case of Eileen Frances Theresa Busto Theisen v. Clifford Richard Theisen. According to the Supreme Court’s roster of cases, the issue in this appeal is “whether physical separation is a pre-requisite for a party to receive separate maintenance and support.” Since Supreme Court review is discretionary, I assume the Supreme Court intends to consider whether the Court of Appeals decision of Ariail v. Ariail, 295 S.C. 486, 369 S.E.2d 146 (Ct.App. 1988), which held that physical separation is required before a spouse can file for separate maintenance, remains good law.

For me a decision in Theisen is eagerly anticipated. A Supreme Court opinion overruling Ariailwould be a revolution in South Carolina family law. In Pennsylvania, where I practiced for one year before moving to South Carolina, a spouse could move into a separate bedroom and then file for separate maintenance. In South Carolina spouses must actually be in separate residences to file for separate maintenance.

Attorneys I highly respect, such as Professor Roy T. Stuckey and Thomas F. McDow, believe South Carolina’s current policy is misguided. They would contend that forcing a spouse to leave the marital home to begin family court proceedings when that party believes the marriage is irretrievable broken forces spouses to remain in psychologically destructive marriages.

While I understand and am sympathetic to this concern, I believe a change in policy would be a disaster. Combining no fault divorce with no fault alimony has created an extreme imbalance of power in many marriages, with the primary homemaker spouse having the power to unilaterally end the marriage while demanding support from the primary wage-earner spouse–and often greatly disrupting the wage-earner’s relationship with the parties’ children. In South Carolina, where a bi-polar approach to alimony [extremely generous and typically permanent when the supported spouse hasn’t committed adultery; barred when the supported spouse has], this imbalance of power is even greater. I wish social scientists would actually research the effect that the combination of no-fault divorce and no-fault alimony, which began in the 1970’s, had on the decline in marriage rates and the increase in out-of-wedlock births.

South Carolina already allows an unhappy spouse to file for fault divorce without leaving the marital home. Watson v. Watson, 319 S.C. 92, 460 S.E.2d 394 (1995). Right now an unhappy spouse who wants to end his or her marriage without having fault grounds for divorce has to undergo the hassle and risk of actually leaving the marital home. This makes many spouses think twice about leaving, leads some such spouses to work on their marriage rather than leave, and forces the unhappy spouse to attempt settlement negotiations to end the marriage rather than seeking judicial intervention (which has the effect of giving the other spouse some leverage).

At its core this is a policy choice our legislature should be making. Ariailis 23 years old and our legislature should have used this time to decide whether spouses should be able to dissolve their marriages without actually separating or proving fault. However, on this issue, as on so many important areas of family law, the South Carolina legislature is simply too cowardly or detached to make and defend decisions on important issues regarding the preservation and dissolution of families. Thus, our appellate courts are increasingly asked to make these policy choices.

In the context of traditional wage-earner/homemaker marriages, obligations that were reciprocal during the marriage become very one sided post-separation: the supporting spouse typically is required to provide the supported spouse a significant portion of his or her income; all the supported spouse is typically required to do is make the parties’ children available for visitation. Allowing unhappy supported spouses to file separate maintenance actions–and demand the other spouse pay support and move out of his or her home and away from their children–without first requiring that spouse to prove fault or vacate the marital home gives way too much negotiating leverage to unhappy supported spouses. Such policy would make marriage a sucker’s bet for any supporting spouse who didn’t demand a prenuptial agreement prior to wedlock. When an opinion in Theisen is issued, we’ll see if the Supreme Court agrees.