In what is, for me, one of the most highly anticipated decisions on this year’s docket, the South Carolina Supreme Court decided on September 19, 2011 in the case of Theisen v. Theisen, 394 S.C. 434, 716 S.E.2d 271 (2011) that physical separation is a required component for bringing a separate maintenance action. For almost a decade, I had assumed that to be the case but since the legislature never clarified the issue, the Supreme Court was certainly entitled to do so. Meanwhile attorneys I greatly respect, such as Professor Roy Stuckey, have argued that a requirement of separation before filing a separate maintenance action was both bad law and bad policy.
The Theisen case involved a couple with a contentious marital history. Wife had filed for divorce twice previously: the first case being dismissed when the parties reconciled; the second being administratively dismissed under the 365 day rule. With the parties still living together, “albeit sleeping in different rooms,” Wife filed a separate maintenance action in which she “complained of Husband’s unilateral control and disposal of marital assets, creation and non-payment of debts in Wife’s name, and present emotional and verbal abuse.” Husband moved to dismiss Wife’s action because they were still living together and the family court granted Husband’s motion. Wife appealed.
The Supreme Court first noted that the family court had the authority to hear separate maintenance actions, making dismissal pursuant to Rule 12(b)(1), SCRCP [lack of subject matter jurisdiction] inappropriate. However, a slim majority of the Supreme Court decided that physical separation was a necessary component of filing a separate maintenance action and that, therefore, dismissal pursuant to Rule 12(b)(6), SCRCP [failure to state a claim for which relief can be granted] was appropriate.
In holding that physical separation was required before filing the majority provided the following analysis:
[I]n order to state a claim for separate maintenance, the complaint must allege that the parties are living separate and apart. To hold otherwise would permit spouses to inundate the family court with claims following relatively minor disputes and quarrels. Because there are no defined grounds for this relief, parties could bring an action in the family court for almost any reason absent some threshold requirement. Requiring spouses to separate stems this tide by helping guarantee that court intervention into the marital relationship actually is truly necessary because the grounds underlying the complaint will at least be enough to warrant leaving the marital home.
Furthermore, living separate and apart must involve more than the cessation of the parties’ romantic relationship. The overwhelming weight of authority as to what is meant by living “separate and apart” implies something more than a discontinuance of sexual relations. It implies the living apart in such a manner that those in the neighborhood may see that the husband and wife are not living together….
It is beyond question that the public policy of this State favors the institution of marriage, and it is our belief that acrimonious litigation does far less to preserve the marital bond than the requirements we impose today. Thus our concern goes beyond the fact that parties may institute litigation and then withdraw should they reconcile; it extends to the relative ease with which parties might otherwise bring their minor disputes into the spotlight of the family court, thereby working irreparable damage to the family unit. The potential for unnecessary litigation will work more harm to a marriage than the requirement that a spouse’s discontent with the marriage ordinarily must be sufficient for him or her to leave the marital home prior to receiving separate maintenance.
Living separate and apart therefore is a prerequisite to petitioning for an award of separate maintenance.
The majority opinion, in dicta, analyzed past case law which indicated that more than mere separation might be required for the court to order separate maintenance:
Under South Carolina law, a spouse does not need grounds that would merit a divorce in order to receive separate maintenance. We have thus refused to define any specific grounds and instead have left this decision to the discretion of the family court. However, we have often searched for whether there was justification—whatever that justification may be—for the supported spouse to leave the marital home.
Can one argue that a separated spouse isn’t entitled to separate maintenance because he or she failed to provide sufficient “justification” to leave the marital home? That may be an issue the Supreme Court ultimately has to decide.
One intriguing factor in this opinion is the gender breakdown in the Supreme Court’s votes. There are a few cases in which I think one’s gender greatly influences how one might analyze a fact pattern but this is one of those cases (Roe v. Reeves, 392 S.C. 143, 708 S.E.2d 778 (2011), in which the Supreme Court was asked to determine the amount of commitment an unwed father needed to devote to his not-yet-born offspring to develop parental rights, was another such situation). I would have assumed that the female justices would have been more sympathetic to Wife’s position as, in my experience, it is typically wives who have brought separate maintenance actions before separating and who suffer through unhappy marriages rather than taking the risk of separating. Yet both female justices were in the majority and two of the three male justices were in the dissent. I wonder whether Justices Toal and Hearn saw more clearly than the male justices the dangers to family stability in allowing unhappy wives to seek separate maintenance without having to go through the effort of first separating.