## Facts

- Wife and Husband married in 1980; Wife was primarily a homemaker and Husband received compensation and dividends from a family business.
- The parties owned a marital home titled in Wife’s name and two rental properties titled in Husband’s name.
- Wife previously filed for divorce twice; at least one filing alleged physical cruelty. The parties reconciled after the first filing, and the second was dismissed for failure to conclude within one year.
- Wife filed a family court action seeking separate maintenance and support while the parties continued living in the same residence, sleeping in separate rooms.
- Wife alleged Husband’s conduct made it unreasonable to remain with him, including unilateral control or disposal of marital assets and creation and nonpayment of debts in her name.
- Husband moved to dismiss for lack of subject matter jurisdiction and failure to state a claim, contending the parties were not “living separate and apart,” and also sought cancellation of Wife’s lis pendens on his rental properties.
- The family court dismissed Wife’s separate maintenance action because the parties were still living together, cancelled the lis pendens, and denied Wife attorney’s fees.
- Wife appealed; the South Carolina Supreme Court granted certiorari.

## Issues

1. Whether a spouse may maintain an action for separate maintenance and support when the spouses still live together in the same residence at the time of filing.
2. Whether dismissal of the separate maintenance action required cancellation of a lis pendens filed on the other spouse’s real property.
3. Whether the family court properly denied attorney’s fees sought in conjunction with the separate maintenance action.

## Decision

- The Supreme Court of South Carolina affirmed dismissal of Wife’s action for separate maintenance and support.
- The court held separate maintenance and support cannot be maintained unless the spouses are living separate and apart at the time the action is filed; living under the same roof in separate rooms is insufficient.
- The court affirmed cancellation of the lis pendens because it depended on a valid underlying action.
- The court affirmed denial of Wife’s attorney’s fees because the fee request was tied to the dismissed action.

## Legal Principles

- Separate maintenance and support in South Carolina requires that spouses be living separate and apart when the action is commenced.
- Cohabitation in the same residence, even with serious marital conflict and separate sleeping arrangements, does not satisfy the “separate and apart” requirement.
- A family court may have subject matter jurisdiction over domestic relations matters but still lack authority to grant separate maintenance absent the required predicate facts.
- Ancillary remedies dependent on the viability of the underlying claim (including lis pendens and attorney’s fees sought in that action) fail when the underlying claim fails as a matter of law.

## Conclusion

South Carolina requires actual separation as a prerequisite to separate maintenance and support; because the spouses were still living together and Wife did not allege they were living separate and apart, dismissal was proper and the related lis pendens and attorney’s fee request were correctly denied.


Theisen v. Theisen, 716 S.E.2d 271 (S.C. 2011)