Can You Evict Your Spouse in South Carolina?

As divorce lawyers in Charleston, South Carolina, we frequently deal with clients whose spouses refuse to leave the home even though the marriage is failing. In this article, we will explain whether you can evict your spouse or have a legal right to kick your spouse out of the house, whether you can change the locks on your home, and the legal grounds and the process for getting a spouse out of your home. So can you legally make your spouse leave the house in South Carolina, and if so, how?

Quick Answer: In South Carolina, you generally cannot force your spouse out of a shared home or lock your spouse out without a court order, even if the house is titled only in your name. Unless your spouse agrees to leave, you can seek an order of protection if you establish domestic abuse, or seek temporary exclusive possession of the home in a divorce action based on a fault ground other than desertion.

In South Carolina, Can I Evict My Spouse?

In South Carolina, you generally can’t force your spouse out of a shared home without a court order, even if you are the only person on the deed. Also, being the only person on the deed doesn’t mean the property isn’t marital. For more information, read our article on marital vs. non-marital property in South Carolina.

In South Carolina, Can I Lock My Spouse Out of the House?

Although you can change the locks on your house to try to force a separation, this is not a good idea for two reasons. First, without a court order directing your spouse to vacate your home, changing the locks does not by itself end your spouse’s right to access a shared home. Do not assume, however, that your spouse can lawfully break a window or a door to get in; the circumstances matter, and forcing entry can create safety and legal problems.

Law enforcement may be unable to resolve a dispute over who may occupy the home without a court order. Second, if you lock your spouse out of your home, the family court may view what you did very negatively. As we often tell our clients, you don’t necessarily get rewarded in family court for doing the right thing, but you will definitely face negative consequences if you do the wrong thing!

How Can I Get My Spouse Out of My House in South Carolina?

In South Carolina, unless your spouse agrees to move out, you generally will need a court order to require your spouse to leave a shared home. When you seek a divorce on fault grounds such as physical cruelty or adultery, you do not need to be physically separated to file a lawsuit for the divorce. Our state supreme court has stated:

If we were to require physical separation of the parties in order to bring a divorce action, divorcing parents who seek custody of their children would have these choices: either vacate the home, taking the children with them and thereby causing additional disruption in the children’s lives; vacate the home and abandon the children to their spouse; or continue in the marriage.

We hold that public policy permits a party to remain in the home and institute divorce litigation premised on fault grounds other than desertion. In such cases, the parties’ and children’s living arrangements during the pendency of the litigation should be decided at the temporary hearing.

Two ways to ask a family court judge to order your spouse out of your home are (1) seek an order of protection based on domestic abuse or (2) request exclusive possession of the home in a divorce action based on a fault ground other than desertion. Your spouse may also agree to move out.

1) You Can Get Your Spouse Out of the House if You Prove Domestic Violence

The Protection from Domestic Abuse Act in South Carolina empowers the family court to order a spouse to stay away from the other spouse’s residence and, in specified circumstances, to give an abused spouse temporary possession of the shared home. If you do not request or receive an emergency hearing, you may request one, and the court must grant it within fifteen days of filing the petition, subject to the law’s service and continuance requirements.

If you make the required showing of immediate and present danger of bodily injury, the court may hold an emergency hearing within twenty-four hours after your spouse is served. Abuse includes not only physical harm or assault but also the threat of physical harm and certain sexual offenses. In other words, if you have been threatened with physical harm, you do not have to prove that you suffered any physical injuries.

In addition to restricting a spouse’s access to the home, the court can also include temporary provisions for spousal and child support, as well as custody and visitation rights. Whether the court can award temporary possession of the shared residence under the Act depends in part on the home’s ownership or lease and the respondent’s duty of support. For more information, read our article on how to get an order of protection in South Carolina.

2) You Can Get Your Spouse Out of the House if You File for a Divorce on Fault Grounds

In South Carolina, the family court can decide the spouses’ temporary living arrangements if you file for a divorce on the grounds of adultery, physical cruelty, or habitual drunkenness, including habitual drunkenness caused by narcotic drugs, even if the parties have not separated.

You may ask the court to grant you exclusive possession of the home, but filing on a fault ground does not automatically require your spouse to leave. In our experience, simply alleging in a lawsuit that your spouse is having an affair, has been physically cruel to you, or is habitually drunk will not be enough to convince a judge to order your spouse out of the house.

South Carolina’s public policy is to foster and protect marriages. To ask a judge to order your spouse out of the house during the divorce, request temporary relief and present evidence supporting your request at the temporary hearing. The court will consider the parties’ and any children’s living arrangements and the circumstances presented; it need not find that the alleged fault has been conclusively proved at that stage, and evidence of fault does not by itself guarantee exclusive possession.

For example, a private investigator’s report describing circumstances relevant to alleged adultery may help support your request, but its value depends on what the investigation actually establishes. As another example, detailed affidavits from third persons describing repeated intoxication may be relevant to alleged habitual drunkenness and the temporary living arrangements. The judge decides what weight to give the evidence and whether to order either spouse to leave.

Can the Police Remove My Spouse From the House in South Carolina?

Generally, no. Without a court order, law enforcement usually will not remove a spouse from a home that both spouses share merely because the other spouse asks. However, if your spouse commits a crime such as domestic violence, the police may arrest your spouse, and a bond condition or later court order may prevent your spouse from returning to the home. If you are in danger, call 911 and read our article on what to do if your spouse abuses you in South Carolina.

Should I Move Out of the House Before a Divorce in South Carolina?

Moving out can affect custody, use of the marital home, and your finances during the divorce, so make this decision carefully and, ideally, after speaking with a lawyer. If your spouse will not leave and you do not have grounds for a court order, one of you may need to move out to begin the one-year separation required for a no-fault divorce.

The spouses must live in separate residences during that period; living in separate rooms in the same home is not enough. For more information, read our article on whether you should move out before a divorce in South Carolina.

How Can a Charleston Divorce Lawyer Help Get Your Spouse Out of the House?

Navigating the complexities of marital disputes and the legal process of removing a spouse from a home in South Carolina requires a comprehensive understanding of the laws and careful consideration of the circumstances. While it may seem tempting to take unilateral action, such as changing the locks, the law does not necessarily support it, and it can lead to negative consequences in family court.

Removing a spouse through proper legal channels requires evidence supporting the requested relief and, unless the spouse agrees to leave, a court order. An order of protection requires proof of abuse under the applicable law; in a fault-based divorce, the family court can determine temporary living arrangements after considering the circumstances. By understanding these legal mechanisms and seeking guidance from experienced family law professionals, parties can approach this challenging situation with informed strategies and greater confidence in their legal standing.

The attorneys at Futeral & Nelson have represented spouses in divorce, separation, and order of protection cases in Charleston, Mount Pleasant, North Charleston, Summerville, and throughout the Lowcountry since 2003. Call us at 843-284-5500 to discuss your situation and your options.