Should I Move Out Before My Divorce in South Carolina?

Every divorce involves a time of separation. The separation is much easier in some cases than in others. In this article, our Charleston divorce lawyers walk you through South Carolina law, explain your options, and answer frequently asked questions about the logistics of separating.

We hope this information helps you make a more informed decision about whether and when to move out. So should I move out before my divorce in South Carolina?

Quick Answer: You do not have to move out simply because your spouse wants a divorce. You may agree on who will leave, or a family court judge may decide who stays in the home in certain cases. For a no-fault divorce, you must live in separate residences without cohabitation for one year, and separate bedrooms under the same roof do not count. A separate maintenance action also requires that you already live apart.

What Are Your Options for Separating Before a Divorce?

The most straightforward separations are when one spouse or parent voluntarily moves out. Some examples:

• The Planned Separation: In some (usually more amicable) cases, the husband and wife discuss their finances, the plan for the kids, and the logistics of everything else before separating. They may have a formal schedule for who gets the children and when, including overnights and school transportation.
• The Less Planned Separation: The parties discuss the separation, but communication breaks down before one spouse decides he or she cannot live in the same home anymore. They at least have an idea of how things might happen.
• The Fully Contested Case: The spouses have agreements on very little. They can’t agree on who gets the kids when and sometimes even bring the kids into it. One spouse may move out without any notice to the other. In these cases, filing promptly may be necessary to request a Temporary Order that lays the ground rules.

In a planned separation, the spouses may also compare the mortgage or rent payment on the marital home with the rent on the new home, their incomes and expenses, and whether each spouse will contribute toward the other’s living and child expenses.

In a fully contested case, if we can’t agree on the ground rules, the timing of a temporary hearing depends on the court’s schedule and the case’s circumstances. While we wait for the hearing, experienced divorce lawyers on both sides can often devise smart ways to navigate this period. Issues that need immediate attention include the kids’ schedules, the mortgage or rent payment, and keeping health, life, and auto insurance in place.

The following table summarizes the most common options and what to consider with each one:

Can You Make Your Spouse Move Out in South Carolina?

Generally, you cannot make your spouse leave the marital home merely by asking. In an appropriate family court case, you can ask the judge to order who may stay in the home. If you seek a divorce on a fault-based ground other than desertion, such as adultery, physical cruelty, or habitual drunkenness, you do not have to move out before filing. The judge can address living arrangements at a temporary hearing. Depending on the circumstances, an order of protection may also address who must stay away from the home.

If you have proof of a fault-based ground, you can file for divorce, request a temporary hearing, and ask the judge to order your spouse to leave the marital residence. This may or may not go in your favor, depending on the facts of your case. Our article on whether you can evict your spouse in South Carolina explains this process in more detail.

Many people come to us claiming that there is fault because of “verbal abuse” by their spouse. Please know that “verbal abuse” alone is not a fault-based ground for divorce recognized in South Carolina. You may have heard the term “irreconcilable differences,” but other states use it. In South Carolina, a no-fault divorce requires one year of living separate and apart without cohabitation, regardless of why the spouses separated.

Should I Move Out Before My Divorce in South Carolina?

Sometimes, neither party will move out. If there’s no fault ground and neither party will move, then we have what many would call “a game of chicken.” Both think there is some disadvantage to moving out (legally or practically), so they wait until the other moves out. In a few cases, we have seen this go on for over a year, so if you try the waiting game, know that there is a tremendous risk that you are simply wasting time.

Now that we’ve given some background on different scenarios, here is the short answer:

• If you have evidence of a fault-based ground for divorce other than desertion, you can file a family court case without first moving out and ask a judge to decide the living arrangements at a temporary hearing.
• If you don’t have evidence of a fault-based ground for divorce, then you and your spouse must live in separate residences for one year without cohabitation to obtain a no-fault divorce. You can ask your spouse to move out, move out yourself, wait each other out, or retain a lawyer to negotiate a temporary or permanent plan. Sometimes, creative trade-offs or concessions can help get you over this hump.

Bottom line: someone must establish a separate residence to start the one-year period for a no-fault divorce, but not every agreement requires a spouse to move out before the court can approve it. You do not have to leave the house simply because your husband or wife wants a divorce. You may leave by agreement, or a court may order one spouse to leave when the law and facts permit.

Can I Stay in a Separate Room?

No, not if you are trying to establish the one-year separation required for a no-fault divorce. The law requires that you live separate and apart, which means separate residences. Even if you have a detached “mother-in-law” suite on the same property and move into it, whether that arrangement qualifies as a separate residence depends on the facts; do not assume it will satisfy the judge that you are separated.

Who Should Stay in the Home?

Generally, in cases with children, unless you agree to a 50/50 custody schedule, the person who provides more care should stay in the home so the kids don’t have to move until you develop a more permanent plan. They already have enough to adjust to right now. Aside from the child consideration, it can go either way. Countless factors could lead one spouse to move out over the other.

In cases with kids, we have occasionally seen bird’s nest custody arrangements where the parents alternate who stays at home so the kids never go back and forth. Whether that arrangement satisfies the separate residence requirement for a no-fault divorce depends on the parents’ actual living arrangements. Avoid overlap under the same roof, and don’t assume that alternating time in the marital home alone establishes separate residences.

How Can I Afford to Live on My Own During My Divorce?

When they separate, people suddenly have two sets of rent or mortgage payments and utilities. For most families, this is extremely difficult financially. We recommend keeping as much together as possible unless you can both afford it. This includes staying on the same phone plans, health insurance plans, car insurance, music streaming accounts, you name it, if the plan terms and eligibility rules allow. You may agree to share these costs even though you live separately.

Sometimes, people come to us thinking they can force the sale of the home and use their share of the proceeds to begin their new life more comfortably. A quick home sale usually happens only by agreement. In most cases, judges do not think forcing an early home sale is appropriate.

Do I Lose “Leverage” If I Move Out First?

When there are no kids, the answer is usually “no.” If you have kids, it depends on how contested the custody case will be. If you want to fight for custody but need to move out because your spouse won’t, we can review the facts of your case during an attorney-client consultation and help you construct your game plan.

Do I Have to Move Out Before Settling My Divorce?

No. In our more amicable cases, we’ll negotiate an agreement for a client still living at home with the other spouse. We can settle all or some issues, including:

• Primary custody
• Parenting schedule
• Child support
• Alimony (if applicable)
• Temporary or immediate expense allocation
• Temporary or immediate possession and use of certain assets or real estate
• Final division of assets and property
• Anything else that needs attention

If you are seeking a no-fault divorce, you and your spouse must live in separate residences without cohabitation for one year before the court can grant the divorce. Separate maintenance and support also require separation before you file the action.

But you don’t necessarily have to separate before negotiating or signing an agreement, and whether you must separate before asking the court to approve one depends on the type of action and relief requested. When a case can’t reach a final settlement this early, an experienced family court lawyer may be able to negotiate a temporary arrangement that works for everyone.

What About My Children?

Please leave your children out of it. We have seen parents use kids as leverage or try to turn them against the other parent. Sometimes this is purposeful, but sometimes the parent doesn’t realize they’re doing it. Kids are going through a lot, even if they don’t say it, and it is common for them to think the separation is their fault.

All adult discussions should happen outside of the children’s earshot. If you need to make or change a schedule, discuss it with your spouse and present the decision to the children as a united front. Assure them that the separation is not their fault. If one of you is dating, consider carefully whether and when to introduce the children to a new partner, and remember that sexual relations with someone else before the divorce is final can raise adultery issues.

How Can a Charleston Divorce Lawyer Help With Your Separation?

Call the attorneys at Futeral & Nelson and schedule a consultation. We will interview you about your situation, explain the law and procedure, and develop the best plan to protect you and your family.

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