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Do You Have to Leave the House When You File for Divorce?

Do You Have to Leave the House When You File for Divorce?
Axelrod & Associates, P.A.

If you file for divorce, do you have to leave the house? Does your spouse need to leave the house?

Odds are, one of you will need to find somewhere else to live, but what are the rules? If your spouse refuses to go, can the court make them leave?

Below, we will answer these questions and more, including:

  • Whether you must leave the house when you file for divorce in SC,
  • Whether you must leave the house when you are separated from your spouse in SC,
  • What “one-year continuous separation” means for purposes of no-fault divorce, and
  • When one spouse can force the other to leave the family home.

Do You Have to Leave the House When You File for Divorce in SC?

You may not have to leave the house when you file for divorce in SC, but someone probably does.

There are exceptions, but you don’t want to risk waiting a year or more to finalize your divorce and then having the family court tell you no because you haven’t been “separated” in the court’s view, or because the court finds that you “condoned” physical abuse or adultery and reconciled with your spouse.

One-Year Continuous Separation – No-Fault Divorce

What if we are sleeping in separate bedrooms? Or, what if I am staying in the in-law suite in the basement?

If you want to get a no-fault divorce based on one year’s continuous separation under SC Code § 20-3-10(5), you must “have lived separate and apart without cohabitation for a period of one year.”

If you are living at the same address as your spouse, even if you are sleeping in another bedroom or a different section of the property, the family court will most likely consider that “cohabitation.”

To qualify for a no-fault divorce, you must be living separately, you cannot cohabit with your spouse, and it must be continuous for a period of more than one year. In most cases, you or your spouse must relocate to another physical address to satisfy these conditions.

Fault-Based Divorce and Condonation/ Reconciliation

If you are filing for divorce based on one of the fault grounds (adultery, desertion, physical cruelty, or habitual drunkenness), you or your spouse will need to leave the house as well.

Although you will not need to prove one year’s continuous separation if you prove one of the other four grounds for divorce, the family court will not grant a divorce on a fault-based ground if you have condoned your spouse’s actions and reconciled with them.

Condonation is a defense to adultery, desertion, physical cruelty, or habitual drunkenness as grounds for divorce in SC.

If a couple engages in “marital relations” and the complaining spouse knew about the grounds for divorce, the spouse has condoned the other party’s actions.

If a couple cohabits, there is a presumption that they have engaged in marital relations (and, therefore, the complaining party has condoned the other spouse’s action).

In some cases, however, there may be a question as to whether a couple has engaged in marital relations despite living at the same address.

For example, in Wilson v. Wilson, the SC Supreme Court reversed the lower court’s holding that the wife’s divorce was barred by condonation because she cohabited with the husband, finding that the lower court should have permitted her to testify as to lack of sexual access.

Nonaccess may overcome the presumption of marital cohabitation, although a spouse’s testimony alone may be insufficient without corroboration (see, Buero v. Buero, 246 S.C. 355, 143 S.E.2d 719 (1965).

Do You Have to Leave the House If You Are Separated in SC?

What if you are just getting separated? Do you or your spouse need to leave the house?

If there is any chance that you will want your separation period to count towards your one-year separation, then yes, someone will need to leave the home and live somewhere else.

Obviously, you can choose to “separate” from your spouse while living in the family home, perhaps sleeping in a separate bedroom. It may be that is the right choice for you at the time, but it most likely will not count toward a one-year separation if you decide to file for divorce.

Can Your Spouse Kick You Out of Your Home When They File for Divorce?

If you are separating from your spouse, you feel that you should remain in the family home, and your spouse disagrees, you might need the court to resolve the issue for you.

Once you have filed an action for divorce or an action for separate support and maintenance, you can request a temporary hearing in the family court where a judge can resolve pressing issues like:

  • Who lives in the family home,
  • Child custody and visitation,
  • Child support and alimony,
  • Restraining orders, and
  • Family attorney fees and costs.

If the family court judge finds that it is fair for you to remain in the home, perhaps because you will have primary custody of your three children, the court can order your spouse to leave the home if necessary.

Similarly, if the court finds that it is fair for your spouse to remain in the family home, the court can order you to leave the home if necessary.

Got Axelrod?

If you are considering separation or divorce from your spouse, talk to your Myrtle Beach divorce attorney on the Axelrod team as soon as possible. We can help you to protect your financial interests, your home, and your children with a separation agreement or by requesting a temporary hearing with the family court.

Call now at 843-258-4582 or get in touch through our website to talk with a SC divorce attorney today.

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