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 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.
In South Carolina, Can I Evict My Spouse?
In South Carolina, you can’t legally evict your spouse from your home without a family court order even if you are the only person on the deed to the home. Also, the fact that you are the only person on the deed does not mean that the property is not marital.
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 family court order directing your spouse to vacate your home, your spouse can lawfully break a window or a door to get into the home. In fact, we’ve had cases where a spouse who has been locked out calls law enforcement, and law enforcement will tell the spouse they can break into the home. Also, we’ve had cases where law enforcement will show up at the home and insist that the other spouse unlock the home and allow the spouse in. Second, if you lock your spouse out of your home, then the family court may take a very negative view of what you have done to your spouse. 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 will need a family court order to get your spouse out of your home. When you seek a divorce on fault grounds such as physical abuse 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 cause 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 living arrangements of the parties and the children during the pendency of the litigation should be decided at the temporary hearing.
Essentially, there are two ways to convince a family court judge to order your spouse out of your home – (1) show domestic abuse or (2) file for a divorce on fault grounds (other than desertion).
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 give an abused spouse temporary control over the shared home. Our laws mandate that hearings concerning domestic abuse must be scheduled within fifteen days from the time you file a formal petition to the family court or within 24 hours if there is an emergency. Abuse includes not only an assault but also the threat of physical harm. In other words, if you have been threatened, you do not have to prove that you suffered any physical injuries. In addition to ordering a spouse of the marital home, the court can also include temporary provisions for spousal and child support, as well as custody and visitation rights.
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 has the authority to order a spouse out of the home if you file for a divorce on the grounds of adultery, physical cruelty, or habitual drunkenness or drug us, even if the parties have not separated. In our experience, simply alleging in a lawsuit that your spouse is having an affair, has been physically cruel to you, or is a drunk or addict 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. So, to convince a judge that your spouse must be ordered out of the house, you will need to have a temporary hearing at which time you will need to present “prima facie” evidence of your spouse’s fault. The term “prima facie” is Latin for “at first look” or “on its face.” If a party presents prima facie evidence of a fact, then they have provided enough evidence for the fact to be accepted as true unless the opposing party presents evidence to disprove it. This is not to say that you have to prove your entire case during a temporary hearing. However, you do have to provide evidence, not just allegations, that fault has occurred. For example, if you provide a report from a private investigator that your spouse is cheating, that report would be prima facie evidence of adultery, and the court may order your spouse to leave your home. As another example, if you provide detailed affidavits from third persons describing how your spouse is a habitual drunk, the court may consider those affidavits prima facie evidence of habitual drunkenness and order your spouse to vacate your home.
Get Help from Our Charleston Divorce Lawyers
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 these actions, and they can lead to negative consequences in family court. Seeking to remove a spouse through proper legal channels requires presenting substantial evidence of fault, such as domestic abuse, adultery, physical cruelty, or habitual drunkenness, and obtaining a family court order. By understanding these legal mechanisms and engaging the guidance of experienced family law professionals, parties can approach this challenging situation with informed strategies and greater confidence in their legal standing. If you find yourself facing these issues, contact us today to schedule your consultation.