In every divorce, there comes 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 the law in South Carolina, explain different options, and answer some frequently asked questions about the logistics of making a separation happen. We hope this information helps you make a more informed decision about whether and when to move out. If you have questions about whether you can kick your spouse out of your home, please click here to read our article on this subject.
Voluntary Separations in South Carolina
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. They may compare the mortgage/rent payment of the marital home vs. the rent payment of the new home, their incomes and expenses, and whether each spouse will pay for the place where he or she is living or whether there will be contributions towards each other’s living and child expenses.
- 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 is constantly asking the other to contribute money. One spouse may move out without any notice to the other. These cases must be filed quickly to put a Temporary Order in place and lay the ground rules. If we can’t agree on the ground rules, in non-emergency situations, we can usually have a hearing in 30-45 days. While we await the hearing, we are mindful that you are in limbo, but experienced divorce lawyers on both sides can often devise intelligent ways to navigate this period.
The issues that need immediate attention are the kids’ schedules, the mortgage/rent payment, and keeping the health, life, and auto insurance in place. But there are a number of other things that will need to be taken care of.
Involuntary Separations in South Carolina
The Family Court can only take “jurisdiction” to issue orders and help the situation if either:
- The husband and wife have already separated, or
- One of the spouses has evidence of a fault-based ground for divorce. This includes evidence that the other spouse (1) has committed adultery, (2) has physically abused him or her, or (3) is habitually intoxicated by alcohol or drugs.
Many people come to us claiming that there is fault because of the “verbal abuse” by their spouse. Please know that “verbal abuse” is not a fault-based ground recognized in South Carolina. You may have heard the term “irreconcilable differences,” but this is a term used by a few other states. In South Carolina, if there’s no fault ground as described above, the court only cares that you are separated, not the reason for the separation.
If you have proof of a fault-based ground, you can file for separation, ask for a temporary hearing, and request the judge at the hearing order your spouse to leave the marital residence. This may or may not go in your favor, depending on the facts of your case.
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. As some say, life is short.
Now that we’ve given some background on different scenarios, we’ll give the short answer:
- If you have evidence of a fault-based ground for divorce, you can file a family court case and let a judge decide who must move out at a temporary hearing.
- If you don’t have evidence of a fault-based ground for divorce, then one of you has to move out:
- You can ask him or her to move out.
- You can move out yourself.
- If neither of you wants to move, you play the chicken game mentioned above. If both of you can at least tolerate the current situation, this could go on for a long time.
- Retain a lawyer to start negotiating a temporary or permanent plan. Sometimes, there are creative solutions that may help you form a roadmap. Some trade-offs or concessions may help get you and your husband or wife over this hump.
Bottom line: Someone must move out before the court will hear your case, even if it is uncontested, to approve an agreement. You never have to leave the house simply because your husband or wife wants a divorce. You only have to move out by agreement or if a family court judge at a temporary hearing orders you to leave.
Can I Stay in a Separate Room?
No. The law is clear that you must have separate residences. Even if you have a detached “mother-in-law” suite on the same property and move into it, you may not 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 will provide more care should stay in the home so the kids don’t have to move until we 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 to one spouse moving 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. While there is no law on this in South Carolina, we believe that a judge would consider a bird nesting arrangement to be a “separation” so long as there is no overlap between the parents staying under the same roof at the same time. We could be wrong, but why penalize parents for making this sacrifice for their children?
How Can I Afford to Live on My Own During My Divorce?
When they separate, people suddenly have two sets of rent/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. You may agree to share these costs even though you live separately. There will be other increases in spending that you don’t even realize. Work together to save money as you get through this tremendous life change.
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 is usually only done by agreement. In most cases, judges do not think forcing a home sale early 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 much of a contested custody case this will be. If you want to fight for custody but need to move out because your spouse won’t, we can review your case’s facts 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/immediate expense allocation
- Temporary/immediate possession and use of certain assets or real estate
- Final division of assets and property
- Any else that needs attention
You will need to be separated before we file a case with the court to approve the settlement agreement, but in the meantime, we’ll have a plan in place so your uncertainty is minimized.
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 he or she is doing it. The parents need to know that the kids are going through a lot, even if they don’t say it. Also, it is common for kids to think the separation is their fault.
All adult discussions should happen outside of the children’s earshot. If a scheduling plan is to be made or changed, please discuss this between you and your spouse and present the decision to the children as a united front. Assure them that the separation is not their fault. Don’t make them feel guilty for feeling a certain way or making a particular decision. If one of you is dating (aka adultery), never expose the children to the new partner at this stage. Be mindful of how your kids may perceive your words and actions.
What is My Next Step?
Call the attorneys at Futeral & Nelson and schedule a consultation. We will interview you about your situation, educate you on the law and procedure, and develop the best plan to protect you and your family.