Often, someone wants to file for divorce while they’re still living with their spouse. They’d like to move out, but they don’t have place to go or can’t afford a separate place of their own.
In South Carolina, you must live apart from your spouse before filing for divorce in most cases. If you want a no-fault divorce, you must live apart from your spouse for a year before you get divorced. Unfortunately, that means that at least one spouse needs to move out before filing.
Can I file for divorce before I move out?
There is an exception to the rule that you must separate before filing. If you file for a fault divorce based on any of the following grounds:
Physical cruelty, or
Habitual alcohol or drug use
You may file for divorce before separating from your spouse. And, your divorce can be final without having to live apart for one year.
Will I lose the house if I move out first?
Not always. Judges understand that sometimes, one spouse must leave the home. This may be because of abuse, cruelty, or other circumstances, which South Carolina doesn’t recognize as fault grounds. Oftentimes, one spouse has been financially dependent on the other during the marriage. In this case, the leaving spouse may not have money to rent another place to live.
Judges look at many different factors when dividing property, including a home. For example, one spouse may not be able to afford to rent an apartment or refinance the house. The other spouse may be able to rent another apartment with ease. The judge will take this into account when deciding who gets the house.
Judges also don’t like to uproot children from their homes. If you are the primary caretaker of the children, the judge may give you the house at a temporary relief hearing. Temporary relief hearings happen shortly after you file for divorce. This means it’s possible that you may only be out of the house for a month or two.
Separate support and maintenance helps separate out finances and property. It can help you start your new life, and live on your own. You can also use separate support and maintenance to determine who gets the house. But, an order of separate support and maintenance won’t offer much relief. You must live apart from your spouse before filing for separate support and maintenance.
Can I “move out” into another bedroom in the house?
No. South Carolina law requires physical separation. This means two different addresses. You must live separate and apart from your spouse for one year to get a no-fault divorce. This one-year clock restarts if you move back in with your spouse again. This may also be true if you spend the night with each other after filing.
If you have children, separating before filing is an uncomfortable choice. It leaves you with three options:
Leave the home, taking the children with you;
Leave the home, leaving the children with your spouse; or
There are a couple of options available if you need to move out to get a divorce.
First, you can try to work out an agreement with your spouse on who will move out. Sometimes, spouses can decide who will move out, or if one spouse will help the other rent a separate home. The judge will then approve your agreement. Your agreement will become a court order, giving your arrangement legal protection.
You can also find a temporary place to live. Look into short-term leases. The judge doesn’t care where you live most of the time. The judge cares only about physical separation. Once you move out, you can file for divorce or separate support and maintenance. You can then ask the judge for the marital home at a temporary hearing. This can happen weeks after filing for divorce
If you have children, you should move to a place that is safe for kids. In the event you don’t get (or don’t want) the house, the judge will want your new home to be safe for kids. This may improve your chances of getting primary custody at a temporary hearing.
At a temporary hearing, you can also ask for alimony to maintain your home after you or your spouse move out. You can also ask for exclusive use of property, like a car, lawn mower, etc.
Every person’s case is unique and requires an individual litigation plan. The attorneys at the Maron Law Group want to help. We understand the legal and emotional challenges faced by a spouse who can’t move out of the marital home. We take your finances, safety, and welfare into account when helping you begin your new life.
Don’t let moving out prevent you from moving on. Contact us today for a free consultation.