You’ve made the difficult decision to divorce. You can’t stand your spouse anymore and want to get some space for yourself.
But how do you decide who should move out of the family home? Should you volunteer to move out? Can one spouse force the other out?
It’s important to understand the ramifications of leaving the family home and what the best process for handling this decision is. Making the wrong move can be disastrous for your divorce settlement.
Can One Spouse Force the Other to Move Out?
Without a court order, neither spouse can force the other to leave the marital home in South Carolina. The police can’t make either party move unless there’s domestic violence involved. So, unless there’s abuse, both have the right to stay put until a legal agreement or court order says otherwise. This means the decision needs to be mutual or decided by the court.
Should We Just Live in The Same House Until Our Divorce is Finalized?
In South Carolina, you and your spouse must live in separate residences for at least one year if you are pursuing a “no-fault divorce”.
A “no-fault divorce” is the most common type of divorce. An “at-fault” divorce can only be obtained if adultery, habitual drunkenness, physical abuse, or desertion have happened.
This means that one spouse will need to move to a different residence if you want to satisfy the requirements for a no-fault divorce.
What Are the Impacts of Moving Out First?
Volunteering to move out might seem like a quick fix, but it can have lasting consequences. Family law judges sometimes perceive voluntary leaving as abandoning your children, home, and personal property. This perception could hurt your case in terms of child custody and division of assets. It’s crucial to weigh these impacts carefully. Here’s a table comparing potential consequences of moving out first versus staying:
| Consideration | Moving Out First | Staying |
|---|---|---|
| Child Custody | Risk of being seen as abandoning children | More likely to be perceived as committed |
| Property Division | Possible loss of claim on the home | Better position to claim assets |
| Personal Property | Potential loss of items left behind | Retain control over possessions |
Temporary Orders Are Crucial for Living Apart
If you must live apart for a year, but volunteering to leave can hurt your settlement, how can you and your spouse move forward with divorce?
The answer is to get temporary orders for child custody, child support, alimony, attorney’s fees, and possession of the house.
Having these temporary agreements in place can provide clarity and security for both parties and the children. A parenting plan outlines the custody and visitation arrangements, ensuring that both parents continue to have meaningful relationships with their children. A financial settlement addresses some aspects of the division of assets and liabilities, providing a clear framework for financial responsibilities for living expenses moving forward – while the divorce is finalized.
These agreements can also dictate who stays in the home and who leaves, providing a clear path forward without the risk of negative consequences.
These orders can be put in place by a Family Court judge shortly after a divorce complaint is filed. Your Charleston divorce mediator can help you arrange these temporary orders so that both spouses are safeguarded and maintain their rights during the process.
Weighing the Decision
So, should you move out during a divorce? Consider these questions:
- Can you and your spouse create a temporary living arrangement until orders are set?
- Is there a risk of domestic violence that necessitates immediate separation?
- Will temporary orders soon be in place to protect your interests?
Moving out without a plan can lead to complications. Be sure you understand the potential consequences and work to make informed decisions that protect your interests and your family’s well-being.
A Divorce Mediation Lawyer Can Help You Divorce Amicably
Determining who should move out during a divorce can be a complex and emotional decision. Our Charleston divorce mediation team can help you and your spouse negotiate temporary and permanent agreement that works for both of you.
Getting divorced without conflict or courtrooms is possible. Contact our office today @ 843-323-4687 to find out if mediation is the right choice for you. We’re ready to listen and help.
About Catherine Marra
Catherine Marra is a nationally certified Divorce Mediator with over 30 years of experience in Family Law, including 20 years in private practice and 10 years as a Family Court Magistrate. She uses her knowledge and experience to guide couples in negotiating divorce settlements so they can save money, complete the divorce process quicker, and get better outcomes than they would at trial.