South Carolina Lawyer
Vol. 13, No. 5, Pg. 30.
Five ways to get a spouse out of the house
30Five ways to get a spouse out of the houseBy Gregory S. FormanWhen a marriage no longer works, one spouse typically wants the other spouse to leave. However, until the parties actually separate, the Family Court lacks the power to determine custody or support issues, although the court can, under circumstances noted below, order one spouse to leave and then set custody and support. Thus, without a written separation agreement, there are important strategic advantages to staying in the house. The aphorism "if you want the house, don't leave the house; if you want the kids, don't leave the kids" may not be universally true, but it is almost always good advice. The party who moves out of the house and leaves the children weakens his or her custody claim and destroys any claim that the other parent is unfit. The party who moves out and takes the children risks a claim that he or she has disrupted the children's lives. Finally, the party that moves out may have to defend claims of abandonment and will have a harder time proving fault.
32It is quite common for unhappy wives to ask their husbands to leave. Because typically the husband will have the financial obligations and the wife will be the residential custodial parent, it behooves the husband to remain in the home until he negotiates a separation agreement with financial obligations he can meet and parenting rights he can accept. Unless there is a separation agreement in place, it is inexplicable that attorneys still counsel husbands to leave the marital home in times of marital difficulty. The spouse who moves out may find him or herself receiving less contact with the children than was expected and may find that the court requires payment on a mortgage for a home he or she no longer occupies. Often vacating spouses will wish they had not left once the court sets their financial obligations and visitation schedule. Thus, in any case in which spousal support, equitable distribution of the marital home or child custody will be at issue, the best strategy is to keep one's client in the house and if possible, to make the other spouse leave. Following are five ways to do so.
Prove domestic abuse.
South Carolina's Protection from Domestic Abuse Act, S.C. Code Ann. § 20-4-10, et. seq, can be used to grant an abused spouse temporary possession of the marital...