Material for South Carolina Bar “Cool Tips” Lecture, April 2002; Published in South Carolina Lawyer, March 2002
When a marriage is no longer working, 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 (though the court can, under circumstances noted below, order one spouse to leave and then set custody and support). Thus, absent 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.
It is quite common for unhappy wives to ask their husbands to leave. Since the husband is typically the person with the financial obligations and the wife will typically 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. Here are five ways to do so.
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 home. Upon a finding of domestic abuse, the court may grant the abused spouse temporary possession of the parties’ residence. Id. § 20-4-60 (c)(3).
The two major advantages to Domestic Abuse actions are that they are provide prompt access to the court and that there is not a high threshold to prove domestic abuse. Hearings must be set within fifteen days of the filing of a petition (§ 20-4-50 (b)) and can be set within 24 hours in an emergency situation. § 20-4-50 (a). The definition of abuse includes “assault, or the threat of physical harm,” so an actual physical harm does not have to be proven. § 20-4-20 (a)(1).
In addition to providing the abused petitioner possession of the marital domicile, the Domestic Abuse order can also provide for temporary spousal and child support, custody and visitation. § 20-4-60(c)(1 & 2). By proving domestic abuse, a spouse can obtain temporary exclusive possession of the marital domicile along with temporary custody and support. That spouse can then file a separate maintenance action at any time prior to the expiration of the Domestic Abuse order.
Since Domestic Abuse orders are quick and efficient methods for getting a spouse out of the house, they are subject to abuse. Spouses will often attempt to prompt or instigate fights in order to call the police and set up domestic abuse proceedings. Since much domestic abuse becomes a “he said/she said” swearing contest, it is important to protect a client from false allegations of domestic abuse. In situations in which a client might be subjected to false allegations of domestic abuse, the purchase of a small hand-held tape (or even video) recorder is useful. Then, whenever the other spouse attempts to prompt a physical altercation, the client merely needs to hold the recorder up and start recording (announcing “tell it to the nice Family Court Judge, honey” when the client begins recording, adds an entertaining-though not always calming-touch). The recording can be useful in proving that abuse did not take place. It can also show that the spouse claiming abuse was actually the aggressor, which is arguably a defense to claims of domestic abuse. See § 20-4-120 (“The petitioner’s right to relief under this chapter is not affected by the use of such physical force against the respondent as is reasonably believed by the petitioner to be necessary to defend the petitioner or others from imminent physical injury or abuse.”)
Watson v. Watson, 319 S.C. 92, 460 S.E.2d 394 (1995) authorizes the family court to entertain an action for adultery, physical cruelty or habitual drunkenness (but not desertion) divorce where the parties are not separated. If a prima facie showing of fault grounds is made at the temporary hearing, the court can order the at-fault party out of the marital home.
Obviously, having substantial evidence for a fault based divorce is good leverage for getting the other spouse out of the house. When one represents a spouse who is intending to separate but has not yet separated, it is wise counsel to discourage the client from engaging in behaviors that allow the court to order the client out of the marital home (e.g., now is not the time to develop a drinking problem or begin dating).
Where the parties are living together, the court cannot entertain an action for separate maintenance. Ariail v. Ariail, 295 S.C. 486, 369 S.E.2d 146 (Ct.App. 1988). Thus methods of “forcing” a separation have been developed.
Occasionally, a spouse will return home to find the locks have been changed. If the locked-out spouse stays away, the other spouse can file an action for separate maintenance. See S.C. Code Ann. § 63-3-530(2). However, unless there is a court order preventing the locked-out spouse from entering the house, nothing prevents that spouse from breaking a window and re-entering his or her home.
Generally the police (or at least the police in the Charleston area) will counsel locked-out spouses to break a window to reenter the home. Sometimes the police will even demand that the other spouse unlock the door and allow the locked-out spouse access to the home. A spouse who does not want to stay locked-out, probably will not. While this method of creating a separation can be effective, it generally is not.
Once the parties are separated, either spouse may bring a separate maintenance action. As part of such action, a spouse may seek “settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage.” S.C. Code Ann. § 63-3-530(2). Thus, the vacating spouse may still seek the equitable right to occupy the marital residence, pendente lite and permanently. Sometimes, moving out is the only way to start the “separation.”
However, moving out presents great risks. Absent substantial evidence that the vacating spouse was justified in vacating, the court is unlikely to award the vacating spouse pendente lite possession of the marital home. Further, the move may be seen as disruptive of the children’s lives. Moving without the children weakens that party’s claim for custody (if seeking custody) or substantial visitation (if the client is merely seeking visitation).
Obviously the vacating spouse’s position is stronger if he or she leaves due to the other spouse’s cruel or inhuman behavior. See. S.C. Code Ann. § 63-3-530(18) (The court may “make an order for support of a husband or wife and children by his or her spouse, even though he or she may have left the home, in cases where the spouse’s conduct or condition or his or her cruel or inhuman behavior made it unsafe or improper for the deserting spouse to continue to live with him or her”).
Absent a written separation agreement, and especially in cases involving contested custody or visitation, a party should have a strong justification for moving out of the marital home. Otherwise the move provides the remaining spouse overwhelming leverage.
Except in cases of fault divorce or domestic abuse, this is actually the best way to begin a marital dissolution. Through the process of negotiation the parties may decide whether their needs can both be accommodated through a separation. Often parties who are unhappy in the marriage decide to work on the marriage instead when they understand the expected financial obligations or diminished parental relationship they will have after the separation. Often spouses will determine that the expenses of running two households cannot be maintained on the parties’ combined incomes (it is amazing how many couples separate over financial difficulties, thereby exacerbating those difficulties).
The process of negotiating a separation agreement with the parties still cohabiting forces both parties to look realistically at the financial and parenting issues surrounding the marital breakup. In situations in which one party wants the breakup and the other does not, the party not seeking the breakup has leverage to get his or her parenting and financial needs met as a condition of the breakup. Further, with a negotiated separation, both parties can realistically assess whether the separation will leave them happier than continued cohabitation without the fear of a court imposing untenable financial obligations or limited parenting rights.
Sometimes, just the act of filing the lawsuit will force the spouse to wake up to the idea that the marriage is over and get them at least talk to an attorney thereby causing the negotiation process to begin. Though jurisdiction can be defeated by raising Watson, often either the parties or their lawyers can help the parties come up with the necessary temporary division of “stuff” and debts as well as a parenting plan prior to the temporary hearing.
CONCLUSION
In any unhappy marriage the ability to reside in the marital home (at least until a negotiated separation agreement is reached) provides vital leverage in favorably resolving marital dissolution issues. Determining ways to remove the other spouse from the home (or keep one’s client in the home) may affect whether one’’s client is able to achieve his or her goals as part of the marital dissolution.
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