When is Property Considered Abandoned After a Divorce?

One of the most common pieces of lay advice given concerning divorce is “Whatever you do, do not leave the marital home, or you abandon your rights.” While well-intentioned, this advice is misleading. In South Carolina, the marital home is not considered abandoned simply because one spouse moves out prior to divorce. However, leaving the marital home can have implications for property division, support, and child visitation matters.

Abandonment in South Carolina

Prior to 1969, all divorces in South Carolina were fault-based divorces. Abandonment was one of the fault grounds for divorce. A person could petition the court for a divorce based on abandonment if the person could prove their spouse:

1. left the marital home,
2. did so without consent or cause,
3. remained absent for one year, and
4. failed to provide financial support.

Although South Carolina law was amended to allow for no-fault divorces, abandonment as a fault ground remains on the books and now accounts for fewer than 0.5% of divorces in the state.

Today, most divorces in South Carolina are no-fault divorces. You may have heard the term irreconcilable differences. This means that neither party is required to prove that the other legally violated a tenant of the marriage. Rather, the couple can agree that the marriage is broken beyond repair. This approach is generally faster and less expensive. However, a no-fault divorce in South Carolina requires the couple to be separated for one year before the divorce can be granted.

This mandatory one-year separation is often confused with the one-year absence requirement for a fault divorce due to abandonment. That confusion can lead to the incorrect conclusion that you cannot leave the marital home prior to obtaining a divorce.

Is My Home Marital Property?

South Carolina is an equitable distribution jurisdiction. This means marital assets are divided based on what is fair, rather than a 50/50 split. Property that is acquired, in whole or in part, with marital funds during the marriage is considered marital property. A home purchased during the marriage is therefore marital property and subject to division upon divorce.

Moving out does not void your rights to the marital home or your interests in marital assets. However, when dividing marital property or issuing temporary orders for support or possession, a court may consider which party is currently living in the home.

Can We Both Stay in the Home and Still Meet the One-Year Separation Requirement?

No. Living separately within the same residence, such as sleeping in different rooms and maintaining separate lives does not qualify as living separate and apart.

Can I Change the Locks to Force My Spouse Out of the Marital Home? Can My Spouse Force Me Out?

In South Carolina, you may not change the locks to the marital home to force your spouse out unless there is a court order directing one spouse to vacate the property. A spouse who moves out retains a legal right to access the marital home as long as they share ownership or are listed on the lease. This means the spouse remaining in the home may not change the locks, block entry, or remove the other spouse’s belongings without court authorization.

I’ve Decided to Leave the Marital Home in Anticipation of Divorce, Now What?

1. Consider where you will live. Relocating to a different city, county, or state may impact your legal options.
2. Plan before you leave. Once you move, you lose control over what occurs inside the home. Consider the maintenance and care of the home, furniture, and your personal belongings before leaving. You should plan to take important personal documents and non-marital property, including:

• Passport
• social security card
• birth certificate
• family heirlooms
• jewelry
• photos
• sentimental items

Also consider taking an inventory of all assets in the home before leaving, as this information may become difficult to obtain later in the divorce process.

3. Keep Records. Maintain detailed documentation of your financial and non-financial contributions to the marital home, even after you move out. This information will be important during the division of debts and assets portion of your divorce.
4. Consider child-related implications. In South Carolina, child visitation plans are based on the best interest of the child. This analysis may include which living arrangement is least disruptive. Particularly with temporary custody matters, whether you remain in the marital home with the children, leave with the children, or leave without them may affect visitation and parenting time.

What if the Court Grants You Possession of the Marital Home, but Your Ex-Spouse Still Has Property There?

If a court grants you possession of the marital home, you may change the locks and prevent your ex-spouse from entering the property at will. However, if your ex-spouse still has property in the home, additional legal issues may arise, including how long after the divorce until the property is considered abandoned.

Your divorce decree or property settlement agreement should specify which items belong to each party. While it is understandable to want your former spouse’s belongings removed promptly, it is important to ensure that you are not violating the court order or South Carolina property laws by improperly removing your ex’s property.

Contact Brinkley Law Firm for Your Consultation Today

Navigating separation, divorce, visitation, and the division of property can be incredibly complicated. Having a lawyer by your side can protect your interests and prevent missteps. If you are considering divorce or need help navigating post-divorce custody issues, Brinkley Law Firm, LLC can guide you through the process. As experienced Charleston family law attorneys with a strong track record of helping families navigate difficult situations, we understand the emotional and legal complexities of post-divorce parenting. Our team is committed to helping you find a solution that works best for your family while protecting your rights.

Contact Brinkley Law Firm today to schedule a consultation and learn more about how we can assist you in creating a plan that meets your needs. Together, we can help you through this challenging time and build a brighter future for your family.