Question: My wife and I have lived apart for over ten months but the first 6 months she lived with her mother, the last four months she has owned her own home. We both want a simple divorce, how do we account for the first 6 months of separation?
Answer: The South Carolina Code of Laws sets forth five grounds for divorce in South Carolina in §20-3-10. Sub-paragraph (5) is the provision for the no-fault ground as follows, “on the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year.”
The law essentially only requires living apart from one another for greater than one year. Our appellate courts have identified some things that do not qualify as living “separate and apart” such as one spouse moving out of the marital bedroom and sleeping in the basement or the couch in the den. Likewise, living in an RV in the backyard would also not be living separate and apart.
Your case is different. You did separate and your wife moved into her mother’s home for the first six months of separation and later she purchased a home of her own.
In a hearing for divorce on this ground the evidence is typically the testimony of a witness who has a good relationship with one or both of the parties who can corroborate that you have lived apart for more than one year and have not resumed cohabitation during that time. So, in your case, perhaps her mother could testify that your wife moved in with her for six months and then moved into her own home. She could go on to testify that when your wife moved out of her home she moved into a new home of her own and she keeps up with her daughter on a regular basis and is confident that the two of you have not resumed cohabitation.