Recently, this question was posted as a comment on a blog post, “I want a divorce because my husband is a verbal and physical abuser when he drunks. Be won’t leave the house. Can I still file for divorce?”
South Carolina has five grounds for divorce: physical abuse, habitual drunkenness, adultery, desertion, and the no fault ground of living apart continuously for a period in excess of one year. If you do not qualify for one of the fault-based grounds for divorce you could also file for separate support and maintenance.
The desertion ground and no fault ground for divorce requires that you live separate and apart for more than one year. You are also required to live in separate residences to file for separate support and maintenance. So, if your circumstances fall into one of those three categories and you cannot get your spouse to leave the home, your only option will be to leave the home yourself and immediately file for separation or divorce and seek possession of the home as temporary relief at an initial hearing.
If you are filing under physical abuse, habitual drunkenness, or adultery grounds you do not have to live separate and apart before filing for divorce. Under those circumstances you may file while you are still living together. But, just because you are able to do something doesn’t mean it is the right course of action for you. If your spouse is verbally and physically abusive under the best circumstances, how do you think they will respond when they have been served with divorce papers? It would probably not be safe for you to remain in the home with your spouse during that time.
I would suggest setting up a consultation with a divorce attorney in your area to discuss the circumstances of your case to determine if your case will qualify for one of those fault-based divorces and to come up with a strategy that will help you remain in your home, but under safe circumstances.