Do We Have to Separate and if I do, will I lose any rights?

Question: My spouse is threatening to sue me for abandonment if I leave and telling me that I won't get anything from the home if I leave the home.  Our marriage is over and I cannot stay there any longer.  Can I leave the home or am I required to stay?  Answer:This is a very common threat in divorce matters.  The fear of the unknown and a lack of understanding of the law keeps people together - even in dangerous or abusive situations.  So, let's look a little deeper.  Is is okay to leave the home or will you forfeit some rights if you move out?I'll start out by saying that the implications of moving out first can be far-reaching so you should definitely consult with a lawyer in your area about the specifics of your case to determine how this may affect you.In general, South Carolina law requires you to live separate and apart from one another to file for divorce on the grounds of continuous separation for more than one year (the South Carolina no fault divorce ground), desertion, and for separate support and maintenance (similar to a legal separation in other states).  In 2011 the South Carolina Supreme Court clarified this in Theisen v. Theisen, 394 S.C. 434, 716 S.E.2d 271 (2011).    It is possible to file for a divorce based on habitual drunkenness, adultery, and physical abuse while still remaining in the same home.So, it is possible to file some actions before you separate, but other actions require the separation.  So, when your spouse says that they will file for abandonment if you move out, that is usually a trumped up threat than cannot be backed up.  South Carolina law requires a physical separation in many cases.Now, can you forfeit rights by moving out?  This is always a risk on a temporary basis.  The issue is usually that you are seeking custody of the children and need to file for the divorce or separation but your spouse refuses to move out.  Sometimes your only option may be to move out so the court has jurisdiction to decide your case.  But, many times the judge may decide that the party who moved out chose not to live in the former marital home and may not allow them to return.  But, this is a temporary decision. In the overall division and apportionment of the marital assets/debts it will not matter which spouse moves out initially.Without moving out of the home you could attempt to come up with facts sufficient to claim a fault-based divorce ground to keep you from having to move out.  Many times this will lead people to making trumped up claims of fault with no real evidence and make the case more contested and more difficult to resolved by settlement later on.Like I stated before, the specific facts of your case may make your decision easier to make.  Please consult with a lawyer in your area to find out more.  I would be more than happy to schedule a time for us to discuss your divorce or separation case.