My Spouse Won't Leave...Can I Still File for Divorce?

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.

Should I Communicate with my Spouse During Our Divorce?

I think this question will get different answers from different attorneys, and I think the main difference will revolve around the individual attorney's opinion on the "best way" to resolve your marital issues.  Here are the two viewpoints:

Do Not Communicate with Your Spouse

A lawyer may recommend that you not communicate with your spouse during the divorce if he/she feels like a trial and decision by a judge or for the lawyers to solely negotiate the outcome of the case are the best ways to resolve your case.Of course, there may be times when you and your spouse do not need to speak with one another regardless of the opportunity to settle.  When there is a history of abuse (both mental and physical) or if things always escalate into an argument or a fight then you may want to hold off on working with them.

Communicate with Your Spouse

When an attorney encourages you to speak with your spouse during the course of your divorce case, it is usually because they recognize that you and your spouse know more about your case than anyone else on the earth and that you are in a better position to know what you need in order to resolve your case.  All that said; however, your attorney knows what you are entitled to receive in your divorce case, so you should consider your attorney's advice on what not to give up in your negotiations with your spouse.

What Should You Do?

I think it is ultimately up to you.  Your attorney may encourage you to communicate with your spouse or he may ask you not to speak to your spouse about your case to allow him to assist you through the negotiations to make sure you aren't taken advantage of by your spouse.  You know yourself and if you believe you are likely to be influenced by your spouse to accept something that is not in your best interest or less than you are entitled to, you should probably make that known to your attorney so he knows that you should have limited communication with your spouse on your own when it comes to negotiating in your case.