Abandonment is a term that comes up frequently in divorce cases. But what exactly constitutes abandonment, and how does it impact divorce proceedings in South Carolina? This article will explore the legal definition of abandonment, how it’s proved, how it affects property division, spousal support, and child custody, and when it can be used as grounds for divorce.
What Constitutes Spousal Abandonment or Desertion?
Spousal abandonment, often also referred to as desertion, involves one spouse leaving the marital home without the consent or agreement of the other spouse, with the intention of ending the marriage.
Abandonment may be physical – when one spouse physically leaves the marital home, or it may be constructive – where a spouse may stay in the same house but withdraws from marital responsibilities and refuses to engage in marital relations. Both physical and emotional abandonment are considered serious and can provide grounds for divorce in many jurisdictions.
When is Property Considered Legally Abandoned After Divorce?
Just because your ex-spouse picked up and left does not mean you can immediately claim all property left behind. Instead, South Carolina has specific laws regarding how long the abandoned property must remain before being legally forfeited.
In general, personal property left behind after a divorce is considered legally abandoned only after 3 months have passed since the divorce was finalized. This includes items like clothing, jewelry, electronics, furniture, etc.
For real property like houses and land, the time period extends much longer to 1 year. If your ex-spouse leaves the marital home but fails to collect their share within 12 months after the divorce settlement, you may be able to claim the property as legally abandoned.
However, it depends on the details of your separation agreement and divorce decree. Consult an experienced South Carolina divorce attorney to understand your rights in your specific situation.
What Steps Should You Take Regarding Abandoned Property?
If you believe your ex-spouse has abandoned property in your possession after the divorce, there are a few steps you can take:
- Document – Make a detailed list of all property left behind, including description, estimated value, and date discovered. Take photos and videos as evidence.
- Give Notice – Send written notice to your ex-spouse of the abandoned property via certified mail. Explain that they have 3 months to collect personal property or 1 year for real property before you claim ownership.
- Wait – Allow the legally required time period to elapse before taking ownership of the abandoned property.
- Consult an Attorney – Speak with a qualified family law attorney before taking any action on the abandoned property. They can review your divorce decree, ensure proper procedure, and protect your rights.
Get Legal Advice Before Claiming Ownership
The laws surrounding abandoned marital property after divorce can be complex. Attempting to claim property without following proper legal procedure could put you at risk of being sued by your ex-spouse. Always consult with an experienced South Carolina divorce lawyer to understand your rights.
What Property May Be Considered Abandoned After Divorce?
Many different types of marital property could potentially be abandoned after a divorce, such as:
- Vehicles – Cars, trucks, and and motorcycles owned jointly or separately
- Bank Accounts – Joint savings or checking accounts opened during the marriage
- Retirement & Investment Accounts – 401(k), IRA, brokerage accounts in both names
- Real Estate – Houses, condos, rental properties, land owned jointly
- Businesses – Corporations, partnerships, or other businesses started during the marriage
- Personal Property – Furniture, clothing, jewelry, electronics, collectibles, artwork
- Inheritances & Gifts – Property separately inherited or gifted to one spouse
The divorce decree and separation agreement will specify how each type of marital property is to be divided or distributed. Property unlawfully taken or retained after the divorce may potentially be considered abandoned.
How Does South Carolina Law Treat Abandoned Property?
South Carolina law allows for a streamlined process for dividing or claiming abandoned marital property after a divorce:
- The spouse who abandoned the property has 3 months after the divorce decree to collect personal property before it can be considered legally abandoned.
- For real property like a house, the abandoning spouse has 1 year to claim their share based on the divorce settlement before it is deemed legally abandoned.
- The spouse in possession of the property should send written notice by certified mail and allow the required time period to elapse before taking ownership.
- Consult with an experienced South Carolina divorce lawyer to ensure you follow proper legal protocol when claiming abandoned property to avoid potential lawsuits.
- The abandoning spouse maintains legal rights to the property during the waiting period and can still contest ownership in court if not properly notified.
What Recourse is Available if Your Ex-Spouse Contests Ownership?
If your ex-spouse suddenly reappears and contests your claim to abandoned property after the waiting period has expired, they may be able to file litigation challenging ownership.
Some recourse available include:
- Negotiation – Offer to sell the property and split proceeds, buy out their share, or reach another settlement. Getting your divorce attorney involved can help.
- Mediation – A neutral third-party mediator can help reconcile disputes over property division outside of court.
- Litigation – Your ex-spouse can file a lawsuit disputing ownership rights to the property. Be prepared to defend your position in court.
- Set aside judgment – In some cases, a judge may delay ruling to extend the abandonment waiting period if proper procedure was not followed.
Having an experienced divorce lawyer represent you can help reach an equitable settlement and avoid prolonged litigation if your ex-spouse contests abandoned property ownership.
Can You File for Divorce Based on Abandonment?
South Carolina has both fault and no-fault divorce options. Abandonment for one year is one of the fault-based grounds for divorce under SC law. This means you can file for divorce solely on the basis that your spouse abandoned the marital home. You must be able to prove the abandonment.
No-fault divorce is also available in SC without needing to prove abandonment or any other marital fault. The no-fault option involves showing you and your spouse have lived separately for one year. Since abandonment necessitates living separately, either option may apply. Your divorce attorney can help determine the best legal strategy.
Does Abandoning a Spouse Impact Alimony Claims?
Whether spousal support or alimony is awarded and how much is based on several financial factors. However, marital fault like abandonment can also be considered. SC judges have discretion on whether to factor in abandonment and how much weight to give it.
Generally, abandoning a financially dependent spouse is viewed negatively. The abandoned spouse’s financial security was jeopardized by the abandonment. Especially when one spouse abandons their career for the marriage, courts lean towards granting more generous alimony awards.
Am I Still Responsible for Bills If My Spouse Abandoned Me?
Spouses are financially responsible for each other during a marriage. Abandonment does not change this. Joint debts and marital expenses must continue to be paid by either spouse as they are able. Creditors can pursue either spouse for unpaid joint accounts.
Expenses related to necessities like housing costs and minimum spousal and child support must be maintained. Some abandonment laws even allow an abandoned spouse to access their partner’s funds or accounts for living expenses or to maintain the home.
Financial obligations end once a divorce is finalized and marital property is divided. Until then, keep paying bills and seek temporary support orders if needed.
How Can a Lawyer Help You?
A lawyer can provide important legal guidance and representation if you are facing abandonment in your marriage or divorce in South Carolina.
Having a qualified divorce attorney on your side can make a major difference in how abandonment is handled. They have the expertise to advise and represent you through each stage of separation or divorce litigation. Consulting a family law firm like Okoye Law in SC early on is recommended to understand and protect your rights.