Take the irreplaceables with you when you leave your spouse

South Carolina does not allow actions for separate maintenance until spouses actually separate.  Thus, when an unhappy spouse who lacks fault grounds for divorce has a partner who won’t negotiate a separation agreement the only option is to leave the marital home.  Such spouses don’t always consult with an attorney before leaving.  This blog is advice for anyone who contemplates leaving his or her spouse.

Any leaving spouses should follow is to take the irreplaceables with them when they leave.  Too often such spouses take fungible items (furniture, kitchen items, electronics) but leave some (much) of their clothing.  Often, they leave important documents such as Social Security cards, diplomas, birth certificates, or passports.  Worst of all is when they leave family heirlooms, sentimental items, or expensive jewelry.

In a situation in which one spouse leaves suddenly, the other spouse is likely surprised and angry.  Leaving that spouse in possession of irreplaceable items is foolhardy.   Important documents can be replaced but only at some trouble and expense.  However, jewelry, clothing, and family heirlooms left behind are often irretrievable. 

In the midst of domestic litigation, access to items left in the marital home will require a court hearing (if the other spouse won’t agree to return them).  Hearings require notice.  Drafting the motion and preparing for the hearing will incur fees.  The other spouse will be aware the leaving spouse desires these items’ return well before the family court addresses that issue.   There will be inevitable arguments as to whether that spouse has possession of the items and what condition the items were in when cohabitation ended. 

Often the remaining spouse will claim he or she doesn’t have these items or will return the items in damaged condition, claiming they were in that condition when the other spouse left.  It is almost impossible to prove otherwise.  The situation is even worse when a mother leaves a father with whom she cohabits.  Unless there is a finding of domestic abuse, there is simply no family court mechanism to get her items returned.

Too often I have no ability to get irreplaceable items returned.  When a client gets angered at my inability to remedy this problem, I can only empathize and note that if the items was irreplaceable it should not have been left.

Spouses who plan to vacate the marital home should plan on taking every irreplaceable item with them when they leave.