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Filing for Divorce While Living Together in South Carolina: Watson v. Watson

Filing for Divorce While Living Together in South Carolina: Watson v. Watson

Case: Watson v. Watson, 460 S.E.2d 394 (S.C. 1995)
Court: South Carolina Supreme Court
Decision Date: July 24, 1995

Can You File for Divorce While Still Living in the Same House in South Carolina?

Many South Carolina couples facing divorce wonder whether they must physically separate before filing divorce papers. The landmark case Watson v. Watson definitively answered this question: spouses do NOT need to be physically separated to file for divorce in South Carolina when seeking divorce based on fault grounds other than desertion.

The Watson v. Watson Case: Facts and Procedural History

John Tommy Watson filed for divorce from Tracy Watson based on adultery, seeking custody of their child. The critical issue was that both parties were still living in the marital home when the divorce action was commenced.

Tracy Watson filed a motion to dismiss, arguing the family court lacked jurisdiction because the parties had not physically separated. The family court granted the motion on both jurisdictional and public policy grounds.

The South Carolina Supreme Court reversed, establishing important precedent for divorce proceedings in the state.

The Supreme Court’s Ruling: Subject Matter Jurisdiction

The Court first addressed the jurisdictional argument. The family court unquestionably has subject matter jurisdiction over marital litigation under S.C. Code Ann. § 20-7-420(2). The Court reversed the lower court’s holding that physical separation was required for the court to have jurisdiction over the case.

Key Legal Principle: The family court has power to hear divorce cases regardless of whether the parties are physically separated at the time of filing.

Public Policy Analysis: Protecting Children and Parents

The Supreme Court’s public policy analysis is particularly instructive for South Carolina families. While acknowledging that South Carolina’s public policy strongly favors protecting marriage (indeed, South Carolina is the only state that addresses divorce in its constitution), the Court recognized that once grounds for divorce are proven, parties are entitled to judicial dissolution of their marriage.

The Court’s Practical Reasoning

The Court identified three unacceptable choices that would face divorcing parents if physical separation were required before filing:

1. Vacate the home with the children, causing additional disruption in the children’s lives
2. Vacate the home without the children, effectively abandoning them to the other spouse
3. Continue in the marriage despite having legitimate grounds for divorce

The Supreme Court held that public policy permits a party to remain in the marital home and institute divorce litigation based on fault grounds other than desertion.

Important Distinctions: When Physical Separation IS Required

The Watson decision includes a critical footnote that practitioners must understand. Physical separation IS required for divorce actions based on:

• One-year separation (S.C. Code Ann. § 20-3-10(5))
• Desertion (S.C. Code Ann. § 20-3-10(4))

For these grounds, the complaint must allege the parties were physically separated for the required period before filing. See Singley v. Singley, 256 S.C. 117, 181 S.E.2d 17 (1971).

Practical Implications for South Carolina Divorce Cases

For Fault-Based Divorces

If you are filing for divorce based on:

• Adultery
• Physical cruelty
• Habitual drunkenness

You may file your divorce action while still residing in the marital home. The Court recognized this allows the filing spouse to protect their interests and maintain stability for children during the pendency of litigation.

Living Arrangements During Litigation

The Watson Court noted that living arrangements during divorce proceedings should be determined at the temporary hearing, not used as grounds for dismissal of the action. This gives family courts flexibility to issue appropriate temporary orders regarding possession of the marital home.

Addressing Collusion and Condonation Concerns

The family court judge in Watson expressed concern about potential collusion or condonation when spouses continue living together. The Supreme Court held these are evidentiary issues to be explored at hearing, not justifications for dismissal of the action.

The Court cited Murray v. Murray, 271 S.C. 62, 244 S.E.2d 538 (1978), where a husband did not condone his wife’s misconduct despite remaining in the marital home on advice of counsel and for the sake of the parties’ young child.

Strategic Considerations for South Carolina Divorce Attorneys

Watson v. Watson provides important guidance for family law practitioners:

1. File when grounds exist: Don’t delay filing a fault-based divorce simply because the client hasn’t moved out
2. Address living arrangements at temporary hearing: Request appropriate temporary orders regarding possession of the marital home and custody arrangements
3. Document lack of condonation: When clients remain in the home after discovering fault grounds, document the reasons (financial, children’s stability, attorney advice) to rebut any condonation defense
4. Consider custody implications: For clients seeking custody, remaining in the home with the children may strengthen their position regarding custody and maintaining the status quo

Conclusion: Understanding Your Rights in South Carolina Divorce

The Watson v. Watson decision provides important protections for South Carolina spouses seeking divorce. You can file for divorce based on fault grounds while still living in the marital home, and the court will address living arrangements during litigation through temporary orders.

If you are considering divorce in South Carolina and have questions about whether you need to separate before filing, or how living arrangements will be handled during your case, contact an experienced South Carolina family law attorney to discuss your specific situation.

The information in this blog post is for general informational purposes only and does not constitute legal advice. For advice regarding your specific situation, please consult with a South Carolina family law attorney.

About Klok Law Firm LLC: We are a Charleston-based family law firm representing clients throughout South Carolina in divorce, custody, alimony, and other family court matters. Contact us for a consultation regarding your family law case.

By Suzanne Klok|2025-11-12T15:54:18+00:00April 12th, 2023|Adultery, Discovery|Comments Off on Filing for Divorce While Living Together in South Carolina: Watson v. Watson

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Filing for Divorce While Living Together in South Carolina: Watson v. Watson

Case: Watson v. Watson, 460 S.E.2d 394 (S.C. 1995)
Court: South Carolina Supreme Court
Decision Date: July 24, 1995

Can You File for Divorce While Still Living in the Same House in South Carolina?

Many South Carolina couples facing divorce wonder whether they must physically separate before filing divorce papers. The landmark case Watson v. Watson definitively answered this question: spouses do NOT need to be physically separated to file for divorce in South Carolina when seeking divorce based on fault grounds other than desertion.

The Watson v. Watson Case: Facts and Procedural History

John Tommy Watson filed for divorce from Tracy Watson based on adultery, seeking custody of their child. The critical issue was that both parties were still living in the marital home when the divorce action was commenced.

Tracy Watson filed a motion to dismiss, arguing the family court lacked jurisdiction because the parties had not physically separated. The family court granted the motion on both jurisdictional and public policy grounds.

The South Carolina Supreme Court reversed, establishing important precedent for divorce proceedings in the state.

The Supreme Court’s Ruling: Subject Matter Jurisdiction

The Court first addressed the jurisdictional argument. The family court unquestionably has subject matter jurisdiction over marital litigation under S.C. Code Ann. § 20-7-420(2). The Court reversed the lower court’s holding that physical separation was required for the court to have jurisdiction over the case.

Key Legal Principle: The family court has power to hear divorce cases regardless of whether the parties are physically separated at the time of filing.

Public Policy Analysis: Protecting Children and Parents

The Supreme Court’s public policy analysis is particularly instructive for South Carolina families. While acknowledging that South Carolina’s public policy strongly favors protecting marriage (indeed, South Carolina is the only state that addresses divorce in its constitution), the Court recognized that once grounds for divorce are proven, parties are entitled to judicial dissolution of their marriage.

The Court’s Practical Reasoning

The Court identified three unacceptable choices that would face divorcing parents if physical separation were required before filing:

1. Vacate the home with the children, causing additional disruption in the children’s lives
2. Vacate the home without the children, effectively abandoning them to the other spouse
3. Continue in the marriage despite having legitimate grounds for divorce

The Supreme Court held that public policy permits a party to remain in the marital home and institute divorce litigation based on fault grounds other than desertion.

Important Distinctions: When Physical Separation IS Required

The Watson decision includes a critical footnote that practitioners must understand. Physical separation IS required for divorce actions based on:

• One-year separation (S.C. Code Ann. § 20-3-10(5))
• Desertion (S.C. Code Ann. § 20-3-10(4))

For these grounds, the complaint must allege the parties were physically separated for the required period before filing. See Singley v. Singley, 256 S.C. 117, 181 S.E.2d 17 (1971).

Practical Implications for South Carolina Divorce Cases

For Fault-Based Divorces

If you are filing for divorce based on:

• Adultery
• Physical cruelty
• Habitual drunkenness

You may file your divorce action while still residing in the marital home. The Court recognized this allows the filing spouse to protect their interests and maintain stability for children during the pendency of litigation.

Living Arrangements During Litigation

The Watson Court noted that living arrangements during divorce proceedings should be determined at the temporary hearing, not used as grounds for dismissal of the action. This gives family courts flexibility to issue appropriate temporary orders regarding possession of the marital home.

Addressing Collusion and Condonation Concerns

The family court judge in Watson expressed concern about potential collusion or condonation when spouses continue living together. The Supreme Court held these are evidentiary issues to be explored at hearing, not justifications for dismissal of the action.

The Court cited Murray v. Murray, 271 S.C. 62, 244 S.E.2d 538 (1978), where a husband did not condone his wife’s misconduct despite remaining in the marital home on advice of counsel and for the sake of the parties’ young child.

Strategic Considerations for South Carolina Divorce Attorneys

Watson v. Watson provides important guidance for family law practitioners:

1. File when grounds exist: Don’t delay filing a fault-based divorce simply because the client hasn’t moved out
2. Address living arrangements at temporary hearing: Request appropriate temporary orders regarding possession of the marital home and custody arrangements
3. Document lack of condonation: When clients remain in the home after discovering fault grounds, document the reasons (financial, children’s stability, attorney advice) to rebut any condonation defense
4. Consider custody implications: For clients seeking custody, remaining in the home with the children may strengthen their position regarding custody and maintaining the status quo

Conclusion: Understanding Your Rights in South Carolina Divorce

The Watson v. Watson decision provides important protections for South Carolina spouses seeking divorce. You can file for divorce based on fault grounds while still living in the marital home, and the court will address living arrangements during litigation through temporary orders.

If you are considering divorce in South Carolina and have questions about whether you need to separate before filing, or how living arrangements will be handled during your case, contact an experienced South Carolina family law attorney to discuss your specific situation.

The information in this blog post is for general informational purposes only and does not constitute legal advice. For advice regarding your specific situation, please consult with a South Carolina family law attorney.

About Klok Law Firm LLC: We are a Charleston-based family law firm representing clients throughout South Carolina in divorce, custody, alimony, and other family court matters. Contact us for a consultation regarding your family law case.