The question usually arrives the same way. Your spouse left for their mother's house on Thursday. You are standing in the kitchen Friday morning, and a locksmith could be there by noon. Is anything stopping you?

Usually, no. Very little stops you from changing the locks on a house you live in. That is a different question from whether you should, and in most South Carolina divorces the answer to the second question is no. There is one situation where it is the right call, and it is near the end of this post.

Whose name is on the deed is not the answer

Most people assume the deed settles it. It does not. South Carolina law defines marital property as all real and personal property acquired by the parties during the marriage and owned as of the date of filing — regardless of how legal title is held.

A house bought during the marriage is marital property whether the deed lists both of you, one of you, or one of you and a parent. Being the only name on the mortgage does not hand you the authority to decide who sleeps there.

That decision belongs to the Family Court, which has exclusive jurisdiction over marital litigation and over settling the parties' legal and equitable rights in the real property of the marriage.

Why the locksmith usually makes things worse

Three reasons, and the first is the one people forget.

It does not work. Your spouse still lives there. New locks do not change that, and a person determined to get back into their own home generally does.

It escalates something you want calm. A lockout turns a manageable separation into a war, and wars are expensive in a way that has nothing to do with justice.

And the judge will hear about it. Family Court judges see self-help constantly and are not impressed by it. You will spend the early part of your case explaining a decision you made in a bad hour, instead of talking about the things that actually affect your outcome. If you had a real reason, say so plainly. If you did it because you were furious, that will be obvious.

What actually settles who stays

In a divorce or separation case, who lives in the house while the case is pending is decided at a temporary hearing. The court can award one spouse temporary exclusive use and possession of the marital home.

That is the difference between a lock you changed and a lock backed by an order. Once the court has awarded possession to one spouse, the other cannot simply come back. Entering in violation of the order exposes them to contempt.

Getting there takes a filing and a hearing rather than an afternoon. That is the point — the order is what makes the result hold. Whether moving out costs you the house is a separate question, and one we took up recently in If I Move Out, Do I Lose the House?.

Once you have the order, change everything

When the court gives you temporary possession, do the practical work that same week.

Change the locks. Change the garage code. If you have a security system, change the codes and call the provider — they will often want a copy of the temporary order before removing someone from the account. Then think about who else holds a key: a parent, a neighbor, the person who walks the dog.

None of that is hostility. It is the ordinary work of separating two households, and doing it promptly heads off the 2 a.m. phone call that starts another round of litigation.

If you are afraid of your spouse, this is a different question

Everything above assumes a hard divorce between two people who are not dangerous to each other. If that is not your situation, do not wait for a temporary hearing.

South Carolina's Protection from Domestic Abuse Act lets a household member — which includes a spouse and a former spouse — petition the Family Court for an order of protection. That order may temporarily prohibit the other person from entering or attempting to enter your residence.

After a hearing, the court may go further and grant you temporary possession of the residence to the exclusion of the other party, where that party has a legal duty to support you and the home is jointly owned or leased, or owned or leased by them alone.

The same order can address temporary custody of children living in the home and temporary financial support.

Violating an order of protection is a criminal offense. That is the practical difference between a changed lock and an order. One is a piece of hardware. The other is enforceable.

What this means for you

If you are angry, wait. Call a lawyer before you call a locksmith. The relief you want — your spouse out of the house — is available, and it is available in a form that holds up.

If you are frightened, do not wait. That is a different track with different tools, and it moves faster than a divorce case does.

And if you have already changed the locks before reading this, tell your lawyer today. It is a manageable fact when your attorney hears it first. It is a bad one when the judge hears it first.

If you are in danger, please do not work through this alone. The National Domestic Violence Hotline is available 24 hours a day at 1-800-799-7233.

Stevens Family Law, LLC represents clients in complex and high net worth family law matters across South Carolina. If you are working out who stays in the home while your case is pending, we would be glad to talk with you. You can contact our office at (864) 598-9172 or by using the Contact Form on this page.

This article is general information, not legal advice, and reading it does not create an attorney-client relationship. Whether a court awards exclusive possession of a home, or grants an order of protection, depends entirely on the facts of the individual case.