Is it okay to move out before the divorce?

The Civil Act (민법) sets malicious desertion of a spouse as a ground for divorce (Civil Act Article 840, Item 2), but case law holds that this means abandoning, without a valid reason, the duties to live together, help each other and provide support. If you left to escape verbal abuse, violence or ongoing conflict, you do not bear responsibility for the breakdown just because you left first.

Conversely, if you cut off contact and even living expenses without any explanation, the risk of being accused of desertion grows. The law also states that spouses must accept each other temporarily living apart for a justifiable reason (Civil Act Article 826(1)).

A long separation is sometimes treated as a sign that the marriage has broken down beyond repair, but there is no rule that it is automatically considered broken down after a certain number of years.

• Send your spouse a short message explaining why you are leaving. It becomes a record that you did not simply vanish.
• Write down the date the separation began. It will be used later when property division and the time of breakdown are examined.
• Take photos of records that will be hard to see again once left at home, such as the home's register, loans, bank statements and insurance policies.
• Take your ID, your children's documents, bankbooks and cards in your name, and medication.
• If there is a joint account or family card, agree by message on rules for using it so that spending after you leave does not become a dispute.

It is usually not a problem for the parent who has actually been caring for the children to leave with them. However, if you completely block the other parent from seeing them, you may later be seen as an uncooperative parent when the custodial parent is decided. It is better to set how they will meet.

Suddenly changing schools or daycare disrupts the children's lives, so be careful. If your spouse tries to take the children, you can file a lawsuit and apply for a pre-trial measure (사전처분) designating a temporary custodial parent.

If circumstances forced you to leave alone without the children, keep in steady contact asking how they are and arranging to visit. This becomes a record showing your will to raise them.

Moving the children's registered address may change their school assignment, so think about the timing of the move-in report too.

Even living apart, spouses have a duty to support each other and share living costs (Civil Act Articles 826 and 833). If your spouse has cut off living expenses, you can claim spousal support (부양료) or marriage expenses (혼인생활비용), or, during a lawsuit, ask for temporary living expenses and child support to be set through a pre-trial measure.

Leaving the home does not end your right to property division (재산분할) of that home. However, assets one spouse built up alone during a long separation may be excluded from division, so the date the separation began matters.

If you have kept sending living expenses, those transfer records show you fulfilled your duty of support. If you did not, you need to be able to explain why.

If you are not considering a lawsuit, you can also petition for a spousal support ruling on its own.

If your spouse left home, record the date they left and what they said at the time. If contact has been cut off and no living expenses are coming, your records of living costs during that period support a claim of desertion and a spousal support claim. Throwing out your spouse's belongings or changing the door code to keep them out can lead to new disputes, so arrange the removal of belongings on a set date and keep a record by message.

Even during a separation, as long as you are legally married, a relationship with someone else can be treated as infidelity. The judgment may differ if the marriage had already broken down beyond repair, but disputes easily arise over when that point was reached. It is safer to be careful until the divorce is settled.

Conversely, if you learn your spouse is seeing someone else during the separation, keep the dates and material separately. They are used when responsibility for the breakdown of the marriage is examined.

At Jisan Law, we work out with you what to leave in place when you separate and how to settle living expenses and matters concerning the children. If you want to talk it over once before leaving, contact us through the chat on this page.