If a Family Court temporary order gives one spouse exclusive use of the home, can law enforcement issue a trespass notice against the excluded spouse, even though they still co-own the property?
Plain-English summary
Sheriff Dennis Kelly of Greenwood County asked whether his deputies should issue a trespass notice when a Family Court has temporarily given one spouse sole use of the marital home and the other spouse keeps showing up. The Sheriff's instinct was that law enforcement should hold off until the divorce produced a final order, leaving the issue to Family Court contempt in the interim.
The AG disagreed. South Carolina's trespass-after-notice statute (Section 16-11-620) applies to "any person" who refuses to leave after being asked. That includes a property co-owner. The Court of Appeals already settled this in 1999 in State v. Tyndall, where a son was arrested for trespass at the house his father lived in, even though the son owned the house. Once the Family Court grants exclusive use to one spouse, that spouse is "in peaceful possession," and they can ask law enforcement to enforce the right to exclude.
The Family Court contempt remedy and the criminal trespass remedy run in parallel. They do not displace each other.
What this means for you
If you're a deputy or municipal officer
When you respond to a call where a spouse with a Family Court temporary order is trying to keep the other spouse off jointly-owned property, the AG's view is that you can issue the trespass notice and, if the excluded spouse refuses to leave or returns after being warned, charge them under Section 16-11-620. Verify the temporary order before acting (you need to confirm the order grants exclusive use and possession to the spouse you're working with). The fact that the order is temporary, not final, does not change the analysis.
If you're a magistrate
The AG's reasoning rests on the textual breadth of "any person" in Section 16-11-620 and on the Tyndall holding that ownership does not immunize a person from a trespass-after-notice charge when someone else is in peaceful possession. Expect to see these charges; the AG explicitly confirmed they are legally available.
If you're going through a divorce or contested separation
If a Family Court temporary order has given your spouse exclusive use of a property you both own, going to that property without invitation is no longer just a Family Court issue. You can be arrested for trespass and charged with a misdemeanor under Section 16-11-620. The maximum penalty under that statute is a fine of up to $200 or 30 days in jail. You can still be held in contempt by the Family Court for the same conduct. The two remedies are independent. If you need to retrieve personal items, work that through your attorney and the Family Court, not by showing up.
If you're a family law attorney
Practical advice for your client: when negotiating or asking the court to grant exclusive use of marital property, get the temporary order in writing immediately and provide a copy to local law enforcement. The AG opinion gives officers comfortable legal cover to issue a trespass notice on the spot. Without an order in hand, officers may hesitate.
Common questions
Can my spouse have me arrested for going to my own house?
If a Family Court temporary order has given your spouse sole use and possession of that house, then yes, under the AG's reading. State v. Tyndall confirmed that ownership alone is not a defense to trespass after notice when someone else is in peaceful possession. Section 16-11-620 says "any person" can be convicted, and South Carolina courts have read that literally.
Does a Family Court contempt proceeding block a criminal trespass charge?
No. The AG specifically said the contempt process and the criminal trespass charge run in parallel. Either or both can proceed. Contempt does not extinguish the criminal violation.
What is the penalty under Section 16-11-620?
A fine of up to $200, imprisonment for up to 30 days, or both, on conviction.
What if the Family Court order is only a temporary one?
The AG explicitly addressed this. The temporary nature does not undermine the occupying spouse's ability to exclude under Section 16-11-620. The order does not need to be final.
Does the spouse in possession have to ask law enforcement, or can officers act on their own?
Section 16-11-620 references being "warned not to" enter or being "ordered or requested" to leave by "the person in possession or his agent or representative." The owner-occupant typically initiates by asking law enforcement to deliver the trespass notice. Section 16-11-620 also says "All peace officers of the State and its subdivisions shall enforce the provisions hereof," signaling a legislative preference for active enforcement.
Background and statutory framework
South Carolina's trespass-after-notice statute, Section 16-11-620, has two prongs:
- Anyone who, without legal cause or good excuse, enters the dwelling, business, or premises of another after being warned not to.
- Anyone who, having entered without warning, fails to leave when asked to do so by the person in possession or their agent.
Either path is a misdemeanor punishable by up to $200 fine or 30 days in jail.
The statute is unusually broad in two ways. First, it covers "any person," with no exception for owners. Second, it places an affirmative enforcement duty on peace officers ("shall enforce the provisions hereof").
The Court of Appeals' 1999 Tyndall decision is the leading authority. Tyndall owned a house in which his father lived. Officers asked Tyndall to leave at his father's request; he refused; he was arrested. On appeal, Tyndall argued that an owner cannot be guilty of trespass on his own property. The Court of Appeals rejected that argument, holding that "[t]he language of section 16-11-620 does not exclude an owner from the class of persons who may be convicted of trespass after notice. The section provides that '[a]ny person' who violates the statute may be convicted. A record owner's right to be on the property may be circumscribed if another person peaceably possesses the property."
Other South Carolina statutes reinforce the principle. The Residential Landlord and Tenant Act, Section 27-40-530, restricts a landlord's access to property in the tenant's possession. Section 27-40-210(6) defines "landlord" to include the owner. So statutory law explicitly contemplates situations where an owner is excluded from property they own.
In divorce or separation proceedings, Family Court has the equitable authority to allocate use and possession of marital property pending a final disposition. Once the Family Court grants exclusive use to one spouse via a temporary order, that spouse is in "peaceful possession" within the meaning of Tyndall. The other spouse, even as a co-owner, can be excluded.
The AG's opinion makes one important framing point: criminal trespass is not a substitute for the Family Court's contempt power, it is a parallel remedy. If a spouse violates a temporary order by entering excluded property, the offended spouse can ask the Family Court to hold them in contempt and can simultaneously ask law enforcement to charge them with trespass.
Citations
Cases:
- State v. Tyndall, 336 S.C. 8, 14, 17-18, 518 S.E.2d 278, 281, 283 (Ct. App. 1999)
Statutes:
- S.C. Code Ann. § 16-11-620, trespass after notice
- S.C. Code Ann. § 27-40-530, landlord access restrictions
- S.C. Code Ann. § 27-40-210(6), definition of "landlord"
Source
- Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-regarding-spouse-placing-each-other-on-trespass-during-the-pendency-of-family-court-proceedings/
- Original PDF: https://www.scag.gov/media/quvplbxr/d-kelly-final.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
ALAN WILSON
ATTORNEY GENERAL
December 19, 2025
The Honorable Dennis D. Kelly, Sheriff
Greenwood County
528 Edgefield Street
Greenwood, SC 29464
Dear Sheriff Kelly:
Attorney General Alan Wilson referred your letter to the Opinions section for a response. You ask whether it is proper for law enforcement to issue a trespass notice to a spouse who no longer has use or possession of jointly owned property pursuant to a temporary order from a Family Court. You suggest that law enforcement should not issue a trespass notice until the issuance of a final order from the Family Court. Further, noting that until the issuance of a final order, any issues regarding alleged use and possession by the excluded spouse may be resolved through the Family Court contempt process.
Law/Analysis
As an initial matter, the scenario you describe — in which one spouse has been granted sole use and possession of jointly owned property under a temporary order of the Family Court and the other spouse attempts to use or possess the property — may be grounds for contempt proceedings in the Family Court. It would appear that by attempting to use or possess the property the excluded spouse is in direct violation of the Family Court's order and is therefore subject to the contempt powers of the Family Court. However, the potential of contempt proceedings does not extinguish the possibility of criminal proceedings against the excluded spouse for trespass.
Section 16-11-620 provides:
Any person who, without legal cause or good excuse, enters into the dwelling house, place of business, or on the premises of another person after having been warned not to do so or any person who, having entered into the dwelling house, place of business, or on the premises of another person without having been warned fails and refuses, without good cause or good excuse, to leave immediately upon being ordered or requested to do so by the person in possession or his agent or representative shall, on conviction, be fined not more than two hundred dollars or be imprisoned for not more than thirty days.
S.C. Code Ann. § 16-11-620 (2015). Notably, Section 16-11-620 provides that "any person" who violates the statute may be convicted. Nothing in Section 16-11-620 prevents an owner from being convicted of trespass. In fact, other statutes specifically contemplate an owner being excluded from their property. See South Carolina Residential Landlord and Tenant Act, S.C. Code Ann. § 27-40-530 (1991) (restricting a landlord's access to property in possession of a tenant); S.C. Code Ann. § 27-40-210(6) (1991) ("'landlord' means the owner . . .").
The factual scenario you describe is similar to the facts discussed in State v. Tyndall, 336 S.C. 8, 518 S.E.2d 278 (Ct. App. 1999). In Tyndall, an adult son owned a house in which his father resided. Id. at 14, 518 S.E.2d at 281. Officers attempted to arrest Tyndall for trespass after he refused to leave the house when instructed to do so. Id. at 12-13, 518 S.E.2d at 280. Tyndall appealed claiming that he could not be subject to trespass on property he owned. Id. at 14, 518 S.E.2d at 281. As is explained by the Court of Appeals:
[O]n the date in question, the home was Tyndall's father's "dwelling house." The language of section 16-11-620 does not exclude an owner from the class of persons who may be convicted of trespass after notice. The section provides that "[a]ny person" who violates the statute may be convicted. A record owner's right to be on the property may be circumscribed if another person peaceably possesses the property. . . . Because Tyndall refused to leave his father's home after being asked to do so, the police officers acted within the scope of their power when they arrested him without a warrant for trespass after notice.
Id. at 17-18, 518 S.E.2d at 283. Thus, an individual in peaceful possession of a property may exclude even the owner of the property.
In the scenario you describe, each of the spouses has been granted exclusive use and possession of certain properties by the temporary order of the Family Court. This Office is aware of no reason why the temporary nature of that order would undermine the occupying spouse's ability to exclude "any person," including their spouse who co-owns the property but has been denied use and possession by the Family Court, from the property under Section 16-11-620.
Finally, we note that Section 16-11-620 also states, "All peace officers of the State and its subdivisions shall enforce the provisions hereof within their respective jurisdictions." S.C. Code Ann. § 16-11-620. The General Assembly appears to be expressing a strong policy preference in favor of law enforcement enforcing the rights of individuals to exclude others from property which they peacefully possess.
Conclusion
Law enforcement should, at the request of the spouse in possession of a property, issue a trespass notice to a spouse who no longer has use or possession of jointly owned property pursuant to a temporary order from a Family Court. Attempts to use or possess the property by the excluded spouse may also trigger the Family Court contempt process, but the contempt process runs in parallel to potential criminal liability, it does not replace it.
Sincerely,
Assistant Attorney General
REVIEWED AND APPROVED BY:
Robert D. Cook
Solicitor General Emeritus
Footnote: The Court noted that it was not conclusively proven that Tyndall owned the property but a factual determination on this point was irrelevant because the logic allowing owners to be excluded from a property applies, a fortiori, to nonowners. Id. at 17, 518 S.E.2d at 283.