When a couple divorces, any assets or property acquired during the marriage have to be divided. States do this in two main ways, community property and equitable distribution. South Carolina’s marital property laws are, like the majority of states, equitable distribution laws.
Spouses in South Carolina have a right to all marital property. Marital property is all the real and personal property acquired by the parties during the marriage and owned at the date of filing for divorce. It doesn’t matter if the family home bought during the marriage in only one spouse’s name; the other spouse also has a right to it.
However, the court can’t divide non-marital property. Non-marital property is property that was:
- Acquired by a spouse before the marriage;
- Acquired by a spouse through inheritance or gift to the spouse alone during the marriage; or
- Excluded from marital property by a written contract or prenuptial agreement. If excluded by a prenup, it’s most likely to be considered fair and equitable as long as voluntarily signed by both parties while represented by separate counsel, and with a full financial disclosure to each other on income, debts, and assets, as required by family court rules.
The factors South Carolina judges look at to determine the distribution of marital property are:
- The length of the marriage
- The ages of the parties at the time of marriage and divorce or separation
- Marital misconduct or fault of either or both spouses (adultery, abuse, etc.)
- Value of the marital property
- The contribution of each spouse to the buying, preserving, or appreciation in value of the marital property (including being a stay-at-home spouse)
- Income of each spouse and the potential earnings for each spouse
- The physical and emotional health of each spouse
- The need for training or education of either or both spouses to increase the person’s earning potential
- The non-marital property of each spouse (for example, a large inheritance from deceased parents)
- Whether each spouse has vested retirement benefits
- Child custody arrangements and obligations
- Whether a spouse was awarded maintenance or alimony
- The possibility of awarding the family home as part of the equitable distribution or the right to live in it for a reasonable period while having custody of the children
- The tax consequences of a particular form of equitable apportionment
- Any child support or alimony obligations from a prior marriage
- Any liens or debt on the marital property or other debts (including credit cards used during marriage), which must also be equitably divided
- Other relevant factors that the court may elaborate on in the order
The court can order a former spouse to sign and deliver any deed, sale, mortgage change, or anything else necessary to carry out the equitable apportionment that was ordered. Transfers of stock, public or private sales of assets, etc. can all be ordered, if necessary.
The following table explains more of South Carolina’s marital property laws.
||South Carolina Code Title 20: Domestic Relations, Chapter 3: Divorce, Article 5: Equitable Apportionment of Marital Property
|Community Property Recognized?
||No, South Carolina isn’t a community property state. Marital property is divided by the court in an equitable manner as described above.
|Dower and Curtesy
||Dower and curtesy are common law legal concepts that have generally been abolished in the U.S. today. Dower is a wife's life estate in her husband’s real property upon his death. Curtesy is the husband’s interest in his wife’s real property (solely owned or inherited) upon her death, if they bore a child who could inherit the property.
Dower hasn’t been available in South Carolina since the 1940s. Also, in 1985 dower and curtesy tenancy interests in property were abolished.
If you’re divorcing or planning to divorce in South Carolina, you should speak with an experienced local divorce lawyer about your rights to marital property. By agreeing to a division of property through negotiating with your spouse or during a mediation, you may be unnecessarily waiving your rights to some property or assets. However, if you are both happy with the result, there’s no need to prolong the divorce proceeding.
Note: As state laws change constantly, it’s important to confirm the accuracy of the laws you’re researching by either conducting your own research or contacting a knowledgeable attorney.
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Getting Divorced in South Carolina? An Attorney Can Help
Weddings can be an exciting time. Going through a divorce or separation is not so exciting, and can be both emotionally -- and financially -- draining. In fact, divorces can be particularly difficult when you are trying to divide your marital property; and it's not always easy to determine who owns what. Need help? Get in touch with a South Carolina divorce attorney today.