Are you getting a divorce in sc? Property division in divorce in sc (also referred to as “equitable apportionment”) in South Carolina is how a couple’s marital estate is divided. Equitable distribution of marital property “is based on a recognition that marriage is, among other things, an economic partnership.” Mallett v. Mallett, 473 S.E.2d 804 (S.C. Ct. App. 1996) .
S.C. Code Ann. Section 20-3-620(A) defines marital property as all real and personal property acquired by the couples during the marriage and owned by them on the date the marital litigation is filed. The marital estate includes real property (like real estate) and personal property (like pensions, retirement accounts, other financial accounts, household furnishings, cars, boats, and motorcycles), as well as the parties’ marital debts.
Because splitting property in divorce aka division of marital property happens every day and in every divorce, most people believe they know how it works. A FAQ includes “is sc a community property state?” Unfortunately, there are common myths about property division we have to correct regularly. Read on to be better informed about property division for your South Carolina divorce.
Many people going through divorce believe if an asset, like their home, is in their sole name, then it is not marital property. The truth is all assets acquired between the date of marriage and the date of the marital litigation being filed are usually included in the marital estate, regardless of title!
Sometimes there are questions about whether premarital or separate property has been transmuted into marital property. In those circumstances, title may have a greater impact on what is included in the marital estate.
But generally, title is a practical problem to solve once a full property division has been decided. For example, a car titled in one spouse’s name may be kept by the other spouse as part of how the property division works out. In that situation, the title will have to be transferred between the former spouses.
Many people going through a divorce prioritize identifying the marital assets but ignore the marital debts. That’s not surprising – who wants to be reminded of their liabilities?
An example of this happens when a spouse believes they are entitled to receive half the value of the marital home, but they don’t account for the mortgage balance.
Ultimately, the Family Court must equitably divide the marital assets and debts. Forgetting how debts affect property division can cause you to have unrealistic expectations, which can make cases harder to resolve.
Often, a person going through divorce will make a list of their marital assets and expect that each spouse will walk away with one-half of the value of each asset.
For example, if a husband has a 401k with $50,000 in it and the wife has a 401k with $25,000 in it, they might expect to each get a portion of the other’s account. But what is more likely is for the wife to keep her 401k, and for $12,500 of the husband’s 401k to be transferred to her as well. With this method, each spouse receives $37,500 in retirement funds, and there are fewer transfers between accounts overall.
Instead of thinking you will divide your property asset-by-asset, understand the value of all assets (and debts!) will be calculated, and then each spouse will receive a percentage of the total. You might receive 100% of some assets and 0% of others, depending on what is best for your case. This is what marital debt division in a divorce comes down to.
Almost everyone believes the marital estate will be divided equally between spouses, but that’s not always true. There is no requirement for each spouse to receive an equal share of the marital estate. Learn more about divorce laws in sc in the following section:
S.C. Code Ann. Section 63-3-620(B) details the 15 factors the Family Court is required to consider for equitable division of property in divorce. Those factors are:
All of these factors mean there is no formula to divide property for use in every divorce. However, there is one factor the Family Court tends to consider more heavily than others: the length of the marriage.
In Doe v. Doe, 370 S.C. 206 (Ct. App. 2006) , the South Carolina Court of Appeals held: “ While there is certainly no recognized presumption in favor of a fifty-fifty division, we approve equal division as an appropriate starting point for a family court judge attempting to divide an estate of a long-term marriage.”
In 2014, the South Carolina Supreme Court embraced a presumption of a fifty-fifty division in long-term marriages in Crossland v. Crossland, 408 S.C. 443 (2014) .
It is important to understand: because no two marriages are exactly alike, no two divorces will be exactly alike. The circumstances of every marriage, and how the statutory factors apply, affect every property distribution differently. There are so many things in play, including the likes of a separation agreement, rental property and properties acquired after the separation agreement. Keep reading to learn more about south carolina divorce settlements.
It is often harder, and more complicated than expected, to separate a couple’s assets and debts. Even for the most straightforward uncontested divorces, it can take time to identify the marital estate and determine its value as we can predict what the other party does, or what the other party has purchased.
Sometimes, real estate must be sold in a tough market or one party cannot immediately qualify to refinance a mortgage. In other cases, the couple may own a business, and its value has to be determined by a forensic accountant .
It can take years – sometimes a lifetime – for a couple to accrue their assets, and untangling the spouses from each other may also take time.
Property division is often more complicated than people expect, especially when considering financial obligations and the implications of a premarital agreement under the Uniform Premarital Agreement Act. So it can be very important to hire a divorce lawyer in South Carolina who can assist with dividing real estate in a divorce and identify the facts most relevant for your property division in your divorce process, including assessing South Carolina non-marital property and the impact of any existing prenuptial agreements.
The attorneys of Dell Family Law, P.C. can assist you through the complexities of divorce property settlements, ensuring a fair and equitable division that respects any prenuptial agreements and the unique financial circumstances of your case, helping you divide your marital property in a way that makes sense for your family.
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