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South Carolina Property Division
Property Distribution Laws in South Carolina
In South Carolina the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the Family Court divides the property within the Judgment of Divorce.
Equitable division, or “equitable apportionment” in South Carolina law, means that the court divides property equitably. South Carolina is dual classification state. The appreciation of separate property is separate property.
The judge decides what’s equitable, or fair, based on the complete picture of the marriage’s financial health and what each spouse needs to move forward after divorce. Equitable does not mean equal, or even half, but rather what the Family Court considers fair.
When the parties are unable to reach a settlement, the Family Court distributes the marital assets between the two parties in an equitable fashion.
Factors in Equitable Distribution
Following the Code of Laws for South Carolina - Chapter 3; 20-7-472, 20-7-473, family court considers:
All the marital property must be divided when the marriage ends, so the court needs to know which property belongs to the marriage. This includes both the marital property and the non-marital property.
Credit card debt or poor investments with marital funds during marriage may create debt that belongs to the marriage and both spouses may be held responsible for a part of it.
Financial misbehavior – for example, habitual gambling – may be a factor in the division of property.
Marital Property vs. Separate Property
Marital property is property acquired or earned during the marriage, regardless of title. Property used for the benefit of the marriage or shared with the other spouse, even if it began as separate property, may become marital property.
Generally, separate property is property that either belonged only to one spouse before marriage or was acquired after the filing for divorce. Among other things, it could include some property given only to one spouse during the marriage.
In South Carolina, separate property remains the property of the spouse who owned it before or during the marriage.
Property is either marital or separate, and it includes assets and liabilities. The most common types of property divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, dividends, and benefits. All debts must be divided as well.
Valuing and Dividing Property
Put simply, the court classifies assets and liabilities, property and debt, as marital or separate. Then it assigns a monetary value to the marital property and debt. Finally it distributes the marital assets between the two parties in equitable manner.
Once all the property is valued, the court divides it based on a number of factors, including each spouse’s monetary contributions to property (other than non-marital property) and appreciation in the value of the property, income, and the use of non-marital funds for the benefit of the marriage. Homemaking, child-care services, and other unpaid work are a non-monetary contribution.
The court looks at the quality of these contributions, not just their existence. The length of the marriage, the ages and health of each spouse, the amount of non-marital property, and any fault that may have affected marital resources - all are considered. Additional factors include each spouse’s need for additional education or training, retirement benefits, debts or liens on property, any alimony due, and tax consequences.
The Marital Home
The court is more likely to award a spouse the family home if there are children of the marriage living there most of the time.
In South Carolina, as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) are deducted from the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.
From there, couples choose one of three options to divide the equity:
Pensions and Retirement Accounts
In South Carolina vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.
Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.
In South Carolina the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:
In South Carolina if spouses share in each other’s retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, how such benefits should be paid, etc.
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