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Equitable Distribution vs. Common Property: South Carolina’s Approach

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What Will Happen To Our Property After a Divorce?

Aside from child custody or alimony, one of the most common issues that clients question is what may happen to their property following a divorce. You may have real estate or investment properties that you are now worried about losing or losing a share of.

Many states have their own rules governing how property and other assets are to be divided. South Carolina follows an “equitable division” rule, sometimes called “separate property”. If a shorter marriage exists, several factors can contribute to how assets are separated. With a longer marriage, a reasonable expectation is that the property will follow a division that leaves each party with half.

What is a Community Property State?

If South Carolina were a “community property” state, most or all of the property acquired by the couple while they were together may be divided 50/50 between the two spouses. However, South Carolina is not a community property state.

For example, if one spouse walks away with a property valued at $180,000, the other spouse could end up with a variety of assets that equal that amount. Perhaps the two share a retirement fund or savings account with that amount. The other spouse may end up with both to offset the $180,000 property. In some states, that is how the assets are divided.

Equitable Distribution in South Carolina

Equitable distribution can be challenging, as it is determined based on several factors. The key component is whether or not the property was marital or non-marital. Who’s name is on the deed is irrelevant.

According to the South Carolina law, marital property is “real or personal property acquired during the course of the parties’ marriage through the use of marital funds or through the sale of additional marital property.” Real property includes real estate, and personal property includes items like cars, boats, or household items of value. It is important to note that shared debts between the spouses are also typically included in marital property and, therefore, will have to be divided. 

Non-marital property can include things like items inherited throughout the marriage, with an exception typically given to property or assets that the spouse who inherited it chooses to add the other spouse to the title of said item. Gifts from third parties that were given to either spouse are not typically considered marital property either.

What Factors Will The Judge Consider When Dividing Property?

Several factors are involved in determining what each spouse will end up with. Below is a list of common examples, but it is not meant to be exhaustive.

As mentioned above, the duration of the marriage will play a significant factor in the decision.

The income of each spouse and their future earning potential or expected future income. The spouse with the lower income may end up with more of the shared property.

Physical and emotional health of each spouse and how that may change as a result of the divorce

If either spouse will require additional training or education to increase their earning potential in the future, this will be reviewed.

If alimony were awarded to either party, this is included in the process.

The non-marital property of each spouse is factored in.

Any tax implications as a result of dividing the property will be included.

Child custody and associated expenses will be reviewed.

What role does the current family home play in the children’s lives, and how dividing that may look to them. The children’s best interests are prominent in the equitable property division.

Any other relevant facts the judge may deem necessary, such as vested retirement benefits, existing obligations for either spouse such as previous alimony or child support payments, and more.

What Value Do Non-Monetary Contributions Have to Marital Property?

Judges will also review the non-monetary contributions of either spouse during the marriage. This notion can mean that one spouse sacrificed furthering their career during the marriage to care for the children or the household. Or if one spouse supported the other while they similarly finished college for them to get ahead in life.

An experienced attorney can help establish what the contributions should amount to and fight for them to be accurately represented in the division of assets.

What if There Were a Prenuptial Agreement?

If a valid prenuptial agreement states that one party will receive more of the marital property than the other, this agreement takes precedence over the state laws on equitable division.

It’s essential to ensure the prenup is valid and enforceable to benefit from having one in place to protect your share of the marital property.

Your Tireless Support When You Need it the Most

We have worked with clients preparing for or going through divorce for nearly 25 years. While divorce can be trying and frustrating, it doesn’t have to be excruciating. Ensure that you are in good hands with a team that has an established reputation and focuses on family law.

We understand the divorce process well and can help prepare you financially for this new chapter of your life. With an experienced and fierce advocate by your side, we can provide ample evidence suggesting how to divide property best so you aren’t left with far less than you deserve.

Contact our office today at (864) 689-4482 to schedule your strategy session. We will discuss your situation and priorities and formulate an effective strategy that refreshes you and prepares you to take on this new chapter in your life.

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