When a couple gets divorced, courts have to make decisions so the parties can go their separate ways. Among the many tasks the court must perform, a universal one is property division, specifically South Carolina property division.
No divorcing couple should discount the guidance of a licensed attorney who works in these cases. Property division laws can be complex, no two divorce cases are identical and lawyers have the proper training/experience to tell the judge what a divorcing spouse wants or needs from the property division.
Property Division Divorce Laws in South Carolina
The purpose of South Carolina property division laws is to make sure that marital property is allocated to each spouse equitably. South Carolina marital property is divided under the considerations of South Carolina Code §20-3-620 but the trial court judge receives great discretion when converting South Carolina marital property into separate South Carolina divorce property.
South Carolina is an equitable distribution state. This means that with regard to South Carolina divorce assets, anything the spouses brought into a marriage usually will not be included in South Carolina divorce assets or South Carolina divorce property. The only property that comes into the court's distribution is that which is legally classified as property of the marriage.
What is considered Marital and Non-Marital Property?
Marital property is defined under South Carolina Code §20-3-620(A) as “all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation,” regardless of who holds title to the property.
Non-marital property is listed as exemptions to marital property under South Carolina Code §20-3-620(A). Some of these are:
- Property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse
- Property acquired by either party before the marriage
- Property excluded by written contract of the parties
- Any increase in value in non-marital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage
Under South Carolina Code §20-3-620(B), the court has no power to divide non-marital property.
Dividing Assets and Debt
After the court decides which property is available for distribution, the next step is property valuation. The final step is the allocation of marital property.
Under South Carolina Code §20-3-620(B), the court considers a number of factors in dividing assets and debt. Some of these are:
- The marriage's length
- The parties' age & health
- The parties' marital misconduct or fault
- The parties' non-marital property
- The value of marital property
Using statutory factors, judges decide how a marriage's assets should be divided. Here is a list of the most common property items and the most common allocation scheme used.
- Cash: Divided equitably among the
- Example 1: A joint savings account has $5,000. The court would most likely award a portion of the money to each spouse.
- Example 2: A joint savings account has $5,000. One spouse contributed $4,000 and the other contributed $1,000. The amount may be divided in a 50-50 split or may be more balanced if the $1,000 contributor has fewer assets than the $4,000 contributor.
- Retirement Plans: Divided based on the
duration of the marriage at the time the benefits accrued, looking at the
present value of the plan and/or survivor benefits.
- Example 1: A spouse got benefits in a retirement plan after working for 25 years and was married for 20 of those years. The ex-spouse would be entitled to a portion of the retirement plan that was acquired during the marriage.
- Example 2: A spouse has an unvested retirement plan. No division takes place until the plan is payable to the spouse who has it.
- Vehicles: Divided based on the values at
the date determined by the court. May be
sold or given to a spouse outright.
- Example 1: A car is owned by a spouse The car may be sold with the proceeds divided among the spouses or the car may be given to a spouse outright.
- Example 2: A car has a shared title. The car may be sold with the proceeds going to each spouse equally or given to a poorer spouse.
- Insurance: Determined based upon each
spouse's health, availability of alternate insurance and premium payments from
- Example 1: One spouse has covered the other under employer provided health insurance. The other spouse is in poor health and could not afford alternate health care coverage. The court may order the first spouse to continue covering that spouse for a set time period and/or award money to the ailing spouse to get new coverage.
- Example 2: One spouse has a life insurance policy where the ex-spouse is to get survivor benefits. The spouse may be required to remain on the policy or may receive a portion of the benefits.
Settling Disputes in a Divorce Case with Property and Asset Division
Under South Carolina Code § 20-3-620(C), the court's property division order is final and may not be modified unless a party goes to an appeals court. However, you may go back to court to have the order enforced if the other party is not cooperating.
The trial court's determinations will not be changed by a higher court unless the division was clearly unjust. This is extremely hard to prove.
Help From a South Carolina Property Divorce Lawyer
It can not be stressed enough that retaining a South Carolina property divorce lawyer is key to getting the fairest and most equitable result in the property division phase of a divorce. The lawyer can provide professional guidance, keep you informed of likely outcomes and help you present the best arguments and presentation to the trial judge handling the divorce.