How is Property Divided during a South Carolina Divorce?

When a couple gets divorced, the division of property can be one of the most contentious issues that needs to be resolved. Oftentimes, money and finances are major reasons for the divorce in the first place, and it can be very difficult to reach a peaceable and workable agreement between the spouses on how to divide the property. When this is the case, the court makes these decisions.

South Carolina is not a community property state, which means that property is not automatically divided 50/50 between the spouses. The Palmetto State divides property in a divorce based on equitable distribution laws. This means that marital property is to be divided in a “fair and equitable” way. In some cases, it could be 50/50, but in other cases, it might be more practical to allow one spouse to keep a little bit more of the marital estate.

There are several factors that a court looks at when dividing marital property:

  • The duration of the marriage.
  • The ages and health conditions of each spouse.
  • The value of the marital estate.
  • Any history of marital misconduct on the part of either spouse.
  • The contributions of each spouse to the acquisition, preservation, and appreciation of marital property (including the contributions of a stay-at-home spouse).
  • The incomes and earning capacities of each spouse.
  • Child custody, child support, and alimony issues.
  • The tax implications of the proposed property division.
  • Any debts or liens on the marital estate.
  • Any legally valid prenuptial or postnuptial agreement that provides specific direction on how certain property is to be divided.
  • Any other factors that the court deems relevant.

What is Marital Property?

One thing that can make it difficult for spouses to agree on how to divide the marital estate is when they are not on the same page about what is actually in it. Only marital property is part of the equitable distribution, and non-marital property is excluded.

In general, marital property is property that was acquired or earned during the marriage, even if it is only in one spouse’s name. For example, if one of the spouses bought a vehicle while they were married and only put their name on the title, that vehicle still belongs to the marital estate. Some property that was received during the marriage may be non-marital, however. Examples include gifts or inheritance that went to just one of the spouses.

Other than exceptions like those mentioned above, non-marital property is generally only property that belonged to one of the spouses before the marriage. But this is not always as simple and straightforward as it seems.

For example, you might have a retirement account that you started when you were single, but the value of it increased significantly because of contributions and appreciation that happened while you were married. In a case like this, part of the account might be deemed marital, and part of it might be deemed non-marital, but it might take some effort to determine what’s what. Or the court might just decide to call it either all marital or all nonmarital if most of the assets in the account belong to one or the other.

Co-mingled funds are another issue that can make things confusing. For example, maybe you had an individual bank account that you brought into the marriage with a balance of $50,000 in it. Then you used that money to make a down payment on a house that you bought jointly with your spouse. Are you entitled to an additional $50,000 of equity in the house because of that contribution? Not likely, because now the money you brought into the marriage is gone and only the joint asset remains.

Reaching a Mutual Agreement on Property Division

As you can see, dividing marital property can be a more complex process than some divorcing spouses might realize. For this reason, it is most often in the best interests of both spouses to have their attorneys negotiate a settlement that works for everyone.

You and your spouse understand far better than the court what each asset and piece of property means to you, so it is much better to work it out among yourselves rather than rolling the dice on what the court might do. This of course requires a willingness to work cooperatively and to compromise on some things. If you and your spouse are willing to do that, then dividing the marital estate can be a less costly and less stressful process.

Contact a Skilled and Knowledgeable South Carolina Family Law Attorney

If you are considering a divorce in South Carolina, the Nowell Law Firm is here to help. We work closely with our clients, and we always try to work out a settlement as long as it is in keeping with our clients’ best interests. If your spouse is unwilling to be reasonable, however, then we are ready and able to aggressively advocate for your rights and interests in court.

To schedule a consultation, message us online or contact our Spartanburg office today at (864) 469-2481. We look forward to serving you!

 

 

How Will the Coronavirus Affect Family Legal Matters?

Everyone is dealing with the effects of the COVID-19 pandemic. Countless businesses have had to close their doors, and millions of Americans have suddenly found themselves out of a job. Most of the country is under lockdown until the virus passes, the children are doing distance learning, and a lot of people have moved their offices to their homes.

The coronavirus pandemic is sure to affect every area of our society, and particularly families. Families will be impacted in numerous ways, and this includes legal proceedings that have been filed in the family courts, or that were about to be filed, as well as ongoing settlement agreements from prior proceedings.

Divorce

With the South Carolina courts closed for everything except emergency hearings, the most immediate effect will be a delay in the divorce proceeding. Depending on how long things are shut down, a newly filed divorce could be delayed for several months. While waiting, divorcing spouses can use this time to get better prepared. Make sure you have all of the documents that will be needed for the discovery process and discuss any other issues with your attorney that have not already been covered.

The delay might also present an opportunity to settle some of the major sticking points like parenting plans and property division without the involvement of the courts. This could be accomplished through an alternative process such as arbitration, mediation, or negotiation, all of which can be done remotely through phone or videoconferencing.

As for the future, many experts expect a rise in divorces resulting from the coronavirus shutdown. Couples being isolated for an extended period of time when they are not used to spending that much time together as well as the stress of tighter finances could trigger a lot of couples that may have already been having marital problems to call it quits.

On the other hand, Psychology Today cautions that this event is unprecedented, and we don’t really know what the world will look like when it is all over. Divorces could spike, but then again, we could be looking at another baby boom. Only time will tell.

Child Custody/Visitation

For many parents who are already separated or divorced, COVID-19 has been very disruptive to their parenting plans. The kids are home all day, and some parents are home more after having lost their jobs or started working remotely. For other parents, the coronavirus means working long hours and lots of overtime. This is particularly true if they are front-line workers such as hospital staff, truck drivers, and grocery store workers.

On top of the scheduling issues, there are some families in which the parents do not see the situation the same way. For example, one parent might want to keep the kids at home in keeping with social distancing guidelines, while the other prefers to take them out more because they do not think COVID-19 is all that dangerous.

Parents that suddenly find themselves with custody and visitation schedules that no longer make sense should try to work out a temporary schedule adjustment on their own. If necessary, they may want to get their lawyers involved to negotiate the new schedule on their behalf or at the very least, draw up a temporary agreement to get them through this situation.

Unfortunately, there will be some families in which reaching an agreement on their own is not possible. In such cases, they can petition the court for an emergency proceeding in order to protect the safety and well-being of their children.

Spousal Support/Child Support

We know that the shutdown which has been triggered by the COVID-19 crisis will be devastating financially to a lot of families. As a result, many parents who are paying child support and/or spousal support may see a significant drop in income or even lose their job altogether. In South Carolina, support payments can be modified if there is a substantial change in circumstances, and a major change in income (either negative or positive) could certainly be a basis to petition the court for a modification.

This, by the way, could apply to either the paying or receiving spouse. So if, for example, the receiving spouse lost his/her part-time job because of the coronavirus pandemic and the paying spouse’s income did not change, then the receiving spouse may be able to petition for a higher support payment.

Whatever the situation, it is not easy to succeed with a petition for modification. If you are considering going this route, be sure to work with a skilled and knowledgeable family law attorney to help ensure that your petition is prepared properly.

The Nowell Law Firm is Here to Help

As we work our way through the COVID-19 crisis and its aftermath, we are all in this together. At the Nowell Law Firm, we are still open and available to help South Carolinians with family legal matters and other legal issues you may have. We are taking all the precautions and practicing social distancing, and we are doing most of our work remotely these days. Still, we are well equipped to help you with your legal issue.

For a consultation with a member of our legal team, message us online or call our office today at (864) 469-2481. We look forward to serving you!