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!