A Guide to Dividing Marital Property in Divorce

Divorce isn’t funny, especially if you’re going through it. But when people do make jokes about divorce, they tend to be along the lines of one spouse taking the other for all they are worth. No wonder people approaching divorce wonder if they are going to get out of the marriage with little more than the shirt on their back!

Despite all the bleak humor, that’s not how dividing marital property in divorce works. All 50 states have laws about property division in divorce, and they usually result in a nearly equal division of marital property.

There are two types of divorce property division laws. Which type applies to you depends on which state you live in. A minority of states are “community property” states. Almost all property acquired during the marriage is owned equally by the “community” of the two spouses, and divided fifty-fifty on divorce. Most states, including South Carolina, are “equitable distribution” states.

In equitable distribution states marital property is divided in a way that is fair and equitable under all the circumstances. Let’s take a look at just what that means.

Understanding Marital Property in South Carolina

First things first: let’s unpack the phrase “marital property.” What assets are included in divorce? Getting divorced does not mean that you have to divide all your property with your spouse. You divide marital property which includes almost everything that either spouse acquired during the marriage. It doesn’t matter who earned or received it; if it was acquired during the marriage, it is marital property. Assets that either of you owned or acquired before getting married are non-marital (also called “separate”) property. Your spouse (probably) cannot claim those in the divorce.

Why “probably?” Because assets that started out as non-marital property can become marital property through the process of commingling. Essentially, if you throw non-marital assets together with marital assets, it becomes difficult to untangle them later. A common example is a spouse who comes to the marriage with $20,000 in a bank account, and deposits those funds in the couple’s joint bank account. On divorce, a judge will not credit that spouse with the $20,000, because it was commingled with marital funds.

Other property that is considered non-marital are inheritances or gifts received by one spouse alone. However, gifts to both spouses or gifts from one spouse to the other are considered marital property in South Carolina. If you are planning ahead, you can also use a prenuptial agreement to specifically exclude some assets from being considered marital property in a divorce.

How Does Equitable Distribution Work in South Carolina?

If a judge is deciding how to divide your marital property, he or she will take into account several factors in deciding what is fair and equitable:

• The length of your marriage;
• How old you and your spouse were when you got married, and how old you will be when you divorce;
• Fault on the part of either spouse during the marriage, such as adultery or gambling away marital assets;
• How much the marital property is worth;
• How much each spouse contributed to a given asset;
• Each spouse’s current income and potential income in the future;
• Each spouse’s health;
• How much non-marital property each spouse owns;
• Whether either or both spouses have retirement benefits;
• Child custody and child support in the current divorce;
• Whether alimony has been awarded in the current divorce;
• Child support or alimony from a previous marriage;
• The tax consequences of dividing certain property.

Although equitable division of marital property need not be exactly fifty-fifty, it usually does end up being pretty close to equal. Splitting debt in divorce is also done by equitable distribution.

If you are feeling uneasy about the prospect of a judge deciding which assets you get to keep and which will go to your spouse, there’s good news: if you and your spouse can agree on how to divide your marital property, the judge in your case won’t have to. For most people, this is a better outcome, because they retain control over their divorce property settlement. So long as you and your spouse agree to the division of property, and the court doesn’t find it inequitable, you can divide your property as you wish.

If you are dealing with a difficult spouse, or you and your spouse just can’t agree on how to divide your assets, your attorneys may be able to help you negotiate. Alternative dispute resolution processes like mediation or Collaborative Divorce can also make the process easier.

No matter how you decide to divide your assets, you should always consult with an experienced South Carolina family law attorney before signing a settlement agreement. An asset division may look roughly fair at first glance, but some assets may increase in value, while others depreciate; some assets may carry a tax burden, others a tax benefit. Your attorney will help you ensure that what looks equitable on paper will be fair in practice, too.

If you have other questions about property division in a South Carolina divorce, please contact Brinkley Law Firm to schedule a consultation.