Who Gets the House in a South Carolina Divorce?

Divorce presents lots of challenges, one of which is the division of property—including the marital home. One of the things divorce clients often want to know is “Who gets the house in a divorce?” There’s no quick answer, because every family’s situation is different. What happens to the house in a divorce depends on a number of things, including whether the divorcing couple reaches an agreement and what other marital assets there are to divide.

To understand what might happen in your case, let’s talk about how divorce property division generally happens.

Basics of South Carolina Property Division

Everyone knows that property division is part of a divorce. But many people don’t realize that they have the ability to control the process and keep it out of a judge’s hands. The fact is that most divorcing couples reach a settlement regarding their property, either on their own or with the help of their attorneys or a mediator.

As a general rule, only marital property is divided in a divorce. Marital property, for the most part, is property that you or your spouse acquired after your marriage. You determine what the total amount of marital property is, including the house, bank accounts, retirement accounts, vehicles, and so on. Then you try to divide it in a way that works for both of you, usually more or less equally.

You may decide, for instance, that it makes more sense for the parent who will have the kids most of the time to keep the house so that the children can stay in a familiar environment. They will be near their friends and schools, and not have to go through the stress of moving. The other spouse would then receive an equivalent amount of other property.

Of course, it’s not always that easy. Sometimes both spouses want to keep the house after the divorce. If you and your spouse simply cannot agree on how to divide your marital assets and who gets the house in the divorce, the court will need to make that decision for you.

Equitable Division of Property in South Carolina

When a South Carolina court has to divide marital property, it does so according to the principles of “equitable distribution.” Equitable distribution means a fair division of marital property. It is not necessarily exactly equal, though in most cases it is fairly close to equal.

South Carolina has a list of factors for courts to consider in equitable distribution written into state law. When dividing marital property in South Carolina, courts must consider:

(1) the duration of the marriage;

(2) marital misconduct or fault of either or both parties;

(3) the value of the marital property, wherever located, as well as each spouse’s monetary or non-monetary contribution;

(4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;

(5) the health, both physical and emotional, of each spouse;

(6) the need of either spouse for additional training or education in order to achieve that spouse's income potential;

(7) the nonmarital property of each spouse;

(8) the existence or nonexistence of vested retirement benefits for each or either spouse;

(9) whether separate maintenance or alimony has been awarded;

(10) the desirability of awarding the family home, or the right to live there for a reasonable period, to the spouse having custody of any children;

(11) the tax consequences to the parties of dividing the property in a particular way;

(12) the existence and extent of any support obligations that either party has (from a previous marriage or otherwise)

(13) any liens on the marital property or any separate property, and any debts incurred by either or both parties during the marriage;

(14) child custody arrangements and obligations at the time of the entry of the order; and

(15) any other relevant factors.

The court gives weight to each of these factors in the proportion it deems appropriate, which is just another way of saying the court has discretion to do what it thinks is fair. So, say if one spouse had an affair that caused the breakdown of the marriage, a court might be reluctant to award the house to that spouse. Doing so might seem like unfair punishment to the spouse who was wronged by the affair.

How to Keep the House in a Divorce (and What to Do If You Can’t)

If keeping the house in a divorce is a priority for you, speak to your divorce attorney. She can explore with you whether doing so is viable and in your best interest. You may have to give up other assets to your spouse in order to keep the house. You won’t be able to keep the house and half of everything else, too.

Sometimes it’s just not realistic for either spouse to keep the house in a divorce. There may not be enough other assets in the marital estate to award to the spouse who doesn’t get the house, and the spouse who does may not be able to afford to buy out the other spouse. Or both spouses may realize that neither of them can afford to keep living in their marital home on their own. In that case, it will be necessary to sell the house.

If you know early on that you will need to sell your house, you can do so during the divorce. The proceeds of the sale can then be held in escrow pending the divorce. You and your spouse can each take your share of the equity to put toward your new home, and new life, after your divorce. Or you may wait until the divorce is final to list the house for sale, with your divorce settlement or decree specifying how funds from the sale of the house will be divided.

To learn more about property division in divorce, and what options there may be for keeping the house in a divorce, contact Brinkley Law Firm LLC to schedule a consultation.