If you or someone you love is facing the prospect of a divorce, you probably have a lot of questions. You are likely wondering what will happen to all of the “stuff” that has been accumulated during the marriage. In most cases, the parties come to an agreement that negates the need for a court to decide who gets what. But in order to reach a fair agreement, it is important to understand the rules the court would follow if the parties cannot agree.
Marital vs. Nonmarital Property
South Carolina’s divorce statute provides for an equitable distribution of marital assets and liabilities. Not everything that belongs to the spouses is legally considered marital property, and the judge has no jurisdiction to divide nonmarital property. Therefore, the first step in reaching an equitable distribution is to divide the parties’ assets and liabilities into marital and nonmarital property.
What Is Considered to Be Marital Property?
Broadly, the statute defines marital property as all real and personal property that the parties acquired during the marriage and owned as of the date of the divorce filing. Marital property includes not only houses and cars, but also, for example, bank accounts, retirement and pension plans, 401ks, IRAs, investment accounts, and insurance plans. For purposes of determining what is included in marital property, it does not matter in whose name an item is held. Gifts between spouses are also considered marital property. If, for example, a wife gives her husband a car, and the car is held in the husband’s name, that car is still considered marital property.
Nonmarital Property in South Carolina
Nonmarital property (also known as separate property) includes any property that each spouse owned individually before the marriage. It also includes gifts and inheritances given to one spouse during the marriage. Any property excluded from the marital estate by a valid written contract between the parties (that is, a prenuptial agreement) is also considered separate property.
Note, however, that there are ways in which separate property can become marital property. If marital and nonmarital property are commingled such that they can no longer be distinguished, the property that was once separate will be included in the marital property. For instance, if one spouse received a cash inheritance that was deposited in a joint bank account, the inheritance will be subject to equitable distribution just like the remainder of that account. Additionally, if the parties show a clear intent to treat separate property as marital property, that is how it will be treated. To illustrate, think of a house that one party owned before the marriage, but that served as the marital home, with both parties contributing to the mortgage while married.
Equitable Distribution Under South Carolina Law
Keep in mind that an equitable distribution does not mean an equal division. Although the South Carolina Court of Appeals stated in Doe v. Doe, 370 SC 206, 634 S.E.2d 51 (Ct. App. 2006), that an equal division is presumed to be the starting point for dividing assets from a long term marriage, other factors may dictate a deviation from strict equality. Section 20-3-620 of the state’s divorce statute sets out fifteen factors for a court to consider in making its decision. Some of these factors are:
- The marriage’s length, together with the parties’ ages at the time of marriage and divorce;
- Marital misconduct or fault (although courts have held that fault cannot justify a severe penalty);
- The marital property’s value;
- The value of any nonmarital property;
- Each spouse’s income and earning potential;
- Whether separate maintenance or alimony has been awarded;
- Child custody arrangements and obligations; and
- The desirability of awarding the family home to the spouse having custody of any children.
Contact a Greenville Family Lawyer
In most cases, it is better (and cheaper) for divorcing spouses to negotiate an agreement regarding property division than it is to have the court decide. If you or your spouse are contemplating a divorce, your best course of action is to have an experienced family lawyer on your side. Robert Clark is a Greenville Family Law attorney with both the knowledge and compassion to guide you through this difficult time whatever issues may arise. Contact us for a consultation today.