How to Navigate Property Division in a South Carolina Divorce: What You Need to Know

What is Property Division?

For many, one of the most important topics regarding divorce is property division. Each party may have a significantly different financial outlook moving forward after the divorce is final due to the properties being distributed between the couple.

Many states follow community property laws, such as each party dividing any property equally that was obtained by either spouse during the marriage. South Carolina follows a different standard in that courts will review all property obtained by the couple during the marriage and determine what is fair and equitable between the two.

What Factors Will Courts Consider in Property Division?

Judges will review several factors when considering what is fair and equitable with property division. Some of the most common are summarized below.

The ages of both parties at the time of the marriage and the current ages now – are either party reaching retirement age? Will they have several years left in their career following divorce?

The length of the marriage is essential to review. If parties have been together for several years, it may weigh differently to a judge than those who have been together for a short time and are seeking divorce.

Regarding both parties’ emotional and physical health, judges want to consider how the division will affect both parties moving forward. If either one of them is at a significant disadvantage due to physical or mental health issues, this will come into play.

Child custody obligations and arrangements – judges want to know which party will have primary custody or what other commitments are involved with the children, as this may affect how the primary home is distributed.

Contributions of either spouse – whether financially or otherwise, both parties likely contributed to the assets and property; this will be closely reviewed.

Was there any marital misconduct? Although this isn’t the only aspect that will be considered, if either party was proven to have contributed to marital issues through their deliberate actions, this will be considered,

It’s important to note that judges will also review how both parties contributed to preserving or elevating the home’s value during the marriage.

Martial Assets: Regardless of Title

One of the common misconceptions for those considering divorce is that if an asset is titled in one spouse’s name, it’s not up for debate during the property division phase. Generally speaking, all assets or property obtained during the life of the marriage, regardless of how it’s titled, can be considered marital property and, therefore, must be equitably divided.

Similarly, debts must also be considered. So, if there are loans or mortgages against the properties, these amounts must also be deducted from the value when determining property division.

What is Non-Marital Property?

If a spouse receives a gift or inheritance during or before the marriage, typically this asset isn’t included in the property division and is considered non-marital property.

It’s important to note, however, that if the spouse chooses to title the gift or inheritance jointly, this may change the opinion of the courts and may be perceived as a marital asset.

Other examples of non-marital property may be assets that either party obtained before marriage. Judges will typically remove vehicles, furniture, and boats from the asset division phase if either party owned them prior to the marriage.

Are Financial and Retirement Accounts Split 50/50?

No two marriages or divorces are the same, so there isn’t a set black-and-white strategy that courts will follow, nor is there a specific calculation set forth for courts to abide by, as in some states.

Many may think that each asset or property will be divided 50/50 as long as it’s marital property, such as retirement accounts or bank accounts. In many cases, the total value of these assets will be calculated, and money may be shifted around to ensure that both parties have an equitable and fair split when the divorce is final.

Future and Past Considerations in Asset Division

There are some aspects that courts need to consider that they will need to forecast or derive from past information.

For example, if one spouse has prior obligations such as child support from a previous marriage, these amounts must be considered during the divorce.

Suppose a spouse requires time and financial assistance to better themselves through training or schooling so they can achieve a livable financial status following divorce. For example, one of the spouses may have stayed home with children rather than furthering their education or career. In that case, they may receive more assets or property during the division, as they will need to rely on this to further their education or training.

Similarly, will either spouse be awarded alimony? Recurring payments will affect both parties’ financial outlooks and must be factored in. Does either party receive alimony from a prior marriage? Courts will need to know these facts as well.

Tax consequences for either party must be considered as well. With the division of assets likely comes tax implications that both parties will be responsible for once the divorce is finalized. Courts will need to consider this aspect, too.

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Contact our office at (864) 689-4482 to schedule your strategy session and learn more about why our clients continue to experience positive outcomes following a compassionate and competent client/attorney relationship with our firm.