Although South Carolina has one of the lowest divorce rates in the nation (with 2.4 divorces per 1,000 people), the number of divorces is on the rise. Nobody enters marriage thinking that the union may one day fall apart, but we all know that there are no guarantees in life. While some challenges can be faced together, others may leave a marriage in pieces, with the fragments too broken to be salvaged.
South Carolina divorce laws on property division are complex, requiring that marital assets and debts be identified. The court examines various factors in determining fair distribution of assets, with commingled property taking more time to identify and divide. If you are contemplating divorce, the South Carolina divorce lawyers at Turner Family Law are available to protect your future interests.
Is South Carolina a Community Property State?
Property is divided into two main groups: separate and marital property. Separate property (also known as nonmarital property) is considered any property that is acquired prior to a marriage or after separation. In contrast, marital property is any property acquired during the marriage. A major exception to this rule is gifts or inheritances, which remain the property of the individual even when received during the marriage.
Unlike community property states, which evenly split assets acquired during a couple’s marriage upon divorce, South Carolina is an equitable distribution state. Equitable distribution requires the fair distribution of assets before the termination of the marriage can be final. Equitable does not necessarily mean that the assets will be divided evenly, but it means that they will be divided in the fairest way possible. There is no hard and fast method of determining the reasonable division of assets, but rather a process that is left up to a judge’s discretion.
Factors in Determining Equitable Distribution of Marital Property
In dividing marital property in South Carolina, the courts examine the following 15 factors:
- The length of the marriage
- Any evidence of marital misconduct
- The value of marital property (in-state and out-of-state) and either spouse’s contribution to the acquisition, appreciation, or preservation of the marital property, including the contribution of a spouse as a homemaker
- The income of each spouse and each spouse’s earning potential
- The physical and emotional health of each spouse
- Each spouse’s need for additional training or education to increase potential income
- If either spouse has nonmarital property
- If either spouse has retirement accounts, and the value of each
- Whether alimony has been awarded
- How the spouses’ primary residence (family home) will be allocated
- The tax implications of any distributed property
- If either party has support obligations from a previous marriage (including alimony or child support)
- If there are any liens or debts on any marital property
- The status of any child custody arrangements at the time of the order
- Any other factors that the court deems relevant
Determining What is Marital Property in South Carolina
While any marital assets or debts are subject to equitable distribution between a divorcing couple, you may be wondering what qualifies as marital property. Determining what is marital property in South Carolina involves examining how the funds are being treated, including when the property was acquired during the marriage, the source of the funds, how funds are titled, and if any prenuptial or postnuptial agreements are in place.
The process of retitling funds is known as transmutation. Transmutation may involve titling separate property as marital property, or vice versa. Transmutation can occur through a person’s actions or agreement. Examples of transmutation include using separate property as marital property (such as using marital funds to pay for a business that you own by yourself), retitling assets jointly, and commingling assets (discussed below). Be aware that separate property will be considered marital property even if the assets are retitled to joint ownership prior to getting married.
Challenges of Commingled Property During Divorce
A married couple may combine separate and marital assets, referred to as commingled property. An example of this occurs if one spouse places inherited funds in a joint account with their spouse, using the funds to pay the utility bills each month. Through transmutation, the inheritance now becomes a shared asset, subject to the laws of equitable distribution.
While drafting a postnuptial agreement that designates your exclusive ownership of the money can protect your interests, keeping the money in a separate account is always the wisest choice. By keeping funds separate, you eliminate the confusion of tracking the source of the funds.
Guidance During a Chaotic Time
South Carolina divorce laws on property division are not based on a single formula, but rather on criteria that the court takes into consideration. The court inspects each situation on a case-by-case basis, giving different weight to certain factors as it sees appropriate. A South Carolina divorce attorney can assess your situation to determine how the court will likely divide assets. Additionally, we will assist you in locating financial documentation to show the nature of separate property.
Considering Divorce? Reach Out to Our South Carolina Divorce Lawyers Today
Deciding to get a divorce is often a difficult decision, plagued with regret and overwhelming sadness. Nobody needs to have added financial stress. There is no denying that the process can be exhausting, but you cannot rely on your spouse to protect your interests. The legal team at Turner Family Law knows that you have a lot on your plate, which is why we are committed to being your legal advocate.
Our South Carolina divorce attorneys are prepared to safeguard your financial rights, fighting for what is rightfully owed to you. We can be reached online or by phone to arrange a consultation to discuss your matter.
