When spouses get a divorce, they have to determine how they will divide their marital property. One of the biggest assets that must be settled between the two is the marital residence.
Since the house is often the most valuable piece of property that a married couple will share, it can trigger contention. If divorce is in your future, you owe it to yourself to understand the basics of marital property laws and what might happen to your house. Then, retain an experienced Greenville, SC marital property division attorney. Turner Family Law can help.
How Is Real Property Handled In a South Carolina Divorce?
South Carolina is an equitable distribution state. This means that a divorcing spouse can ask a judge to distribute to him or her any marital property. Marital property is personal or real property that was obtained by either spouse after the date of marriage and which was held at the time the divorce action was filed.
Marital property doesn’t follow title, meaning that even if an asset was purchased with just one person’s name on it, the other spouse can seek to have it distributed to him or her in the divorce. With respect to a house, either spouse can seek it even if just one spouse’s name is on the deed.
What Options Do Divorcing Spouses Have for Dealing With Their House?
Spouses who are undergoing a divorce have numerous ways they can handle distribution of the marital residence. First, they have the option to work out an agreement for an Order of Separate Maintenance and Support, which is often done through mediation.
The judge will review the agreement to make sure it is fair, that it complies with the law, and (when it also deals with custody matters) that it is in the best interest of the children. This agreement can determine who gets the house.
Here are a few specific ways to deal with the home, which may be resolved out of court or through litigation:
Sell the house and divide the proceeds
Typically, if neither spouse wants to remain in the marital residence, the best option is to sell it and split the net proceeds. The division does not have to be 50%, but could be based on some other percentage the parties determine is fair. For instance, a spouse may accept 35% of the proceeds in exchange for more alimony.
Since both parties would be on the same page about not wanting the house, it should be fairly easy — with the help of an attorney — to draft terms of an agreement that provide various details about the sale.
Terms may include:
- The percentage division of net proceeds
- Who the realtor will be
- Whether an appraisal will be conducted
- The sales price of the home
- Which offers that come close to the sales price (for instance, within a certain percentage) will be accepted
- How repairs to the house will be done to effectuate the sale, who will be responsible for them, and how they will be paid for
- Allowing access to the house for both parties so that necessary property condition disclosures can be completed
- Whether either party gets to live in the home while it is on the market, as well as the conditions they must maintain to keep the house show-ready
One spouse keeps the home and buys out the other’s share of equity
This option is usually chosen where there is one spouse who wants or needs to keep the house in a divorce, especially to allow the spouses’ children to remain in the home. The other spouse will naturally want his or her share of the equity, and an agreement can usually be worked out to that effect.
There are various ways to buy out the spouse who is giving up the home. For instance, the spouse who stays in the home may give up claim to another asset, such as the other spouse’s retirement or a boat. Another way is for the spouse who remains in the residence to forego a claim of alimony.
What If Both Spouses Want the House?
In a situation in which both spouses want the marital residence, it is more likely that a judge will have to decide the matter as opposed to the spouses negotiating an agreement. The court will take a number of factors into account to decide who gets the house in divorce.
- The income and earning potential of both spouses
- The opportunity of both spouses to acquire future assets
- Which spouse is able to refinance the home in their sole name
- Which spouse can afford payments on the house
- Desirability of distributing the home to the spouse who has child custody
- Tax consequences to either party
- Liens and any other encumbrances on any marital property
- Evidence of marital fault, since a judge may decide it would be unfair to kick the non-adulterous spouse out of the home
If neither spouse can afford the home, the judge may order it to be sold and the net proceeds split.
What Documents About My House Do I Need to Gather for My Divorce Lawyer?
Organizing your home-related documents now is the best way to save time and legal expenses related to your divorce.
Start collecting the following:
- Most recent mortgage and HELOC statements
- HOA statements relating to fees and any unpaid assessments
- Most recent appraisal
- Copy of any comparative market analysis (CMA) or broker’s price opinion (BPO)
- Repair estimates
- The most recent property tax bill
Let Our Greenville, SC Divorce Attorney Help With Your Marital Home
The question of who gets the house in a South Carolina divorce is a significant one that will affect your financial and personal well-being long after the end of your marriage. Make sure you have dedicated legal counsel defending your best interests. Connect with Attorney J. Michael Turner, Jr. and Turner Family Law to get started today.