Division of Property in a Divorce
Determining how property will be divided is one of the most important issues to resolve when couples go through a divorce. When couples can agree on a plan for dividing property, the process can be completed fairly efficiently. However, if an agreement cannot be reached, the court will have to divide the property.
The first step in dividing property is for the divorcing couple to attempt to come to an agreement (called a marital settlement agreement). This is a written document that expresses to the court how the couple would like to divide the property. While the agreement must be approved, the court usually adheres to the agreed upon wishes of the couple.
In the event the divorcing couple cannot reach an agreement, the court will have to decide how to divide the property. South Carolina is an equitable apportionment of marital property state (also called equitable division), which means property is divided in a fair manner. Importantly, the division does not need to be equal to be equitable.
The first step for the court is determining what property is marital as opposed to non-marital. Marital property is all the property acquired during the marriage, regardless of what title to the property states. All marital property must be divided between the spouses.
Non-marital property is property that belonged to either spouse prior to the marriage. However, non-marital property also can include property that was given to one spouse specifically during the marriage, such as a gift or inheritance. But, gifts given between spouses are considered marital property subject to division upon divorce. Non-marital property is not divided between the parties.
In addition to assets, marital debt is also divided. This means, for example, that if one spouse accumulated credit card debt during the marriage, the debt belongs to the marriage and the other spouse may be held responsible for part of it. However, the court will consider financial misbehavior in determining whether or how debt should be divided.
There are several factors that the court looks to in order to decide how to divide marital property, including, but not limited to:
Length of the marriage
Value of the marital property
Marital misconduct or fault of each spouse
Ages and health of each spouse;
Income and earning potential of each spouse
Amount of non-marital property
Potential tax consequences
Whether vested retirement benefits existNeed for additional training or education of each spouse
The court will also consider monetary and nonmonetary contributions to the marriage. Monetary contributions include all non-marital property and appreciation in value of that property, income, and the use of non-marital funds that benefited the marriage. Non-monetary contributions include taking care of the house, children, or other unpaid work.
Family Law Attorneys
If you would like more information about the division of property or any other topic related to divorce, contact an experienced South Carolina family law attorney today. At the Surasky Law Firm, we understand the difficult nature of the process of divorce and we look forward to discussing how we can help.