What is the Division of Assets in South Carolina?
Marriage is more than an emotional bond—it is also an economic union. Spouses can acquire quite a bit of property while married, which needs to be divided before each can go their separate way. At Surasky Law Firm, we help our clients understand the law regarding the division of marital assets, and we can talk through which assets to request. Contact our firm if you have questions about division of assets or divorce more generally.
Identifying Marital Property
What is marital property? Generally speaking, any property you purchase while married is considered marital and must be divided. Some of the most common examples of marital property include:
· Wages, bonuses, and commissions
· Retirement accounts (401(k), 403(b), IRA, Roth IRA, SIMPLE, etc.)
· Real estate, like a home or vacation property
· Motor vehicles
· Business interests, including small businesses
· Digital assets, like e-Books
It doesn’t matter whose name is on the title to a piece of property. For example, your husband might have bought and titled a car in his name. If he was married when he got the car, it is marital property—even if he uses his wages to pay the car loan.
Some assets might be partly marital and partly separate. For example, you could have opened an IRA while single but continue contributing to it while married. Any premarital contribution will be considered your separate property, and contributions made while married are marital property.
Separate property is not marital. You can typically leave the marriage with your separate property. The following is usually considered separate property:
· Any asset you fully paid for while single
· Any gift you receive individually while married (unless the gift was given to you by your spouse)
· Any inheritance you receive individually while married
Sometimes, people can convert separate property to marital property. For example, you might inherit a home from your mother but then put it in both spouses’ names. That could convert the asset into marital property.
Do You Have an Agreement to Divide Property?
Spouses have the power to divide their marital assets themselves. You could have done it in a prenuptial agreement signed before marriage. Many people use this type of agreement to characterize property as separate or marital. For example, a wife might have started a small business while single. In a prenuptial agreement, her future husband agrees that the small business will always remain her separate property, even if she makes investments in it and grows the business while married.
You can also reach a property settlement agreement in anticipation of divorce. Our law firm has helped negotiate these types of agreements, which are beneficial. Why let a judge decide how to divide property when you can make that decision working with your spouse?
How Judges Divide Property: Equitable Division
In some states, the law requires a 50/50 division of marital property. That’s not the law in South Carolina. Instead, a judge will try to divide it fairly, which is called “equitable” division.
Judges look at many factors spelled out in our statutory law to determine fairness:
· The duration of the marriage
· Each spouse’s age when married and at divorce
· Marital misconduct that contributed to the breakup of your marriage or the wasting of assets
· How much each spouse contributed to the purchase or upkeep of property
· Each spouse’s income
· Each spouse’s physical and mental health
· Any alimony
· Each spouse’s separate property
· Whether it is desirable to leave the home to the parent with child custody
Since no one factor controls, an attorney can make a big difference in making your case to the judge. We can emphasize factors that work in your favor while minimizing those that cut against you.
Who Gets the Dog?
As mentioned above, pets are considered a married couple’s property, so you will need to decide who leaves the marriage with your pets. Judges in South Carolina will not order custody and visitation for an animal. However, a judge will look at who primarily took care of your pets and was responsible for medical care and feeding when dividing assets.
The question of who leaves with a pet can become emotional. Helpfully, you can reach a voluntary agreement with your spouse for each of you to spend time with the dog. But this won’t be a court order like the one you get for minor children.
Should You Ask for the House?
One assumption many people have is that they want the house when they divorce. For many people, the house is their largest asset and has tremendous emotional value. They don’t want to move. But we always encourage clients to consider whether asking for the house is the right choice given all the circumstances.
Some assets require more maintenance than others. You can let an IRA sit and grow with very little work on your part. By contrast, if you get the home, you will probably be responsible for yard maintenance, a new roof, a new boiler, and other expenses as the years roll by. Unless you quickly turn around and sell the home, you could pay tens of thousands of dollars to maintain the property.
Division of Assets
The actual division of the marital estate can get complicated, and an attorney can help. For example, imagine a judge divides a retirement account. This will require withdrawing a portion of the funds and transferring them to an account in the other spouse’s name. Unfortunately, early withdrawals are penalized. You will need a Qualified Domestic Relations Order (QDRO) to present to the plan administrator to facilitate the division.
Physical assets are also hard to divide. If your only large asset is your house, then you might have to sell it so that you can easily divide the equity, or one spouse might need to buy out the other’s interest.
Leave the Marriage with the Property You Deserve
Please contact Surasky Law to speak with our Aiken, SC divorce lawyer in a free consultation. We can negotiate a fair division or property or advocate on your behalf to a judge.