South Carolina divorce can be a lengthy procedure and the single most important factor in the process is the division of property. 

South Carolina uses “equitable distribution” which means that marital property and debts will be divided more or less equally but not necessarily half and half. 

It is important to learn how property division is done so that everyone is satisfied with what has been given to him or her and that it does not violate the laws of the state. 

Therefore, this guide helps you understand the rules concerning the division of properties so that you can overcome this difficult aspect of divorce and secure your financial status.

Overview of Property Division in South Carolina

In South Carolina, the distribution of marital properties during the process of divorce is based on the concept of equitable division under the code section 20-3-10 which means fair but not necessarily equal division of the marital property. 

This approach is in contrast with the community personal property states in which the properties are divided equally between spouses. However, in South Carolina, the courts are capable of taking into consideration several factors to consider what is equitable depending on the circumstances of the case.

Equitable distribution means that the court wants to come up with a fair way of dividing the property, considering factors like the duration of the marriage, the contribution of each spouse to the marriage and household, their financial situations, and others. 

The idea is not to divide everything equally, but to divide the property fairly for both of the partners, and it may so happen that one partner gets more share of a particular property.

Since South Carolina is not a community property state, the splitting of the property is more complex hence it is important for couples planning to divorce to learn how this system operates in order to protect themselves.

What is considered marital property?

Marital property also known as community property includes all the assets and liabilities that the couple accumulated during their marriage. 

In particular, marital property is divided as per the provisions of the South Carolina law in the event of a divorce. This means that, in case no prenuptial agreement was signed, all properties acquired during the marriage are presumed to be marital properties and must be split equally.

Examples of Marital Property

Marital property typically includes:

Homes

Property bought or acquired in the course of the marriage regardless of the title being in the name of either spouse.

Retirement Accounts

Assets that were earned during the time of marriage include pensions, 401(k)s, and other retirement savings.

Businesses

A business that is created or developed during the marriage is likely to be divided.

Income and Investments

Money earned during the course of the marriage, bonuses, stock options, or investments made during the marriage.

Other Jointly Acquired Assets

Personal use items such as cars, furniture, and other items are acquired when the couple is married.

The Differences in Classification of Marital and Non-Marital Property

Separate property or non-marital property refers to property that is acquired prior to the marriage, through inheritance or gifts received by one spouse. 

Non-marital property can become marital property if they are mingled, for example, where one spouse places inheritance money into a joint account or uses it to pay for marital expenses. 

Likewise, separate property can be converted to marital property through transmutation and this is where the parties’ intent to change the characterization of the property is presumed.

Factors That Influence Property Division

The legal rules which regulate the division of the marital property in South Carolina include the following:

Length of the Marriage

Cohler also stated that longer marriages lead to fairer division of property while in short marriages the division of property is not fair.

Distributions from the Marital Estate

Earnings and non-earnings are taken into account, such as monetary and non-monetary, wage-earning, housekeeping, child care, and support of the other spouse’s employment.

Age and Health of Each Spouse

The physical and mental state of the couple as well as their age play a very important role in the division of assets, especially with regard to future maintenance.

Child Custody Arrangements

For example, if one of the spouses is awarded child custody, they may be awarded a greater share of the marital home or other property for the sake of the children’s stability.

Economic Circumstances

The present and future earning capacity of each of them is considered, including the possibility of differences in income or future job prospects.

Misconduct Related to Finances

Although South Carolina is a fair and equitable distribution state, tortious conduct such as adultery or dissipation of marital assets (wasting of marital property) is grounds for an equitable adjustment if it has a direct monetary effect on the marriage.

Retirement Accounts and Pensions in Property Division

Pension and retirement benefits are categorized as marital assets in South Carolina in as much as the contributions were made while the couple was still married. 

While these accounts are normally opened in one spouse’s name, the money that is earned during the marriage is marital property and therefore, is divisible in a divorce. 

This has to do with 401(k)s, IRAs, pensions, and other retirement plans provided by the employer.

Dividing Retirement Assets

Due to the fact that retirement accounts may be complicated, Dividing retirements and pensions or assets are dealt with by special procedures.

As for retirement benefits, the court may provide that the benefit amount be split according to the number of years of marriage and contributions made during that period. 

If both spouses have retirement accounts, the value of the two can be compared and one part of it can be given to the other with an aim of achieving parity.

QDROs – Qualified Domestic Relations Orders

In order to split retirement benefits, the court will provide a QDRO or Qualified Domestic Relations Order. 

A QDRO is actually a legal document that instructs the retirement plan administrator to split the account and transfer a part of it to the other spouse without incurring taxes. 

The QDRO helps in determining the portion that the receiving spouse is entitled to receive either in a one-shot payment or a series of payments upon retirement age depending on the type of plan. If the retirement assets are split without a QDRO, it can cause some severe tax implications and issues.

Handling the Marital Home

The most valuable non-liquid asset in many married couples is their home and determining who gets the house after the divorce is usually not easy. 

South Carolina courts provide the following varieties based on the circumstances of the parties to the suit and their desires. 

The first choices are to sell the home, have one spouse purchase the other out, or continue with joint ownership for a while.

Selling the Home

Divorce sells the marital home as this is an option that both partners cannot afford to keep the home single-handedly. 

The money realized from the sale is split between the spouses in terms of the equitable distribution order granted by the court. 

This option is selected when both parties wish to sever all the financial ties. However, the sale of the home may not be easy emotionally particularly when there are children or when there is disagreement over the sale of the home, the price, or the time when the sale should take place.

Financial Considerations

• Other expenses connected with the preparation of the home for sale

• Real estate agent fees

• Possible capital gains taxes

Legal Considerations

• Consensus on how the proceeds will be split after service of all the mortgage and other expenditures.

• When to sell to ensure that pressure on either partner financially is not experienced.

The Effects of Adultery on Property Distribution

In South Carolina, adultery plays a huge role in deciding whether or not someone will be entitled to alimony during a divorce but it does not necessarily dictate the division of assets.

The South Carolina courts adopt no-fault rules in the division of property in the marriage, which means that they don’t take into consideration the misconduct in the marriage such as adultery when distributing the property. 

But there are situations when financial misconduct connected with the affair takes place.

Adultery’s Impact on Alimony

South Carolina has laws that state that adultery is one of the grounds that can prevent the cheating partner from being awarded alimony. 

If the cheating spouse is after money, then you can block them from being awarded any kind of alimony, unless it is a limited circumstance such as where a premarital agreement allows it. 

However, the amount of property to be divided between the spouses does not reduce or increase based on the grounds of adultery.

Prenuptial and Postnuptial Agreements

Marital property agreements may include prenuptial or postnuptial agreements, which determine the manner in which real property is likely to be split in case of a divorce. 

These legal documents specify how the property and liabilities would be managed during the marriage and in case of divorce or annulment.

Impact on Property Division

Both agreements have a significant amount of effect on the property division listed below:

Prenuptial Agreements

These are prepared before marriage and show how assets and liabilities will be shared in the event of a divorce. 

They can identify which property is separate property that is not to be divided and they can also set rules as to how the marital property is to be split. 

Cohabitation agreements offer certainty and may help to avert animosity during the process of dissolution of a marriage as well as outlining the terms and conditions of the marriage.

Postnuptial Agreements

Postnuptial agreements are made after marriage just like the prenuptial agreements that are made before marriage. 

They concern themselves with how assets will be divided as well as how the financial issues will be solved in case of dissolution of marriage. 

The postnuptial agreements can be helpful if the couple’s financial status has altered or if the couple wants to know about the rights concerning property upon marriage.

How Our Divorce Lawyers Can Help You

Divorce lawyers at Max Hyde Law Firm will ensure that you get through the process of dividing properties in family court with ease. Here’s how we can help:

Expertise in Property Division

Our divorce attorneys are very conversant with the laws of South Carolina so your property division will be done as required by the laws of South Carolina. 

Here we will explain how marital assets and debts are characterized and distributed, as well as give recommendations based on your case.

Negotiation Skills

We specialize in achieving fair compensation; we fight for you so you can have the best possible result. 

Whether you require help in dividing complicated property such as pensions, or business, or you want to agree on the family home, our team can effectively negotiate for a fair share that is right for you.

Legal Document Preparation

Our lawyers are responsible for preparing and filing all the required legal paperwork. We make sure that all paperwork is correct and filed on time to minimize the chances of any hold-up in your case.

Comprehensive Support

In addition to the division of properties, we provide you with all-around services in your divorce. This includes dealing with any other matters pertaining to the case including child support, access and maintenance, and financial matters. 

It is our aim to offer you a full-service solution to your divorce, to make the process as easy and stress-free as possible.

Personalized Attention

We appreciate that each and every divorce case is a special one. Our team pays individual attention to your case, therefore, we ensure all your specific needs are met as per your case.

We are willing to help you closely to define the best strategy that will correspond to your goals and objectives.

If you require professional legal advice on property division in your divorce, please call Max Hyde Law Firm at (864) 804-6330 for a free consultation. This is why we are here to assist you and guide you through this difficult period with confidence and precision.