When you are going through a divorce, part of the process involves splitting up the property you and your ex-spouse owned together. Depending on the reason for your divorce and how well you and your ex get along, deciding who gets what can be a challenging process. In some instances, the court might have to step in and make the decision for you.
Working with an experienced divorce attorney can help you and your ex agree on property division without having to go through a complicated court process.
Equitable Property Division
In a divorce, there are two ways marital property gets divided. In community property states, marital property gets divided evenly. Spouse A receives 50% of the couple’s shared property, and Spouse B gets the other 50%. Marital property is any property acquired during the time the couple was married. Just nine states in the U.S. are community property states.
The other states, including South Carolina, are equitable property distribution states. In an equitable distribution state, any marital property gets divided equitably but not necessarily evenly. Spouse A might walk away from the divorce with 75% of the couple’s formerly shared property, while Spouse B ends up with 25% of the property. To determine what “equitable” means when dividing up the property, the court will likely examine each spouse’s contribution to the marriage and the property acquired.
For example, Spouse A might have contributed more financially to purchase the couple’s shared home. But Spouse B might have put in a lot of time and elbow grease fixing up and renovating the property. Additionally, Spouse B might gain full custody of the children after the divorce. In that case, the court might decide that Spouse B gets to keep the family home.
Types of Property Divided
During a divorce in South Carolina, only marital property gets divided between the spouses. Marital property is generally considered any property that was acquired during the marriage. It often includes property that benefits both partners in the marriage. In some cases, property a spouse brought into the marriage can be considered marital property if the spouses share it during the marriage.
Some common examples of marital property include:
- The family home: The home you lived in with your spouse is usually considered marital property, especially if you purchased it together after you got married. Any other real estate you own together is also traditionally regarded as marital property.
- Shared bank accounts: If you and your ex have bank or investment accounts that you opened together and both contributed to, those accounts are also considered marital property.
- Debts: Shared debts can include credit cards you and your ex opened together and personal loans and other financial obligations obtained during the marriage. The debt division can get tricky, particularly if one spouse racked up more debt than the other. The court might consider that when deciding how much of the shared debt each spouse is responsible for.
- Vehicles: Cars or other motor vehicles purchased during the marriage are also usually considered marital property. If you both owned your cars before getting married, those are likely to be considered nonmarital properties.
- Household items: Furniture, appliances and other household items may be considered marital property.
Nonmarital property items include those you or your spouse owned before you married, such as vehicles or credit cards in your name only. Gifted or inherited property can also be nonmarital property, even if you acquired it while married. For example, if your grandparent died and left you $5,000 and you put that money in an account that’s in your name only, the court will likely consider it your separate property during the divorce.
How Is Equitable Division Decided?
Since equitable division seeks to split property equitably but not necessarily equally, the court will consider various factors when deciding who gets what in the divorce process. How long you and your spouse were married and how old you were when you married could influence the court’s decision. The court also takes into account each spouse’s behavior during the marriage.
For example, if one spouse had an affair or otherwise cheated on the other, the court might award the injured spouse a higher percentage of the marital property. Similarly, if one spouse was economically irresponsible or reckless, the court will divide property accordingly. For instance, if Spouse A took out a credit card in both spouses’ names, then made lots of charges on it, the court might decide that Spouse A is responsible for most or all of the debt on that credit card.
The earnings potential of each spouse and their current income also determines the equitable distribution of property. The spouse with lower earnings potential or lower income will often receive a more significant portion of the shared property.
If children are involved, the court will also consider them when dividing the property. The spouse with primary or full custody of the children will likely get a more substantial portion of the property. Usually, the parent who has custody of the children will get to remain in the family home.
The judge also evaluates each spouse’s contributions to the marriage when dividing property. Suppose only one spouse earned income during the marriage. In that case, they don’t necessarily have a right to claim more shared property—nonmonetary contributions made by the spouse who didn’t work outside of the home also come under consideration. If one spouse cooked and cleaned and assumed primary child-rearing activities, the value of those contributions can affect how property gets divided.
When dividing property during a divorce, one thing to keep in mind is that a prenuptial agreement takes precedence over the state’s divorce laws. If the spouses signed an agreement that states that one spouse will get all of the marital property in a divorce or that certain assets need to be excluded from the marital estate, then the other spouse doesn’t have a legal claim to that property.
Contact an Experienced South Carolina Divorce Lawyer
If you’re going through a divorce, you want the process to be over as quickly and painlessly as possible so you can move on and start to rebuild your life. Working with an experienced divorce lawyer in South Carolina can help you understand all your options and help you get an equitable and fair divorce settlement. Contact Lauren Taylor Law today to schedule a consultation with an experienced divorce lawyer in South Carolina.
South Carolina divorce attorney Lauren Taylor practices family law in Charleston and Greenville. She graduated from the Charlotte School of Law, and has been practicing for more than ten years.
Since the firm’s inception in 2012, Mrs. Taylor has helped hundreds of people navigate the uncertainties surrounding the family and criminal court process.
She has cultivated a team that ensures each case has a strategy crafted specifically to the clients needs and desires.
Her commitment to top notch service has led her to open two additional offices in the low country where she now resides with her husband Michael and her golden retriever, Buster.