How Is Property Divided in a Charleston Divorce?
You made a promise to your spouse when you said, “I do,” and you had every intention of keeping that promise. You tried everything in your power to keep your marriage together, but it is just not working.
You have decided to face reality—you are about to get a divorce.
One of your bigger concerns may be your financial future. I understand – I have been there. Contemplating life after divorce can be very upsetting. The transition from two paychecks to one source of income can be very challenging. You also have to start planning for your life with fewer assets after your divorce becomes final.
You are probably asking: “How will my Charleston divorce judge divide our marital assets and debts?”
You want to be fair to your spouse, but you also want your share of the marital property. You want to be sure that you are not left with all of the debts and none of the property.
Don’t Sell Yourself Short in a Charleston Divorce Property Settlement
To accomplish your financial goals, you will need to have a better understanding of SC divorce law. Let’s get started by answering a basic question.
What Is The Difference Between “Separate Property” and “Marital Property”?
In most Charleston, SC divorces, there are two major types of property: (1) separate property, which is also known as “nonmarital property”; and (2) marital property.
Generally speaking, “separate property” is any property that you inherited or owned before the marriage. Separate property can also include a gift that someone gave you. “Marital property” is all other property that you or your spouse acquired during your marriage.
As the author of this article from Forbes explains, marital property may include: cars, boats, houses, businesses, investments, commercial property, military retirement, pension plans, IRA’s, all other types of retirement plans, stock options, securities, annuities, life insurance policies, bank accounts, rental property, limited partnerships, art, antiques, tax refunds, personal injury claims, and much more.
Since your Charleston divorce judge can only divide marital property, you want to maximize the value of your “separate property” and minimize the value of the assets that are characterized as “marital property.” Under South Carolina divorce law, the distinction between what is “separate property” and what is “marital property” can depend on a number of complex legal and factual issues. Consequently, you should discuss this matter in detail with your divorce attorney in Charleston, SC before you attempt to negotiate an equitable division of marital property.
What Factors Will Your Charleston Divorce Judge Consider When Dividing Your Marital Property?
South Carolina is known as an “equitable distribution” state in the division of marital assets. Instead of splitting marital property right down the middle “50-50” (as happens in “community property” states, like California and Texas), your Charleston divorce judge will consider many factors in deciding how to make an ”equitable division of marital property.” The resulting property division may not be equal, but it should be fair and equitable when all factors are considered.
There is no statute or set of rules that dictate who will receive what marital property in a Charleston, SC divorce. Instead, your family court judge should consider the following factors in dividing your marital assets and debts:
- The income of each spouse
- The earning potential of each spouse
- The need of you or your spouse for additional training or education to reach earning potential
- The physical and mental health of each spouse
- The non-marital property of each spouse
- Tax consequences
- Marital misconduct or fault as a factor contributing to the breakdown of the marriage
- Duration of the marriage
- Contributions of the parties
- Nonmarital property of each spouse
- Existence of a spousal support (alimony) award
- Use of the marital home
- Retirement benefits
- Encumbrances on the property and other debts
- Child custody obligations
Since the division of marital property in a Charleston divorce is more of an “art” than it is a “science,” you should hire a family law attorney in Charleston to guide you through the complex process of valuing and dividing marital assets and debts. This is particularly true if you have high-value assets, own a business, earn an income of more than $100,000, or own property that is difficult to value. By hiring a Charleston divorce lawyer, you may “save” money through negotiating a more favorable divorce property settlement.
Some Expensive Mistakes to Avoid in Dividing Your Marital Property
You may have more property than you thought.
It sounds simple enough, but when you share your life with someone and your life becomes our life, then your property often becomes our property, and the line between the two blurs. For example, if you owned a vacation home prior to your marriage, your Charleston divorce judge may decide that your “separate property” became “marital property” through any of a number of possible actions that are generally known as the “transmutation of separate property.”
Here is another common misconception. If a marital asset (like a home, car, or retirement plan) is titled in your spouse’s name, you are still entitled to include that asset as part of the division of marital assets in your Charleston, SC divorce. Do not fall into the trap of thinking that just because your name is not on the title to the property that you have no right to that property.
Your Divorce Property Division Matters.
As a Charleston divorce lawyer, I have been helping people like you for years. I can help you navigate what may seem like the impossible. Together, we will look at all of your assets and create a financial plan that works best for you.
I have created Charleston alimony, child custody, and property division guides to answer some of your immediate questions. However, you should not stop there. The Charleston divorce process will be much, much harder if you try to go it alone. You need someone on your side who understands South Carolina family law.
Please call me at 843-631-7117 or use the contact form to get answers to your Charleston divorce questions. There is no charge for our initial phone conversation.
Working together, we will build a better tomorrow for you.