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 to keep your marriage together, but sometimes a marriage simply cannot be saved.

You have decided to face reality—you are about to get a divorce.

One of your biggest concerns may be your financial future. Contemplating life after divorce can be upsetting. The transition from two incomes to one can be challenging, and you may also need to plan for how your assets and debts will be divided when your divorce becomes final.

You may be wondering: How will the Charleston Family Court divide our marital assets and debts?

You want the property division to be fair, but you also want to protect your financial interests. You do not want to be left with an unfair share of the marital debts or discover later that an important asset was overlooked.

Don’t Sell Yourself Short in a Charleston Divorce Property Settlement

To protect your financial interests, you need to understand how South Carolina law classifies and divides property in a divorce.

Let’s start with a basic question.

What Is The Difference Between “Separate Property” and “Marital Property”?

In a Charleston, South Carolina divorce, property generally falls into two categories: marital property and nonmarital property, sometimes referred to as separate 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, South Carolina 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 an “equitable distribution” state when it comes to the division of marital assets. Instead of automatically splitting marital property 50-50, your Charleston divorce judge will consider the circumstances of the marriage and the statutory factors that apply to the equitable apportionment of marital property. The resulting property division may not be equal, but it should be equitable after the relevant factors are considered.

South Carolina law provides specific factors that the Family Court must consider when making an equitable apportionment of marital property. Under S.C. Code § 20-3-620(B), the Family Court must give appropriate weight to 15 statutory factors when making an equitable apportionment of marital property. These factors include the duration of the marriage, marital misconduct or fault under the circumstances specified by statute, the value and contributions relating to marital property, each spouse’s income and earning potential, health, nonmarital property, retirement benefits, alimony, the family home, tax consequences, support obligations, debts, child-custody arrangements, and other relevant factors. The court’s consideration of these factors does not necessarily result in an equal 50-50 division of marital property. Instead, your Family Court judge should consider the following factors in dividing your marital assets and debts:

• The duration of the marriage, including the ages of the spouses when they married and when the divorce or other marital litigation occurs
• Marital misconduct or fault, when the misconduct affects the economic circumstances of the parties or contributed to the breakup of the marriage, subject to the limitations established by statute
• The value of the marital property and each spouse’s contribution to its acquisition, preservation, depreciation, or appreciation, including contributions as a homemaker
• The income and earning potential of each spouse and each spouse’s opportunity for future acquisition of capital assets
• The physical and emotional health of each spouse
• The need for additional education or training for either spouse to reach his or her income potential
• The nonmarital property owned by each spouse
• The existence or nonexistence of vested retirement benefits for either spouse
• Whether separate maintenance or alimony has been awarded
• The desirability of awarding the family home as part of the equitable distribution or allowing the spouse with custody of children to live in the home for reasonable periods
• The tax consequences to either spouse resulting from a particular form of equitable apportionment
• Existing support obligations, including obligations arising from a prior marriage or for another reason
• Liens and other encumbrances on marital or separate property, as well as other existing debts incurred by either spouse during the marriage
• Child custody arrangements and obligations at the time the order is entered
• Any other relevant factors that the trial court expressly identifies in its order

Because the division of marital property in a Charleston divorce involves the application of these factors to the specific circumstances of each marriage, determining how assets and debts should be divided can be complex. This can be particularly true when a divorce involves significant assets, a business, substantial retirement accounts, real estate, or property that is difficult to value. A South Carolina family law attorney can help you understand the factors that may apply to your circumstances and the issues that may need to be addressed when dividing marital assets and debts.

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, South Carolina 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) 800-2928 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.

Recommendations For Additional Reading

Protecting Your Assets in a Charleston Divorce

Critical Factors in a High Net Worth Divorce

How to Financially Survive Your Divorce

4 Types of Financial Documents You Will Need for Your Divorce