When you face a divorce in South Carolina, dividing your property is one of the most important steps in the legal process. The choices made during this time will impact your housing, your retirement, and your long-term financial security.
Before your property can be divided, the court must determine which assets and debts belong to the marriage and which belong to each spouse individually. Understanding how this process works can help you prepare for the financial decisions ahead.
At Savage, Royall & Sheheen, we provide straightforward legal facts to help you prepare for this process. Our Camden family law attorneys help you protect what you have built.
South Carolina Is an Equitable Distribution State – What Does That Mean?
Equitable distribution means the family court splits your property in a way that is fair, but not always equal. A judge will look at what each spouse contributed to the marriage and what each spouse will need after the divorce.
The court does not start with the idea that everything must be divided right down the middle. In some cases, a judge might award one spouse 60% of the assets and the other spouse 40%. The final percentage depends on your specific financial situation, how long you were married, and other facts listed in the state statutes.
Marital Property vs. Separate Property in SC
Before a judge can split your assets, they must decide what belongs to the marriage and what belongs to you alone. Under South Carolina law for property division, this means sorting everything into two distinct groups:
1. Marital Property
So, what is marital property? Marital property includes almost all assets and debts that you or your spouse got during the marriage. It does not matter whose name is on the title or the bank account. Common examples include:
- Houses and land bought while you were married.
- Income earned by either spouse during the marriage.
- Vehicles, furniture, and bank accounts opened during the marriage.
2. Separate Property
Separate property belongs to just one spouse and cannot be divided by the court. To keep property separate, it must meet specific rules. Separate property includes:
- Property you owned before you got married.
- Inheritances given to you alone before or during the marriage.
- Gifts given to you alone by someone other than your spouse.
How Do Courts Divide Property Equitably?
Family court judges look at fifteen specific items listed in South Carolina Code Section 20-3-620(B) to decide how to split your assets. The law requires judges to weigh these items carefully.
- Length of the Marriage: Marriages that lasted for decades are often treated differently from those that lasted two years.
- Marital Misconduct: If one spouse committed adultery or physical abuse, the judge can give the other spouse a larger share of the property.
- Income and Earning Potential: The court considers each person’s current earnings and their future ability to earn a living.
- Non-marital Property: If one spouse already owns a large amount of separate property, the judge might give more marital property to the other spouse.
- Child Custody: The parent with primary custody of the children may receive more assets, such as the family home, to help maintain stability in the children’s lives.
Who Gets the House in a Divorce?
The family home is often the largest asset a couple owns, and South Carolina courts have a few ways to handle it depending on your family’s situation.
If you have children, the judge will often let the parent with primary custody stay in the home. The parent who stays in the house may need to buy out the other spouse’s share of the equity by refinancing the mortgage.
When keeping the house is too expensive for one person, or if the couple cannot agree on a buyout, the court can order the property sold. Once the house sells, the profit is split fairly between the spouses under the rules of equitable distribution.
If you owned the home before marriage, it might stay your separate property. However, if your spouse helped pay the mortgage or if you added their name to the deed, the house may become marital property.
Dividing Retirement Accounts and Pensions (QDROs)
Retirement savings built up during a marriage are marital property. This includes 401(k) plans, IRAs, and military or state pensions. Splitting these accounts requires special care to avoid early withdrawal penalties or extra taxes.
To divide a workplace retirement plan, your attorney must use a Qualified Domestic Relations Order (QDRO). This order tells the company managing the retirement plan how to split the account between you and your ex-spouse. The money can then be moved into your own retirement account without triggering a tax penalty.
Business Ownership and Divorce in SC
If you or your spouse started a business during the marriage, that business is usually considered marital property. Even if only one spouse runs the daily operations, the other spouse may have a legal right to a share of its value.
Dividing a business requires an official valuation to determine its value on the open market. Once the value is set, the court will decide how to allocate the non-owning spouse’s fair share. This is often done by giving the non-owning spouse other marital assets, such as cash or real estate, so the business can continue operating without interruption.
Debt Division: Who Owes What After Divorce?
Divorce property division also includes dividing your debts. Marital debt typically involves credit card debt, car loans, mortgages, and medical bills incurred during the marriage.
South Carolina judges divide debt using the same equitable rules they use for assets. The court looks at who ran up the debt and who benefited from the money. For example, if your spouse opened a credit card in their name alone but used it to buy groceries and clothes for the family, the court will likely view that as a shared marital debt.
Can You Protect Property With a Prenuptial Agreement?
You can avoid the equitable distribution process if you have a valid prenuptial or postnuptial agreement. A prenuptial agreement is a contract signed before marriage that specifies how property and debts will be divided if you divorce.
Contact Our Family Law Attorneys
Managing divorce property division requires a clear understanding of state statutes and local court procedures. If you have questions about South Carolina divorce laws for property division, you can reach out to our team.
Our attorneys provide clear, direct legal guidance based on state statutes to help you protect your financial future. Contact Savage, Royall & Sheheen at 803-432-4391 to schedule a consultation with our family law attorney.