Division of Property in South Carolina

How property is distributed is a key issue in most South Carolina divorce cases. That's true regardless of the amount of assets a couple has. If resources are limited, division of assets will impact the standard of living of the parties after divorce. If a couple has significant assets, the stakes are high. And, unfortunately, many divorcing parties want to fight over assets simply because of animosity or a desire to "beat" their spouse.

If you are divorcing or considering filing for divorce in South Carolina, it is important to understand how our courts make decisions about property.


Not all Property is Divided by the Divorce Court

A property division order deals only with marital property. That generally means property that was acquired during the marriage or using marital assets, though there are some exceptions.

Some examples of property that would generally not be considered marital property and would not be divided by the divorce court are:

  • Property one party owned before the marriage
  • Property that one party inherited during the marriage
  • Property that was gifted to one party during the marriage, by someone other than the other spouse
  • Property that was purchased entirely with separate funds that one party owned before the marriage

One thing many divorcing couples do not realize is that in South Carolina, it doesn't matter whose name is on the title to property. For example, if a couple purchases an automobile in the wife's name only, but uses funds from a shared bank account during the marriage to make payments on the car, the car is marital property. The divorce court could decide to leave the vehicle with the wife, but could also award the car to the husband and require the wife to sign over the title. Even if the wife keeps the car, it goes into her column for marital assets received and may be offset by other property going to the husband.

Similarly, retirement accounts are marital property subject to division by the divorce court to the extent that contributions were made during the marriage.

Determining what is and is not marital property gets complicated when one party owned an asset before the marriage, but marital funds have been invested in that asset since. Some common examples include:

  • Retirement accounts that existed prior to the marriage, but have continued to grow through ongoing contributions during the marriage
  • A house or other real estate that one party purchased but had not paid off before the marriage, when marital funds have been used to make mortgage payments
  • A house or other real estate that one party owned before the marriage, but was improved using marital funds

In these situations, an expert may be required to establish what portion of the asset should be treated as marital property.

How is Marital Property Divided?

South Carolina courts have a lot of discretion in determining how marital property is distributed in a divorce case. South Carolina law provides a long list of factors to be considered in determining how to divide property. These include:

  • How long the parties have been married, and how old each was at the time of the marriage and the time of separation
  • The extent to which each contributed to accumulating and preserving assets or to dissipating them
  • The value of the marital property
  • Each spouse's income, retirement benefits, and other resources
  • The physical and emotional health of the parties
  • Whether maintenance or alimony has been awarded
  • Each spouse's earning capacity, and whether training or education is necessary to increase that earning capacity
  • Tax consequences to one or both parties
  • Any child support obligations either may have for a child not of the marriage

However, the court may also consider any other information it determines is relevant. The broad discretion in this area is one reason that it is important to work with a divorce lawyer who has extensive experience with the division of property in South Carolina and can help build the strongest case possible on your behalf.

South Carolina Courts Typically Honor Prenuptial Agreements

One key factor in how property will be divided in your South Carolina divorce case is whether you have a prenuptial or a postnuptial agreement. A properly executed prenuptial or postnuptial agreement will typically be honored by South Carolina courts. In other words, if you already entered into a binding agreement about how property would be distributed if you divorce, you will likely have to abide by that agreement.

There are a few exceptions, such as:

  • When one party hid assets from the other when they entered into the agreement
  • When a change in circumstances would make enforcing the agreement unreasonable
  • When the agreement is unconscionable

In these circumstances, the divorce court may set aside a prenuptial or postnuptial agreement and determine division of assets as it would if there had been no agreement. But, South Carolina courts don’t make this determination lightly.

Talk to an Experienced South Carolina Divorce Lawyer

Whether you have been served with divorce papers or are considering filing yourself, it is important to get knowledgeable guidance about your property as soon as possible. Actions you take during the separation may impact property division and your attorney may need time to gather documentation and employ experts to establish the value of certain property and your claim to that property. You may also need to enter into a temporary agreement or petition the court for temporary orders to ensure that your assets are preserved while the divorce case is underway.

To learn more about how the attorneys at Fender Law Firm LLC can help you schedule a consultation right now, just call 843-379-4888 or fill out the contact form on this site.