Unlike many other states, South Carolina is not a community property state. In our state, the marital property in a divorce is not divided 50/50. Instead, it is distributed in a manner that is fair and equitable to both parties, which may not necessarily be an equal distribution. As a result, property division can become quite complicated in divorce proceedings. What one party considers to be a “fair” distribution may be greatly different from what the other party thinks.
That is why you should have an experienced divorce lawyer from McKinney, Tucker & Lemel, LLC, on your side if you are going through a divorce in Rock Hill or a nearby community. You can count on us to protect your rights and assets throughout your divorce. To discuss the specific facts of your case, connect with us today for a confidential consultation.
What Types of Property Are Divided in a South Carolina Divorce?
In an equitable distribution state such as South Carolina, only marital property is subject to division. Marital property includes any assets which the couple acquired together during the marriage. Typically, marital assets are those which the couple purchased using marital funds. The marital home, vehicles, bank accounts, stock options and even household items are just a few of the assets that may be divided.
Often, a spouse believes that certain types of property such as the marital home belongs solely to the spouse because only his or her name appears on the title or deed. However, that is not the case. As long as the couple bought the home or other asset with marital funds, it is considered to be marital property.
A few exceptions exist. For example, if one spouse received an asset as a gift during the marriage or inherited it, it could be treated as separate property which is not subject to distribution. However, the spouse would need to keep the asset separate during the marriage and not allow it to become commingled with marital assets.
For example, if a spouse received an inheritance and kept it in a separate bank account throughout the marriage, a court would likely consider it to be separate property. If the same spouse placed the inheritance into a joint bank account on the other hand, a judge may deem the asset to be a marital one.
How Does Equitable Distribution of Property Work?
Equitable distribution of property can become quite complicated. Determining which property is separate and marital is just one issue that the parties in a marriage must address. Dividing the marital property can become especially challenging. In some instances, property may have to be sold in order to make the property distribution fair and equitable. Gifts exchanged between the spouses are also considered marital property. So, they are subject to property division. Debts must be divided as well.
A court will take many factors into consideration when determining how to divide property between two spouses. Those factors include:
- Length of the marriage
- Ages of the spouses at the time of marriage and divorce
- Wrongdoing such as adultery by either spouse during the marriage
- Value of the marital property
- Amount each spouse contributed to the asset
- Income of each spouse
- Potential earnings for each spouse
- Each spouse’s health condition
- Separate property of each spouse
- Retirement benefits of each spouse
- Decisions on child custody, child support and other arrangements
- Any maintenance or alimony awarded as part of the divorce
- Tax consequences of certain types of property division
- Child or spousal support arrangements from a previous marriage.
If you are going through a South Carolina divorce, your lawyer from McKinney, Tucker & Lemel, LLC, can help you to identify and valuate all marital property which is subject to distribution. We can also work through the distribution process, including gather and analyzing evidence which addresses the factors listed above.
Can You Agree to Property Division in a Separation Agreement?
In South Carolina, people are either married or not married. Couples can choose to live separately before their divorce is final, or as a trial period before starting the divorce process. However, even during that period of separation, the couple will still be considered to be married.
However, during the separation period, the couple can negotiate the terms of their divorce, including distribution of property. They can then enter into a separation agreement. In many cases, the divorcing couple will do so only after they go through mediation. In mediation, a neutral third party, or mediator, tries to get both sides to compromise and reach an agreement on division of their property and other issues such as alimony, child custody and child support.
Should You Consider a Prenuptial Agreement?
South Carolina recognizes prenuptial agreements, also sometimes called premarital agreements or simply “prenups.” However, the agreement must be fair to both parties who are entering the marriage. They must also sign the agreement voluntarily. A prenuptial agreement may be appropriate where:
- Both parties have acquired significant wealth before the marriage
- There is a significant difference in the assets of each spouse
- One party has children from another marriage or relationship
- One party owns a business and wants to keep it separate and apart from marital assets.
Prenuptial agreements were once a sensitive subject. If one party entering a marriage raised the idea of a prenuptial agreement, the other party may have taken it as a sign of distrust. However, today, prenuptial agreements are common. The agreement can actually be reassuring. It can show that each person is entering the marriage out of love and affection and not for financial gain.
When couples enter into a marriage without a prenuptial agreement and then determine that they would like to protect their assets, they can draft a postnuptial agreement. However, to be enforceable, the agreement must meet the same standards as a prenuptial agreement.
How Can a Rock Hill Divorce Lawyer Help You?
If you are considering divorce, or you have already started the process, get help from our Rock Hill divorce lawyers at McKinney, Tucker & Lemel, LLC, today. We have extensive experience with handling property division and the many other issues which arise in a divorce. Contact us today to schedule a confidential consultation about your case.
After he graduated from the University of South Carolina School of Law in 1987, Jim Tucker joined the law firm of McKinney, Givens & Millar in Rock Hill. He has remained with successor firms at the same location ever since while focusing his practice in the areas of family law and personal injury law. Jim is licensed in South Carolina and North Carolina, and he represents clients in both states at the trial and appellate levels. Jim is also a certified mediator and a highly active member of several state and local legal organizations who once served as President of the York County Bar Association.