If you are getting divorced in South Carolina, do you know what property you get to keep and what you will have to split with your spouse? What about whether you'll be responsible for your spouse’s credit card debt? Here are the rules.
When faced with the task of dividing property at the end of your marriage, it is usually worth the effort to work with your spouse on a marital settlement agreement – a written document that tells the court how the spouses want to divide their property. If you can’t work with your spouse, or if there are certain assets that are in dispute, then the court will distribute the property for you based on a system called equitable division.
Equitable division (or “equitable apportionment” in South Carolina law) means that the property will be split between spouses in a way that is equitable. The court decides what’s equitable, or fair, based on a set of factors designed to show the complete picture of the marriage’s financial health and what each spouse will need to move forward after divorce. The division does not have to be equal to be fair.
Before the court can divide your property, it needs to know which property belongs to the marriage –the marital property – and which property belongs to each of the two spouses – the non-marital property. Marital property is property acquired or earned during the marriage, regardless of what the title to the property might say. Property used for the benefit of the marriage or shared with the other spouse, even if it started out as separate property, may also be considered marital property. All the marital property must be divided between the spouses when the marriage ends.
Generally, non-marital property is property that either belonged only to one spouse before marriage or was acquired after the filing for divorce. Among other things, it could include some property given only to you during the marriage, like a gift of antique golf clubs from your grandfather or an inheritance upon the death of your great aunt. In South Carolina, non-marital property remains in the hands of the spouse who owned it before or during the marriage.
The most common types of property divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, dividends, and benefits. All of your debts must be divided as well, just like your property. If your spouse racked up credit card debt or made poor investments with marital funds during marriage, then that debt belongs to the marriage and you could be held responsible for part of it.
Where one spouse engaged in financial misbehavior – say, your spouse gets habitually drunk and gambles away the savings account – the court will weigh that factor in deciding how much of the debt you have to shoulder. Incidentally, in this example the drinking problem does not need to be the basis for your divorce (you could have filed on other grounds, like the two of you have lived separate and apart for one year). What matters is that the misconduct had an impact on marital resources.
In order to divide property, the court must characterize any disputed item of property as marital or separate, and evaluate the property's value, usually using information provided by the spouses. Once all the property is valued, the court will divide it based on a number of factors, including your monetary and non-monetary contributions to the marital property. Monetary contributions are property (other than non-marital property) and appreciation in the value of the property, income, and the use of non-marital funds for the benefit of the marriage. Non-monetary contributions include homemaking, child-care services, and other unpaid work.
The law says the court will look at the quality of these contributions rather than their mere existence. So the time and effort you spent remodeling the family home will count for less if you did a bad job of it. Also, the court is more likely to give you the family home if there are children of the marriage who live with you most of the time.
Other factors include the length of your marriage, the ages and health of each spouse, the amount of non-marital property, and any fault that may have affected marital resources, as described above. Additional factors account for each spouse’s need for additional education or training, retirement benefits, debts or liens on property, any alimony due, and tax consequences. The court is free to give more weight to certain factors and will consider them again when calculating alimony payments.
Alimony (or spousal support) is a payment from one spouse to the other to help the recipient spouse maintain a lifestyle as close as possible to the one they had during marriage. In South Carolina, the court will evaluate a spouse’s needs for alimony based on the same factors as the ones used for property division above. Although the court has wide discretion in what to award and how it must be paid, any order to pay alimony must be fair. Payments could be periodic (monthly, for example), in a lump sum (one payment), rehabilitative (giving a spouse help to find a job or complete training) or as reimbursement (paying the recipient spouse from the obligated spouse’s future earnings where the obligated spouse improved earning capability during marriage).
Additionally, if you have asked the court for alimony and are considering a romantic fling before the court has entered an order for alimony in your favor, think again. South Carolina law says a court can’t give you alimony if you commit adultery before either you sign a written marital property agreement or the court has entered a permanent order for alimony, whichever happens first.