While many states recognize marital assets as community property, South Carolina does not. During a divorce in South Carolina, marital assets are divided based on the theory of equitable distribution. This is not an automatic 50/50 split as you might be thinking. The courts look at a selection of variables, including overall debts and assets, the current financial state, and what the current earning potential is of each spouse.
Establishing Marital Property
The first thing is to establish what is marital property. It’s conceivable that spouses will have some separate property as well as marital assets. Marital property refers to the assets that were earned or acquired during the marriage, regardless of who’s name it is in. In some instances, separate property may be deemed marital property if it’s being used for the benefit of both spouses. However, if you received an inheritance and kept it in a completely separate account with only your name, that would likely be deemed separate property. If you deposit that in the joint bank account to pay off a marital debt, there’s an argument to be made that it’s now marital property.
Some of the most common types of marital property to be divided include real property, like the family home, and intangible assets like income and financial accounts. Gifts between spouses are typically considered marital assets, and would be subject to asset division during the divorce. And, just as assets are divided between spouses, so are the debts. If one spouse is reckless and has a drinking or gambling problem that resulted in reckless financial behavior, the courts will weigh that in.
Asset division may not even make sense on the surface, as the court may award one spouse property that was owned by another spouse, may require the sale of some assets, etc., to make what he or she thinks is equitable distribution.
Does the Length of the Marriage Make a Difference?
Yes and no. In theory, separating property in a marriage that only lasted a couple of years is likely to be easier since there was not a lot of time to accumulate assets together. The usual idea is to take the spouses back to what they brought to the marriage together, which may be complicated if there was a lot of commingling of funds. If the marriage was a long-lasting one, a judge may be more inclined to find a division that is similar to a 50/50 split. Again, there are individual circumstances that would see a much different ruling to “be equitable.”
Alimony in South Carolina
When it comes time to establish spousal support, or alimony, the courts look at this process the same as property division. The courts will use the same criteria, although they have a lot of latitude in deciding how much alimony to award. Ultimately, it still needs to be fair. One thing to note with alimony; if you engage in romantic behavior with someone new prior to the finalized order for alimony or the marital property agreement, the court may deem it adultery.
Hiring a Greenville Divorce Attorney
South Carolina is not one of the easiest states to get divorced in, but having the right Greenville divorce attorney can make a huge difference. The knowledgeable family law attorneys at Elliott Frazier Law Firm are experienced in many areas of family law, including asset division during a divorce. Contact our office by phone, or use the contact form on our website to schedule a consultation.
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.