5 Myths About Property Division in South Carolina Divorce

Property division in divorce (also referred to as “equitable apportionment”) in South Carolina is how a couple’s marital estate is divided. Equitable distribution of marital property "is based on a recognition that marriage is, among other things, an economic partnership.” Mallett v. Mallett, 473 S.E.2d 804 (S.C. Ct. App. 1996).

S.C. Code Ann. Section 20-3-620(A) defines marital property as all real and personal property acquired by the couples during the marriage and owned by them on the date the marital litigation is filed. The marital estate includes real property (like real estate) and personal property (like pensions, retirement accounts, other financial accounts, household furnishings, cars, boats, and motorcycles), as well as the parties’ marital debts.

Because division of marital property happens every day and in every divorce, most people believe they know how it works. Unfortunately, there are common myths about property division we have to correct regularly. Read on to be better informed about property division for your divorce.

Myth #1: Title Is The Only Thing That Matters

Many people going through divorce believe if an asset, like their home, is in their sole name, then it is not marital property.? The truth is all assets acquired between the date of marriage and the date of the marital litigation being filed are usually included in the marital estate, regardless of title!

Sometimes there are questions about whether premarital or separate property has been transmuted into marital property. In those circumstances, title may have a greater impact on what is included in the marital estate.?

But generally, title is a practical problem to solve once a full property division has been decided. For example, a car titled in one spouse’s name may be kept by the other spouse as part of how the property division works out. In that situation, the title will have to be transferred between the former spouses.

Myth #2: Debts Don’t Matter

Many people going through a divorce prioritize identifying the marital assets but ignore the marital debts. That’s not surprising – who wants to be reminded of their liabilities?

An example of this happens when a spouse believes they are entitled to receive half the value of the marital home, but they don’t account for the mortgage balance.?

Ultimately, the Family Court must equitably divide the marital assets and debts. Forgetting how debts affect property division can cause you to have unrealistic expectations, which can make cases harder to resolve.

Myth #3: Each Asset is Split in Half

Often, a person going through divorce will make a list of their marital assets and expect that each spouse will walk away with one-half of the value of each asset.?

For example, if a husband has a 401k with $50,000 in it and the wife has a 401k with $25,000 in it, they might expect to each get a portion of the other’s account. But what is more likely is for the wife to keep her 401k, and for $12,500 of the husband’s 401k to be transferred to her as well. With this method, each spouse receives $37,500 in retirement funds, and there are fewer transfers between accounts overall.

Instead of thinking you will divide your property asset-by-asset, understand the value of all assets (and debts!) will be calculated, and then each spouse will receive a percentage of the total. You might receive 100% of some assets and 0% of others, depending on what is best for your case.

Myth #4: There’s a Property Division Formula

Almost everyone believes the marital estate will be divided equally between spouses, but that’s not always true. There is no requirement for each spouse to receive an equal share of the marital estate.

S.C. Code Ann. Section 63-3-620(B) details the 15 factors the Family Court is required to consider for equitable division of property in divorce. Those factors are:

1. The duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;
2. Marital misconduct or fault of either or both parties (such as adultery, habitual drunkenness, and physical cruelty or domestic violence), whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct occurs after (a) entry of a pendente lite order in a divorce or separate maintenance action; (b) formal signing of a written property or marital settlement agreement; or (c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
3. The value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;
4. The income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;
5. The health, both physical and emotional, of each spouse;
6. The need of each spouse or either spouse for additional training or education in order to achieve that spouses's income potential;
7. The nonmarital property of each spouse;
8. The existence or nonexistence of vested retirement benefits for each or either spouse;
9. Whether separate maintenance, spousal support, or alimony has been awarded;
10. The desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;
11. The tax consequences to each or either party as a result of any particular form of equitable apportionment;
12. The existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;
13. Liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;
14. Child custody arrangements and obligations at the time of the entry of the order; and
15. Such other relevant factors as the trial court shall expressly enumerate in its order.

All of these factors mean there is no formula to divide property for use in every divorce. However, there is one factor the Family Court tends to consider more heavily than others: the length of the marriage.?

In Doe v. Doe, 370 S.C. 206 (Ct. App. 2006), the South Carolina Court of Appeals held: “While there is certainly no recognized presumption in favor of a fifty-fifty division, we approve equal division as an appropriate starting point for a family court judge attempting to divide an estate of a long-term marriage.”?

In 2014, the South Carolina Supreme Court embraced a presumption of a fifty-fifty division in long-term marriages in Crossland v. Crossland, 408 S.C. 443 (2014).

It is important to understand: because no two marriages are exactly alike, no two divorces will be exactly alike. The circumstances of every marriage, and how the statutory factors apply, affect every property distribution differently.

Myth #5: Property Division Can Always Be Done Quickly and Cheaply

It is often harder, and more complicated than expected, to separate a couple’s assets and debts. Even for the most straightforward uncontested divorces, it can take time to identify the marital estate and determine its value.

Sometimes, real estate must be sold in a tough market or one party cannot immediately qualify to refinance a mortgage. In other cases, the couple may own a business, and its value has to be determined by a forensic accountant.

It can take years – sometimes a lifetime – for a couple to accrue their assets, and untangling the spouses from each other may also take time.

Consider Hiring A Divorce Lawyer to Help with Property Division

Property division is often more complicated than people expect. So it can be very important to hire a divorce lawyer in South Carolina who can identify the facts most relevant for your property division.

The attorneys of Dell Family Law, P.C. can help you divide your marital property in a way that makes sense for your family.