"Marital Property" is a specific legal term. South Carolina law defines marital property as all property which has been acquired by you and your spouse during the marriage and which is still in existence on the day you the divorce papers are filed. Legally speaking, there is no such thing as marital property until the divorce papers are actually filed. Also, property that you owned at one time during your marriage, but is now gone (such as a car that you sold five years ago) is not marital property. Generally speaking, property that is acquired after divorce papers are filed will not be considered marital property. If you win the lottery the day before you file divorce papers, then your winnings will probably be considered marital property! The house owned by you and your spouse, your 401(k), your spouse’s I.R.A., the Lazy Boy recliner and the big screen T.V. will all be transformed into marital property on the day that the divorce papers are filed.


"What is Equitable Division?"

Equitable Division is also called Equitable Distribution. The two terms are interchangeable. The law says that the Family Court is supposed to, as fairly as possible, divide and distribute all marital property (remember the definition above) you and your spouse have accumulated during your marriage.

The law regards marriage as an economic partnership. When you and your spouse get a divorce, the Family Court Judge will attempt to divide and distribute the marital property in a manner which fairly reflects each spouse’s contribution to the acquisition of the marital property, regardless of which spouse (or whoever) owns legal title.

In most cases, the Judge will also sever all joint interests in the marital property as completely as possible. The goal of the Family Court Judge is to resolve all marital property issues so that disputes and irritants do not linger after the divorce. Once you are divorced, you should be able to get on with your life without any ties to your ex-spouse.


"How Does the Family Court Divide Marital Property?"

There are four steps used by the Family Court in dividing marital property:

(1) Identify the marital property to be divided;

(2) Determine the fair market value of the property;

(3) Calculate the percentage each spouse contributed to the acquisition of the marital property; and,

(4) Divide (fairly) the marital property.


"What if Our Property Isn’t Jointly Titled?"

The Family Court has the power to divide property regardless of who has title. If your spouse has titled everything in his or her own name, the Judge has the power to "re-title" it if necessary. Even if your spouse refuses to sign a title or deed, the Family Court has the power to issue a new title or deed without your spouse’s signature. If your spouse titled some land in "Mama’s" name, the Judge has the power to remove the property from any other person’s name. The Family Court can then "re-title" the property and divide it between you and your spouse.


"What Is Not Marital Property?"

As we previously said, marital property is all property accumulated by you and your spouse during the marriage. However, there is property that you can own that is NOT considered marital property. Any non-marital property that you have at the time of the divorce will NOT be divided between you and your spouse. You will get to keep 100% of your non-marital property.

Gifts and inheritance are NOT marital property. If you inherited money or property during your marriage, it may be non-marital property. If it is non-marital property, then you will not have to share it with your spouse. Property that was given to you as a gift may also be non-marital property. Gifts and inheritances from somebody other than your spouse are non-marital property. However, gifts from your spouse are marital property. There are many exceptions to this general rule. Please talk to an attorney if you have any questions about whether or not your property is non-marital.

Property acquired before marriage is NOT marital property. Also, property acquired after divorce papers have been filed may also be non-marital property. An engagement ring is non-marital property because it was acquired before the marriage. If you want to buy a house or acquire other property after divorce papers have been filed, be sure to seek legal advice before doing so.


"Is Retirement Marital Property?"

Generally, "Yes." The portion of your retirement that you accumulated during your marriage is marital property. The portion of your retirement that you accumulated before you married your spouse is non-marital property. The Judge will divide the marital property portion of your retirement and your spouse’s retirement. Civil service retirement and military retirement benefits, are also "marital assets" that will be divided by the Judge. There are special rules that apply to military retirements. Be sure your attorney has experience with these rules if you or your spouse is a retired military service member.

Social Security Benefits are non-marital property, and cannot be divided by the Family Court. Your and your spouse will each receive the same amount of Social Security benefits regardless of whether or not you are divorced or remain married.


"What is the Value of Our Marital Property?"

After marital property is identified, it must be valued. Fair market value must be determined for all marital property. Generally, houses and real estate will need to be appraised by a professional appraiser. Other assets may be valued in different ways. A business owned by you or your spouse must also be valued. An accountant or other professional may have to be employed by your lawyer to determine the value of a business. Retirement benefits are valued in different ways by the Judge, but a value can be given to any type of retirement benefit.


"How Much Am I Going to Get?"

Many Western states have "community property" laws. In a community property state (such as California), the marital property is almost always divided 50/50 between the spouses. South Carolina is NOT a "community Property" state. There is NO requirement in South Carolina that marital property should be divided 50/50.

The Judge will consider all relevant factors before deciding the percentage of marital property each spouse will receive. The law says that the Judge must consider 15 specific factors:

(1) Duration of the Marriage. In order to decide the percentage of marital property each spouse will receive, the Judge will take into consideration the length of the marriage. The Judge also considers your age and your spouse’s age at the time of the marriage and at the time of the divorce. Many times, a long marriage (20 years or more) will result in a 50/50 division of marital property. However, there is no "magic" number of years you have to be married before the Judge will automatically divide the marital property 50/50.

(2) Marital Misconduct or Fault. The law allows the Judge to take into consideration whether or not your spouse was "at fault" for the break-up of your marriage. However, this will usually not lead to a huge award one way or the other. Marital fault does not justify a severe penalty in the division of marital property. Marital fault is only one factor the court is required to consider in determining the division of marital property.

(3) Contributions of the Parties. In making a decision regarding the division of property, the Judge will consider your contribution to the acquisition of marital property and your spouse’s contribution. This is a very important factor. There are two types of contributions: direct contributions and indirect contributions. Actual money earned during the marriage is an example of a direct contribution. Staying home to take care of the children while your spouse works is an example of an indirect contribution. Many times (especially with long marriages) the Judge will divide the marital property 50/50 where one spouse has contributed significant indirect contributions to the marriage and the other spouse has contributed most of the direct contributions to the marriage.

(4) Income of Each Spouse. The Family Court will also consider your income, your earning potential, and your opportunity for future acquisition of capital assets. If one spouse is capable of earning more money than the other spouse, the Judge may take this into consideration when dividing marital property.

(5) Health of Each Spouse. Physical health and emotional health of both you and your spouse are factors in the division of marital property.

(6) Need for Training and Education. The Judge has the power to consider your need for additional training or education, before the Family Court makes the final division of marital property.

(7) Non-marital Property of Each Spouse. The Family Court may take into consideration the amount (if any) of non-marital property in your possession before dividing the marital property. In an actual Family Court case, one spouse had a pension that was non-marital property. The other spouse had no non-marital property. The spouse with no non-marital property was allowed to keep some extra marital property in order to pay for education.

(8) Retirement Benefits. Your retirement will be taken into consideration before marital property is divided.

(9) Existence of Spousal Support Award. Whether or not you or your spouse will receive alimony is a factor to be considered.

(10) Use of the Marital Home. If you or your spouse is awarded the marital home to take care of children, then the Judge may take that fact into consideration when dividing the remaining marital property. In fact, the Family Court has the authority to permit the custodial parent to continue living in the marital home (while still jointly titled) for a period of time so that the children will not be without a home. Usually the Judge will immediately award the marital home to one spouse or order that it be sold and the proceeds divided. It is rare for a Judge to make such an order, but it is possible.

(11) Tax Consequences. Before making a final division of marital property, the Judge must consider the tax consequences to you and your spouse as a result of the division of marital property.

(12) Support Obligations. The judge is also supposed to consider the support obligations that either spouse may have from a prior marriage.

(13) Encumbrances on the Property and Other Debts. Not only is property divided, but the Family Court will also divide debts. The Judge will also consider any liens that are attached to any particular item of marital property.

(14) Child Custody Obligations. The Judge will consider child custody arrangements and obligations at the time of the order.

(15) Other Factors. Finally, the Family Court Judge is allowed to consider any other relevant factors that would contribute to a fair division of marital property. This factor is a "catch-all" that gives the Judge discretion to use any other information that is relevant.


"How Is Marital Property Actually Divided?"

The Judge can use any reasonable method to divide marital property. Generally, the goal of the Judge is to sever all joint interests in the property as completely as possible. All issues between you and your spouse should be resolved at the end of the case. Disputes and irritants should not linger so that you and your spouse have to go back to court again in the future. If you and your spouse own a business, the Judge will not leave you and your spouse co-owners of the business after the divorce.

The method used by the Judge to divide marital property cannot be arbitrary. The Judge will not simply number all the "stuff" accumulated during the marriage, and give the even numbered items to you and the odd numbered items to your spouse.

The Family Court has the power to order that marital property be sold and the proceeds divided in order to achieve a fair division of marital property. The Judge can also distribute between you and your spouse the actual items of marital property. This is called an "in-kind" distribution. In South Carolina, an in-kind distribution, where feasible, is preferred over a sale of marital property. In an actual Family Court case, the Judge gave the husband the marital home, the marital business, one car and his jewelry. He gave the wife the other car and her jewelry. He then ordered the household goods sold at public auction because the husband and the wife had not been able to agree on values or a method of distribution. He finally ordered the husband to make up the difference to the wife in cash.


"How Is Retirement Divided?"

There are several ways to divide retirement accounts. One way is to allow one spouse to keep his or her retirement and award the other spouse other assets of marital property. However, this only works if there are enough marital assets to "go around." If the actual retirement account itself has to be divided, the Family Court will issue a special order called a "Qualified Domestic Relations Order." Lawyers and Judges commonly call this type of order a QDRO (pronounced "Quadro").

There are several types of retirements. A pension is a promise by a company to pay a certain amount of money each month to the retired employee. There is no "account" where all the money is "sitting." The pension generally stops after the retired employee dies. If your spouse has a pension, then you will not get "your share" until your spouse is eligible to begin receiving his or her pension payments.

Another type of retirement is a 401(k) or an Individual Retirement Account (I.R.A.). This type of retirement account has actual funds presently available in an account. If the Judge divides a 401(k), then you will actually receive your share of your spouse’s 401(k) at the time of the divorce. You must then "rollover" your share into your own I.R.A. If you don’t, you will have to pay severe penalties to the I.R.S.

There are additional special rules for dividing the retirements of state and federal employees as well as military service members. Be sure that your attorney has experience handling the division of these types of retirements.

This Webpage only "scratches the surface" concerning division of marital property. Only a licensed, qualified attorney who practices in the Family Court can adequately address your individual needs and questions.