The ending of a relationship often involves the division of assets and debts accumulated during the marriage. If both spouses cannot reach a property settlement agreement on their own, the court will divide the marital property and debts according to the principle of equitable distribution. A fair division of property requires the following:
Understanding marital versus non-marital property: South Carolina has laws that determine what is and is not considered marital property. Those laws can be changed by a pre-nuptial or post-nuptial agreement executed by the couple involved. As a general rule, marital property includes all property or assets accumulated during the course of a marriage. Despite what many clients have heard (or Googled), this also involves property gained individually, not just as a couple. Marital property generally includes income, houses, cars, pensions, retirement accounts, cash on hand and anything else owned by the couple. Meanwhile, non-marital property is not subject to the divorce litigation and includes any asset or income accumulated by a person before the marriage, which has been solely owned or kept in that person’s name. To complicate matters further, even though property may be considered separate, a court may still consider the increase in value of the separate property to be part of the marital estate.
Understanding factors used by the court: If the court has to divide property, they will consider factors including, but not limited to the length of the marriage, the source of the property, the parties needs, each parties earning ability, the needs of any children and each party's contribution towards the acquisition of the property. In South Carolina, the cause (or fault) of the divorce is also a consideration. As a result of these factors, it's a mistake for couples to assume they will each receive 50% of the marital assets.
Knowing how to handle debt: Just like assets, debts will be designated as either marital or non-marital and are part of the equitable distribution process. Most debts acquired during the marriage will be considered marital debt regardless of whose name they are in. Debt incurred before the marriage is likely separate property. However, there are exceptions to both of these rules.
Property and debt division can be a contentious issue. We have the tools and skills (legal, accounting, property valuation,etc.) to handle everything from complex, high-asset property settlements to cases involving significant debts. You need to know your rights under equitable division if you're considering a divorce. Contact us today for a consult so we can provide you with information specific to your case and empower you to make the best decisions!