In South Carolina, property is divided “equitably” after a divorce. The term “equitable” is largely a subjective determination made by the family court based upon a number of apportionment factors set forth by the South Carolina Code of Laws. We will elaborate upon these factors here. The amount of weight given to each factor is up to the discretion of the court, and is determined on a case-by-case basis.
Length of Marriage
The court will consider 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.
Fault Grounds or Absence Thereof
The family courts in South Carolina can consider marital misconduct or fault of either or both of the parties, whether or not such fault was used as a basis for the divorce, if the misconduct affects or has affected the economic circumstances of the parties or contributed to the breakup of the marriage.
Value of the Marital Property
In valuing the marital property, the court will consider the contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property. This includes the contributions made by a spouse acting as homemaker. The quality, in addition to the quantity, of spousal contributions is important to the courts’ evaluation.
Present Income and Potential to Earn
The court will consider the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets. A spouse that has assumed the role of homemaker during the marriage may, in the eyes of the court, have the ability to earn their own money once the marriage is over, and this will affect the amount awarded to that spouse.
It also follows that the court will consider the need of either spouse for additional training or education in order to achieve their maximum earning potential after the marriage has ended, and may make a monetary award in order to fund such training.
The court will evaluate the mental and physical health of each spouse in determining their potential to become self-sufficient.
Nonmarital Property of Each Spouse
The court will consider any property that a spouse had before the marriage, or was gifted during the marriage and has not become marital property, in order to perform an equitable distribution.
Vested Retirement Benefits
The court is interested in the existence or nonexistence of vested retirement benefits for each or either spouse when performing equitable distribution.
The court will be interested in any prior separate maintenance or alimony awards to either spouse.
The Family Home
The court must determine who will take possession of the family home after the marriage has ended. This determination is dependent on custody of any marital children, whether or not the home will be awarded outright to one spouse or the other, or whether just the right to live in the marital home for a certain amount of time (until the youngest child turns 18, for example) will be granted.
The court takes into consideration any tax consequences to either party as a result of any particular form of equitable distribution of property.
Extramarital Support Obligations
The court always considers the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons. If a spouse is already paying child support for children conceived prior to the marriage, this will affect the amounts owed once the marriage at issue has ended.
Liens/Encumbrances on the Property
While the assets themselves must be equitably divided in a divorce, so too must any liens, debts and other obligations that were incurred by the parties during the course of the marriage.
The court will consider how child custody has been determined at the time of distribution.
And of course, no statute would be complete without a “catch-all” provision. Because each family law case is unique and highly specific to the parties involved, the court must have the authority to consider any factor that they determine affects the equitable nature of the distribution.
Contact Our Family Law Attorneys Today
If you and your spouse are considering divorce, it is important to consider how marital property and other assets will be distributed by the court. Please contact our family law attorneys at Ayers Family Law, LLC today for a consultation.