Divorce is often a complex and emotional process, but understanding the legalities surrounding property division in South Carolina can help make the transition smoother. South Carolina, like many states, follows a system known as Equitable Distribution when it comes to dividing marital assets and debts. This means that the court will divide property in a way that it considers fair, though not necessarily equal. If you are considering or currently going through a divorce in Charleston or elsewhere in South Carolina, it's important to understand how the separation of property works, and how a divorce attorney can help protect your interests.

What Is Equitable Distribution?

South Carolina's laws on property division are based on the principle of equitable distribution, which seeks a fair division of property acquired during the marriage. The court will consider multiple factors to determine what is fair, but this does not always mean a 50/50 split. The goal is to ensure that each spouse receives an equitable portion of the marital estate, based on their contributions, needs, and other relevant factors.

Equitable distribution does not apply to property that is deemed separate property, which is generally not subject to division. Separate property includes assets acquired before the marriage, gifts or inheritances received by one spouse individually during the marriage, and certain other exceptions.

Key Steps in Dividing Property During Divorce in South Carolina

1. Identify Marital vs. Separate Property

   The first step in dividing property in a South Carolina divorce is identifying which assets and debts are considered marital property and which are considered separate property. Marital property includes anything acquired during the marriage, regardless of who holds title or whose name is on the account. This could include real estate, bank accounts, retirement benefits, business interests, and personal property such as cars or furniture.

   Separate property, on the other hand, includes assets acquired before the marriage or by one spouse as a gift or inheritance. If a spouse can prove that an asset is separate property, it will not be subject to equitable distribution.

2. Valuation of Marital Property

   Once the marital property has been identified, it must be valued. This step may require the help of professionals such as appraisers, accountants, or business valuation experts. The value of assets like homes, investments, and retirement accounts can fluctuate, and an accurate valuation is necessary to ensure a fair division.

3. Consideration of Factors for Fair Distribution

   South Carolina courts will consider various factors when determining how to divide marital property. These include, but are not limited to:

   • The length of the marriage: The longer the marriage, the more likely it is that assets will be divided equally or near-equally.
   • The needs of each spouse: A court may award more property to a spouse who is in greater need, especially if they are the primary caretaker of minor children.
   • The contributions of each spouse: This includes both financial contributions (e.g., income) and non-financial contributions (e.g., homemaking, child-rearing).
   • The earning potential of each spouse: The court may consider the financial circumstances and future earning capacities of each spouse when dividing assets.
   • The marital misconduct: While South Carolina is a "no-fault" divorce state, the court may still consider whether one spouse's misconduct (e.g., adultery or abuse) affected the marital estate when making property distribution decisions.

4. Debt Division

   Just as assets are divided, debts accumulated during the marriage (like mortgages, credit card balances, or loans) will also be subject to division. The court will consider which spouse is better able to handle the debt and how it should be allocated in the divorce settlement. As with property, South Carolina law uses the principle of equitable distribution when dividing marital debt.

5. Negotiation and Settlement

   In many cases, spouses can come to an agreement on property division without needing to go to trial. Mediation or negotiation, facilitated by attorneys or a neutral third-party mediator, can be an effective way to settle property division in a manner that works for both parties. Reaching an agreement on your own can save both time and money compared to litigating the matter in court.

   However, if an agreement cannot be reached, the court will step in and decide how to fairly divide the property based on the factors mentioned above.

Special Considerations in Charleston Divorce Cases

Divorce cases in Charleston and throughout South Carolina can have specific considerations, particularly when it comes to real estate or business ownership. For instance, if you or your spouse own a business, it may need to be appraised to determine its value as part of the marital estate. The family home may also have emotional significance, and if one spouse wishes to stay in the home, the court may take that into account when making a decision on property division.

Charleston's local real estate market is known for its dynamic nature, which can affect property values. Whether you are dealing with a historic home in downtown Charleston or a more modern property, the valuation process may require the assistance of experts who are familiar with the region's market trends.

Protecting Your Interests in a Divorce

The division of marital property can have long-lasting financial implications, so it's essential to have an experienced divorce attorney by your side to ensure that your interests are protected. A skilled lawyer can help you:

• Identify and classify your assets and debts.
• Ensure that all marital property is properly valued.
• Negotiate a fair settlement.
• Advocate for your financial needs in court if necessary.

Divorce is a challenging life event, but understanding your rights and obligations regarding property division in South Carolina can give you the confidence to navigate the process. If you are facing divorce in Charleston or anywhere in South Carolina, working with an attorney who is knowledgeable about the state's divorce laws is crucial to ensuring that you achieve a fair and equitable outcome.

Conclusion

The separation of property in a South Carolina divorce is a critical aspect of the legal process that requires careful consideration and expertise. From identifying what is marital property to determining its fair distribution, the decisions made during this phase will impact both spouses for years to come. By consulting with a qualified divorce lawyer, you can ensure that your interests are protected and that you understand every step of the process.

If you are facing divorce and need help with property division, call us today at (843) 314-4202 or through our online form to schedule a consultation. We are here to guide you through the complexities of the process and help you secure a fair and equitable resolution.

Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. For specific legal guidance regarding your divorce or property division, consult with a licensed South Carolina family law attorney.