Most people have heard horror stories about a spouse who seems to lose everything when he divorces, such as a large portion of his business or an expensive home. However, this type of dramatic property settlement is uncommon. In South Carolina, judges have substantial leeway when splitting property in a divorce, but state law gives them factors to consider before making a decision.
South Carolina is an equitable distribution state, meaning that South Carolina courts divide marital property equitably — though not necessarily equally — between spouses. Though the split may not be exactly 50/50, the division must be fair. If divorcing spouses do not want the court to make property distribution decisions in their case, the spouses can reach agreement on their own. The court can then adopt their agreement as part of its divorce decree, eliminating the need for it to split the couple’s property on an equitable distribution basis.
South Carolina gives judges a list of factors they must consider before issuing a distribution decision, and these factors help the judges focus on the issues South Carolina considers relevant. The factors include the duration of the marriage, ages of the spouses, either spouse’s marital misconduct, income of each spouse, spouses’ health, and any child or spousal support obligations from a prior marriage. No one factor automatically determines a property award. Instead, the court looks at the whole picture of the marriage and can even consider other relevant factors beyond those listed in South Carolina statutes.
Marital Property Vs. Non-Marital Property
Generally, South Carolina courts can only divide marital property in a divorce, not non-marital property. Marital property includes nearly all property acquired during the marriage. Property acquired before the marriage, or by inheritance or gift, is considered the separate non-marital property of the spouse who acquired it, and such non-marital property is typically exempt from division in a divorce. Thus, if a spouse built up a successful business prior to the marriage, it is unlikely the divorce court would divide the entire business. Similarly, the divorce court is unlikely to split jewelry that one spouse inherited during the marriage from a deceased parent. However, the court will divide wages earned during the marriage, as well as assets purchased with those wages.
Commingling and Transmutation
Non-marital property only retains its special character and exemption from division if the spouses keep it separate from marital property. When non-marital property becomes mixed with or is converted into marital property, called commingling or transmutation, courts treat it as marital property and it becomes subject to division. For example, if one spouse sells a home he owned prior to the marriage and deposits that money into a joint checking account which the couple later uses to pay household bills, a South Carolina divorce court could split the money remaining in that checking account as marital property. To avoid such a result, spouses must keep their non-marital assets separate from marital assets.