Is South Carolina a Community Property State?
Dividing marital property is one of the more complicated parts of a divorce. Although usually less emotional than a child custody fight, property division still makes a big difference in a person’s overall satisfaction with their divorce. Those who receive less property than expected often feel intense emotional distress. They might also feel anger.
At Surasky Law Firm, one question we receive is whether South Carolina is a community property state. The answer is “no.” South Carolina is an equitable distribution state with several key differences from community property states like Texas. Our Aiken, SC property division lawyer describes in detail the differences.
What Property is Subject to Equitable Division?
People bring all sorts of property into their marriage. They might also inherit things or receive gifts while married. But not all property they own at divorce will qualify for division. Instead, the general rule is that any property you obtain while married is “marital,” whereas any property you receive while single will be your “separate” property. You can typically leave your marriage with your separate property, while marital property gets divided. This is often the rule in community property states, also.
There are exceptions to the general rule:
You might have a prenuptial agreement that characterizes some property as “separate” or “marital.” A common example: small business owners agree that their business assets are separate, regardless of when they obtained them.
Inheritance or gifts you receive while married usually qualify as separate property unless it’s a gift from your spouse or a gift to both of you.
Some separate property can lose its character and become marital. For example, you might have commingled cash obtained while single in the same bank account with wages you earned while married. After years it’s no longer possible to identify how much is your separate property.
Marital property includes all types of assets obtained while married, including:
Savings and checking accounts
Wages, bonuses, and commissions
Retirement accounts
Investments
Real estate
Motor vehicles
Anything you bought with your wages
Equitable Division of Marital Assets
In community property states, marital assets are divided equally, 50/50 in most cases. Some community property states allow some wriggle room, but a 50/50 division is often automatic.
Equitable division states like South Carolina are different. A judge will decide how to divide your property guided by what’s “fair.” That might sound like a vague term, but our law does provide some factors to consider:
Each spouse’s contribution to the marital property
The length of the marriage, as well as each spouse’s age
Each spouse’s income
Each spouse’s health
Whether maintenance or alimony is awarded
Marital misconduct, such as infidelity which leads to the breakup of the marriage
Each spouse’s separate property
Other factors
No single factor is more important than others. For example, a judge certainly does consider who contributed money to pay for the mortgage on the family home. But that doesn’t mean the spouse who pays the most will receive the property. One spouse could make non-financial contributions, such as yard work, maintenance, and cleaning. A spouse who doesn’t work outside the home could nonetheless have raised 3 kids. A judge will consider these factors.
Determining the Split in Your Marriage
How do judges divide property in practice? Based on our experience, a judge is more likely to divide it 50/50 when you have been married a long time. After 15 years or so, a couple’s lifestyle is so intertwined that it’s difficult to separate each spouse’s contributions. Spouses who have pooled assets for over a decade are really one financial unit. Each has contributed something meaningful to the marriage.
Things are different with shorter marriages. Imagine you were married for only six months. The spouse who has paid all six mortgage payments is more likely to get the house in divorce. Of course, the shorter the marriage, the less marital property most couples have. Marital fault plays a real role in property distribution. A spouse who committed adultery might receive less marital property. We have seen 55/45 divisions in some cases.
It is hard to say how a judge will divide your marital property. In a consultation, we can take a closer look at your situation. We can also help you negotiate a property settlement agreement. You do not have to leave it up to a judge to decide how to divide marital property. Instead, you can always agree on how to divide assets yourself and create a binding agreement signed by each spouse.
Debts Are Divided, Too
We have spoken mostly of assets, but many couples have debts. They also are divided equitably. Judges will consider who took out the debt and the purpose of the loan. For example, many couples are carrying mortgage debt. The spouse who gets the house might also get the mortgage.
In other cases, one spouse secretly acquires debts due to gambling or drug addiction without the other spouse knowing. A Judge is much less likely to divide debt between two spouses in that situation.
A word of caution about debt division: the lender can usually sue whoever signed for the loan. That is true regardless of who a judge assigns the debt to in divorce. Imagine that you and your spouse have a joint credit card with $10,000. When you divorce, your spouse takes over the $10,000 but never makes a payment on it. Because your name is on the card, the bank can sue you for nonpayment of the debt and tank your credit.
Call Our Aiken Property Division Lawyer
Stephen Surasky is an experienced family lawyer representing clients in South Carolina divorces. His law firm is available to schedule a meeting to review the division of marital property. This complex issue requires careful planning about what assets you want to leave with and your financial goals moving forward. No two clients are alike, and an in-depth meeting is usually helpful in developing a strategy. Give our law firm a call to schedule a time to meet.
