The division of marital assets can easily become one of the more contentious and emotional aspects of a divorce. Who gets the house, the money, the cars? Who shoulders the debt?
Whenever possible, it's worth the effort to negotiate and reach a written agreement that you can provide to the court explaining how you want to divide the property.
But, when the parties can't agree, the court will divide your assets. Like most states, South Carolina uses a system called equitable division, which means the property will be divided in a way that's ... fair (according to the court, not you).
What Is Marital Property in SC?
The marital estate is made up of all assets and debts that you and your spouse acquired during your marriage. Assets can include homes, bank accounts, retirement benefits, 401k, vehicles, furniture, artwork, frequent flyer benefits, and timeshares. Debts can include credit cards, lines of credit, and IRS debt.
The court must decide what is marital property and what is non-marital property. In general, non-marital property is anything acquired by one party before the marriage or anything acquired by one party through inheritance or as a gift.
However, there are exceptions. For example, if you bought a home before you were married, and your spouse then helped pay the mortgage, it is now marital property and is subject to division by the court.
Likewise, if you received an inheritance from your grandmother and deposited it into an account held jointly with your spouse, it is subject to equitable division.
Why It is Important to Have a Separation Agreement ASAP
The marital estate is not secure until a separate support and maintenance agreement has been reached by the parties - any assets or debts acquired before the agreement is filed may get added, or subtracted, from the marital estate.
If your spouse goes to Vegas and drops a few grand at a casino before the separation agreement is filed, that money is gone. So, once you know you want a divorce, talk to your SC divorce attorney as soon as possible about negotiating a separate support and maintenance agreement.
How Does the Court Decide What's Fair?
If you and your spouse can't reach an agreement, the court decides what's equitable.
Family court judges look at several factors to determine how to divide marital assets, including:
- How long you've been married;
- The value of marital property, which is determined using appraisals, estimated resale value, expert opinion, and other means;
- Income and health of each spouse;
- Child custody arrangements;
- Whether either spouse is being awarded alimony or maintenance payments;
- The value of either spouse's non-marital property;
- Whether either spouse has support obligations from an earlier marriage; and
- Marital misconduct of either spouse.
If you considering separation or divorce, contact your SC divorce attorney immediately. Your divorce lawyer on the Axelrod team will help you to determine what is marital and non-marital property, negotiate with your spouse whenever possible, and fight for your property and financial security when an agreement cannot be reached.
Call Axelrod and Associates now at (843) 916-9300 or send us a message through our website to find out how we can help.