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Is Property Divided 50/50 in a Divorce in South Carolina?

Is Property Divided 50/50 in a Divorce in South Carolina?
Axelrod & Associates, P.A.

Property is not necessarily divided 50/50 in a divorce in South Carolina.

Although the division of property usually begins with a 50/50 split, there are many factors that the court may consider that could change the split including the parties’ financial situations, any agreements the parties have reached before their final hearing, and other factors like marital misconduct.

In this article, we will discuss how marital property is divided in SC and why marital property is not divided 50/50 in a divorce, including:

  • How the division of marital property works in a community property state,
  • How the division of marital property works in an equitable division state (SC), and
  • The factors that the family court will consider when deciding how marital property should be divided.

Property is not Divided 50/50 in a Divorce in SC

Many people assume that property is divided 50/50 in a divorce, because that is what you see in movies, and there is no shortage of jokes about spouses “wanting half.”

In a community property state, property may be divided 50/50, but, in equitable division states like SC, the family court can change that 50/50 split based on various factors.

Community Property States with a 50/50 Division of Marital Property

In community property states, the courts will split all marital assets 50/50. The court 1) identifies the marital property and the parties’ separate, non-marital property, 2) values the marital property, and 3) divides the marital property equally while each spouse keeps their separate, non-marital property.

There are currently nine community property states including:

  • Arizona,
  • California,
  • Idaho,
  • Louisiana,
  • Nevada,
  • New Mexico,
  • Texas,
  • Washington, and
  • Wisconsin.

Five additional states – Alaska, South Dakota, Tennessee, Kentucky, and Florida – allow spouses to “opt-in” to use community property rules if they meet the requirements.

SC is an Equitable Division State – Not Necessarily a 50/50 Split

South Carolina, like most states, is an “equitable division” state, which means that property is not always divided 50/50 in a divorce here.

In most long marriages, the split is close to 50/50, but there are many factors that the court can consider to make the split fair – and fair does not always mean 50/50….

Why Isn’t Property Divided 50/50 in a SC Divorce?

In South Carolina, the court will 1) identify the marital and non-marital property, 2) value the marital and non-marital property (the value of the non-marital property is one of the factors the court can consider in the equitable division), and 3) equitably divide the marital property.

There are 15 factors listed in SC Code § 20-3-620 that the family court must consider when dividing the marital assets, including:

(1) 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 or separate maintenance or other marital action between the parties;

(2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:

(a) entry of a pendente lite order in a divorce or separate maintenance action;

(b) formal signing of a written property or marital settlement agreement; or

(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

(3) the value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;

(4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;

(5) the health, both physical and emotional, of each spouse;

(6) the need of each spouse or either spouse for additional training or education in order to achieve that spouse’s income potential;

(7) the nonmarital property of each spouse;

(8) the existence or nonexistence of vested retirement benefits for each or either spouse;

(9) whether separate maintenance or alimony has been awarded;

(10) the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;

(11) the tax consequences to each or either party as a result of any particular form of equitable apportionment;

(12) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;

(13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;

(14) child custody arrangements and obligations at the time of the entry of the order; and

(15) such other relevant factors as the trial court shall expressly enumerate in its order.

Although the court may begin its analysis with a 50/50 split, as you can see, there are many opportunities to argue that one party or the other should receive more (or less) than half of the marital assets.

You should not assume that your property will be divided 50/50 until you have met with your attorney and discussed which, if any, of these factors will apply in your case.

Got Axelrod?

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 843-258-4478 or send us a message through our website to find out how we can help.

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