When a couple divorces, any assets or property acquired during the marriage have to be divided. States do this in two main ways, community property and equitable distribution. South Carolina’s marital property laws are, like the majority of states, equitable distribution laws.
Spouses in South Carolina have a right to all marital property. Marital property is all the real and personal property acquired by the parties during the marriage and owned at the date of filing for divorce. It doesn’t matter if the family home bought during the marriage in only one spouse’s name; the other spouse also has a right to it.
However, the court can’t divide non-marital property. Non-marital property is property that was acquired by a spouse 1) before the marriage or 2) by inheritance or gift to the spouse alone during the marriage, or 3) is excluded from marital property by a written contract or prenuptial agreement. If excluded by a prenup, it’s most likely to be considered fair and equitable as long as voluntarily signed by both parties while represented by separate counsel, and with a full financial disclosure to each other on income, debts, and assets, as required by family court rules.
The factors South Carolina judges look at to determine the distribution of marital property are:
The court can order a former spouse to sign and deliver any deed, sale, mortgage change, or anything else necessary to carry out the equitable apportionment that was ordered. Transfers of stock, public or private sales of assets, etc. can all be ordered, if necessary.
The following table explains more of South Carolina’s marital property laws.
|Code Sections||South Carolina Code Title 20: Domestic Relations, Chapter 3: Divorce, Article 5: Equitable Apportionment of Marital Property|
|Community Property Recognized?||No, South Carolina isn’t a community property state. Marital property is divided by the court in an equitable manner as described above.|
|Dower and Curtesy||Dower and curtesy are common law legal concepts that have generally been abolished in the U.S. today. Dower is a life estate in her husband’s real property upon his death. Curtesy is the husband’s interest in his wife’s real property (solely owned or inherited) upon her death, if they bore a child who could inherit the property.
Dower hasn’t been available for a divorcing wife in South Carolina since the 1940s. Also, in 1985 dower and curtesy tenancy interests in property were abolished.
If you’re divorcing or planning to divorce in South Carolina, you should speak with an experienced local divorce lawyer about your rights to marital property. By agreeing to a division of property through negotiating with your spouse or during a mediation, you may be unnecessarily waiving your rights to some property or assets. However, if you are both happy with the result, there’s no need to prolong the divorce proceeding.
Note: As state laws change constantly, it’s important to confirm the accuracy of the laws you’re researching by either conducting your own research or contacting a knowledgeable attorney.
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