As Charleston divorce attorneys, we are asked in every case what property is at stake. The short answer is that the family court will be asked to divide the marital property. The family court doesn’t have the authority (or “jurisdiction”) to divide non-marital property.
What is Marital Property in South Carolina?
Marital property is “all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of the marital litigation . . . regardless of how legal title is held.” Essentially, if it was purchased during the marriage, it is probably marital property, and it is on the table in a divorce case.
What is Non-Marital Property in South Carolina?
Property acquired before the marriage is generally considered non-marital property, subject to exceptions as discussed below.
Can Property Acquired During the Marriage Still be Non-Marital Property?
Yes. There are exceptions to the general rule that property purchased during the marriage is marital. Generally, if the property was received by inheritance to one spouse, it is non-marital. Also, if the property was a gift from someone to one spouse, it is non-marital. However, a gift from one spouse to the other, even if made indirectly by way of a third-party, is marital property which is subject to division by the judge.
What If I Receive Property After the Divorce Case is Filed?
Property received after either spouse files a case for divorce or separate support and maintenance might not be marital, even though it was acquired during the marriage. Specifically, after the court issues a temporary order, or after the parties sign a settlement agreement, or after the court issues a final order dividing the property, any acquired property is likely non-marital. Also, if the parties enter into a written contract, subject to strict rules, that property acquired by one spouse will be non-marital, then it can be non-marital, although there are ways for the other spouse to get around this. Always run it by your divorce lawyer before you buy or receive any property during the case.
If Non-Marital Property Increases in Value, is the Increase Considered Marital Property?
No. However, if the increase resulted directly or indirectly from the efforts of the other spouse during the marriage, then the increase might be marital. For example, if the Husband inherits a house during the marriage, it is non-marital, at least initially. If the Wife uses her money and labor to help build a deck in the backyard, the increased value from the deck could be marital.
Can Non-Marital Property Become Marital Property?
Absolutely. When this happens, it is called “transmutation.” Transmutation happens in a number of ways. First, if non-marital property is mixed with marital property so that it is no longer traceable, it becomes marital property. An easy example is where non-marital money is placed into a bank account with marital money, and then after a series of debits and credits, there is no way to know which of the monies are actually left. Second, if property is jointly titled, it can become marital property. So, if Husband owns a house before the marriage, and then during the marriage he puts his Wife on the deed, then the house may become marital. Finally, if the property is used by the couple in support of the marriage or in some other way that establishes that the parties intended to make it marital property, then the non-marital property can be transmuted into marital property. This last form of transmutation is a little trickier to identify and will be decided by the family court judge on a case-by-case basis. Your family court lawyer will help you build your argument as to whether the property was transmuted or not.