As family law attorneys in Charleston, SC, we’ve been asked whether South Carolina is a community property state. The short answer is “no.” However, South Carolina is called an “equitable division,” sometimes referred to as a “separate property,” state. In most long marriages, the split will not be far from 50/50. In shorter marriages, it is more likely to depend on a number of factors. In this article, we explain the difference between a community property state and an equitable division state, how property is divided under South Carolina’s equitable division rules, and how to figure out how your property will be split.
What is the Difference Between a Community Property State and an Equitable Division State?
A “community property state” considers most property acquired during the marriage to be jointly owned by both spouses. Generally, the entire marital estate will be divided equally between the parties, although every state is a little different. California is a strict community property state where the division of property is 50/50 by statute. The division should be based on value. So, if one spouse takes a house that has $50,000 in equity, the other spouse can take $20,000 in savings, $25,000 in retirement, and a $5,000 paid-off vehicle to balance this equation. However, the debt may still be divided on something besides a 50/50 basis.
In an “equitable division state,” such as South Carolina, most of the marital property is considered the “separate property” of the spouses. It does not matter who the property is titled or deeded to, or whose name an account is in. All that matters is whether the property is marital or non-marital. We explain how it is determined whether property is marital or non-marital here.
If you are getting a divorce in South Carolina, you can basically forget the term “community property” because it will not have an impact on your case at all.
How Is Property Divided Under South Carolina’s “Equitable Division” Rules?
The family court judge will apply a series of factors that are listed by statute in determining whether your property is marital or non-marital:
(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 family court action
(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;
(3) the value of the marital property, whether the property be within or without the State.
(4) the contribution (and the quality of 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;
(5) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;
(6) the health, both physical and emotional, of each spouse;
(7) the need of each spouse or either spouse for additional training or education in order to achieve that spouse’s income potential;
(8) the non-marital property of each spouse;
(9) the existence or nonexistence of vested retirement benefits for each or either spouse;
(10) whether separate maintenance or alimony has been awarded;
(11) the desirability of awarding the family home as part of equitable distribution or the right to live there for reasonable periods to the spouse having custody of any children;
(12) the tax consequences to each or either party as a result of any particular form of equitable apportionment;
(13) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;
(14) 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;
(15) child custody arrangements and obligations at the time of the entry of the order; and
(16) such other relevant factors as the trial court shall expressly enumerate in its order.
How Do I Figure Out How the Split Will Be in My Divorce in South Carolina?
It is best to consult with a South Carolina attorney who has family court experience. While no lawyer can say with certainty how the property will be split, an experienced lawyer can often at least give you an estimated window of what to expect. Ultimately, either you and your spouse will agree on how to split the assets, or a family court judge will decide for you at a trial. How property is split by the family court depends on the nature of the property. For real estate, usually either the property is sold and the proceeds are split, or one spouse does a refinance to buy the other one out and remove him or her from the mortgage. For financial accounts, they can actually be divided in whatever portion is needed. For household belongings and furniture, it is often best if you and your spouse decide between yourselves who will take what. Just don’t forget like things like jewelry, tools, guns, art, and other items likely carry more value than things like dishes or towels, or even televisions in some cases.