While divorce is an often-uncomfortable process that can be unpleasant for the parties involved, it can be important to understand, especially for those going through it. In South Carolina, there are a number of factors that can influence how divorce proceeds. To better understand the subject, we’ll dive into some of these factors and explore some of the topics that are important in a South Carolina divorce—such as property distribution, and the numerous factors that a court might consider in a Greenville and Spartanburg, South Carolina.
South Carolina Divorce Laws
First, it’s necessary to understand some of South Carolina’s family law. For example, what does it take to get a divorce in South Carolina? What are some reasons an individual or their lawyer can file for a divorce?
South Carolina outlines 5 different grounds for divorce, over which divorces can be filed. These include:
- Desertion (for a period of one year)
- Physical Cruelty
- Habitual Drunkenness
- Separation (For a period of at least a year)
In addition to the laws in South Carolina regarding grounds for divorce, it’s important to understand that South Carolina is not a community property state. Instead, South Carolina is an equitable distribution state.
In states that default to an equitable distribution model, assets are not divided down the middle. Instead, the court will typically take a number of factors into consideration in attempting to determine a division of assets that is most equitable to both parties. These factors include things such as the duration of the marriage, earning power of divorcing individuals, the financial needs of divorcees, if it’s a fault divorce or no-fault divorce, child custody, and many other factors.
Common Factors Considered in South Carolina Property Distribution
So, what are some of these factors that are commonly taken into consideration by a family court when two individuals divorce in South Carolina? South Carolina Code 20-3-620 outlines the factors that will be considered in determining how assets are to be divided. Let’s explore some of those that are frequently important in divorces.
Marital Assets and Liabilities
The first step to understanding property distribution in South Carolina is to understand the difference between marital and nonmarital property. Under South Carolina law, marital property, is, for the most part, that which was obtained within the duration of the marriage. This period ends when the divorce proceeding is legally commenced, either through the proper execution of a separation agreement or filing for litigation. However, there are some notable exceptions, such as property that was acquired as an inheritance, or as a gift from someone other than an individual’s spouse—as well as others.
It’s important to understand that, because, for the most part, the court only has the jurisdiction and authority to distribute marital assets. However, it’s also important to note that there are cases in which an asset may begin as nonmarital but become martial property, through means such as comingling or transmutation. It’s important to consult a family or divorce attorney to determine whether your assets will be considered marital or nonmarital assets in a property distribution case.
Duration of Marriage
The duration of the marriage is an important factor considered in property distribution in a South Carolina. The court may consider the duration of time from marriage to divorce or the court may consider the duration of time between marriage and separation (such as in cases where the parties have been separated for several years but not yet divorced). The court also often consider the ages of the individuals at each of those times.
Contributions to the Marriage and Earning Capacity
Other factors that the court may consider include contributions to the marriage and the respective earning capacities of the individuals. The family court can consider each spouse’s income as well and their potential to earn income, as well as the possibility they’ll acquire assets in the future.
The court can also consider whether each spouse requires additional training or education to achieve their earning potential. Family court judges may consider each spouse’s contributions to the marriage, including if they can determine that one spouse contributed as a homemaker. The court also has the authority to award alimony, which may be considered in determining property distribution as well.
Custodial Parenting Arrangements
Child custody parenting arrangements are often looked at as well due to the “desirability” of awarding the family home, or right to live in it, to the spouse with custody of the children. This does not mean that it will be automatically awarded to a spouse who has custody of the children, but it is a factor that can be considered.
Selling the Home
Property distribution doesn’t always mean each party gets some of the assets. In some cases, the family court might award the home or the right to live in it to one spouse, while other cases may include the home being sold. This can happen if the spouses both agree to sell it or it may happen due to the court ordering the sale—which it has the authority to do if it’s the best route to equitably divide the marital assets.
Buying Out a Spouse
Additionally, one spouse may “buy out” the other spouse in order to retain the home. This can be voluntary should the two spouses agree to a fair value, and it also may be ordered by the court if the court sees it as necessary to equitably divide assets.
There are a number of factors that can ultimately influence the outcome of a divorce and how the court decides to equitably distribute marital assets. While South Carolina courts do not have the jurisdiction or authority to divide nonmarital assets, those that are considered marital assets can be divided as the court sees fit in order to facilitate an equitable property distribution.
Some of the factors that the court may consider include earnings, earning power, contributions of each spouse, custodial arrangements for children, child support, and the duration of the marriage.
As each divorce case is unique, and property distribution can be a highly complex process, it can be important for those going through a divorce to seek legal counsel and representation. An experienced family lawyer can help individuals more effectively navigate the complex process in South Carolina.
If you’re facing a divorce in Spartanburg or Greenville, don’t hesitate to reach out. At Sentinel Law Firm, our experienced attorneys work hard to help our clients protect their rights. To learn more, reach out today to talk about your case.