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Property Division

CHARLESTON EQUITABLE DISTRIBUTION ATTORNEY JAY MCMILLIAN

HOW WILL A SOUTH CAROLINA FAMILY COURT DIVIDE PROPERTY DURING A DIVORCE

By law, South Carolina Courts are authorized to do an “equitable distribution” of all property, real and personal, acquired by either spouse during the marriage from a source connected to the marriage.

Reading that may have caused you to scratch your head a little . . . so let's explain property division its two basic parts. What is “equitable distribution” and what is “marital property.”

WHAT IS EQUITABLE DISTRIBUTION

Equitable Distribution is a way, more or less, or saying that you and your spouse will split all the marital property 50 / 50. Sometimes the percentage may be skewed a little in one direction or the other but that is the basic goal. Equitable distribution involves a 4 Step Process:

  1. Determine what property will be divided (what is the marital property)
  2. Determine the value of each item of marital property
  3. Determine what portion of each item of property the spouse shall take

Ex: Instead of giving Husband and Wife each 50% ownership of a home and a retirement account, the Family Court may let the Husband keep the retirement account and the wife the home if they are of a similar value.

  1. Determine who gets what specific items

In essence equitable distribution is a fancy way of saying “How do we split marital assets in half.”

WHAT IS MARITAL PROPERTY CONSIDERED TO BE IN SOUTH CAROLINA

In most cases, what constitutes “marital property” is the main point of contention in a property division incident to a divorce in South Carolina. Marital property is defined as all real property (land / home) and personal property that:

  1. Was acquired by the parties during marriage, regardless of how title is held
  2. Owned as of the date of filing or the commencement of marital litigation

In addition to the textbook definition of marital property listed above, marital property may also be expanded to include any non-marital property that appreciated in value as a result of efforts of either spouse during the marriage or by contribution from marital assets. Also, gifts between spouses are considered marital property, and most importantly, ALL vested and unvested benefits and funds accrued during the marriage in a retirement account, annuity, or the like is considered marital property.

WHAT ABOUT THE DEBTS INCURRED DURING THE MARRIAGE

Much like assets being divided, more or less, along a 50 / 50 line, a South Carolina Family Court will also divide debts in the same manner. It is assumed that any debt incurred during the marriage is a marital debt, no matter which party may be individually named on the debt.

HOW DOES ALIMONY EFFECT PROPERTY DIVISION IN A SOUTH CAROLINA DIVORCE

A Family Court may determine equitable distribution / property division in a case prior to examining whether an alimony award will be given. In essence, the “stuff” from the marriage can be split up prior to the court jumping to the next question of awarding alimony as a bonus.

WHAT FACTORS ARE CONSIDERED IN THE PROPERTY DIVISION IN SOUTH CAROLINA

A South Carolina Family Court may consider all of the following factors when making a ruling on property division in a divorce proceeding. Each Family Court judge is allowed to weigh these factors at their own discretion:

  1. Is it desirable to let one party keep the family home (best interest of children)
  2. Does a spouse need additional education or training
  3. Vested retirement benefits of each spouse
  4. Contribution to marriage by each spouse to include homebound duties
  5. Support being received by either spouse from a previous marriage
  6. Has alimony been awarded
  7. Length of marriage
  8. Child custody arrangement
  9. Physical and emotional health of each party
  10. Tax consequences of divorce
  11. Each party's specific financial situation
  12. Fault and misconduct of a party that led to the divorce
  13. Marital debts
  14. Non-marital property of each spouse

DO I NEED AN ATTORNEY IN MARITAL LITIGATION INVOLVING THE DISTRIBUTION OF MARITAL PROPERTY

The answer is . . . YES YES YES!! In my experience, this specific area of Family Law requires the most meticulous attention to detail and an enormous dedication to the fine print and negotiation. This is an area of Family Law rife with misdirection and miscalculation on the part of potential clients. Your potential for a valid and fair outcome is increased many times over by having an attorney participate in the process of equitable distribution. Please allow me the opportunity to protect your lawful property rights and insure that you receive a full accounting and disclosure of all assets that you may be entitled to share. Big firm service with a small firm touch, allow me to help you master this process.

The McMillian Law Firm

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Attorney Jay McMillian operates a solo practice with an emphasis on two core principles. First, to provide competent legal advice in the areas of Auto Accident and Personal Injury Law to the people he is proudest to serve, the people of the South Carolina Low Country. Second, to provide the most personal and intimate service to each and every client and give them the attention and compassion that they deserve while going through the stress and strain of negotiating or litigating an injury claim. If you live in Charleston, Summerville, Mount Pleasant, Goose Creek, James Island, Walterboro, Moncks Corner, and you or someone you love has been injured by the negligence of another, please call Jay at The McMillian Law Firm today.

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