Divorce can involve many difficult decisions, and one of the most complex aspects is determining how assets and debts will be divided. In South Carolina, the division of assets in divorce is governed by a legal framework known as equitable distribution. This means the court divides marital property in a way that is considered fair, though it may not always result in an equal 50/50 split.
Understanding the difference between marital property and separate property is one of the most important factors in divorce property division. How an asset is classified can significantly impact who ultimately receives it during the divorce process.
If you’re facing divorce or have questions about your rights, consulting an experienced family law attorney can help you better understand how marital property division may apply to your unique situation.
Marital vs. separate property in South Carolina: What’s the main difference?
When it comes to divorce property division, the first step is determining whether assets are considered marital property or separate property.
South Carolina courts follow equitable distribution laws when dividing property. This means the court identifies which assets are marital and then determines how to divide them fairly based on several factors, such as the length of the marriage, each spouse’s contributions, and the financial circumstances of both parties.
Only marital property is subject to division during a divorce. Separate property generally remains with the spouse who owns it.
What is considered marital property in South Carolina?
In general, marital property includes assets and debts acquired during the marriage, regardless of whose name appears on the title or account.
Examples of marital property commonly include:
- Income earned by either spouse during the marriage
- Homes or real estate purchased while married
- Retirement accounts or pensions accumulated during the marriage
- Investment accounts or brokerage portfolios
- Vehicles purchased during the marriage
- Businesses started or grown during the marriage
- Household property and personal belongings
- Debts incurred during the marriage
Even if an asset is titled in only one spouse’s name, it may still be considered marital property if it was acquired during the marriage. Because these distinctions can be complex, we recommend working with a family law attorney experienced in division of marital property during divorce proceedings.
What is considered separate property in South Carolina?
Separate property refers to assets that belong to one spouse individually and are typically not divided in a divorce.
Common examples of separate property include:
- Property owned by one spouse before the marriage
- Inheritances received by one spouse individually
- Gifts specifically given to one spouse
- Property excluded through a valid prenuptial or postnuptial agreement
However, separate property does not always remain separate. In some situations, it can become marital property through legal concepts such as commingling or transmutation. For example, if separate funds are mixed with marital funds or used for marital purposes, the court may determine that part of the asset has become marital property.
What happens to property owned before marriage in SC?
Property owned by one spouse before the marriage is generally considered separate property in South Carolina. This means the spouse who originally owned the property may retain ownership after the divorce. However, certain circumstances can cause premarital property to become partially or fully marital.
For example, the court may consider property marital if:
- The asset increased in value due to the efforts of both spouses
- Marital funds were used to maintain or improve the property
- The property was retitled in both spouses’ names
- Separate assets were commingled with marital property
Consider these common scenarios:
- One spouse owned a home before marriage, but both spouses contributed to the mortgage and maintenance during the marriage.
- One spouse started a business before marriage, but it significantly grew due to the work and contributions of both spouses.
In these cases, the court may determine that at least a portion of the asset’s value is subject to divorce property division.
Who gets the house in a divorce in South Carolina?
The marital home is often the most valuable and emotionally significant asset involved in a divorce. There is no automatic rule that determines who will keep the home. Instead, the court evaluates the circumstances of the marriage and the needs of each spouse.
Possible outcomes for a home in a divorce include:
- One spouse keeps the home and buys out the other spouse’s share
- The home is sold and the proceeds are divided between both spouses
- One spouse temporarily remains in the home, particularly if children are involved
Several factors may influence this decision, including:
- Child custody arrangements and the children’s stability
- Each spouse’s financial ability to maintain the home
- Each spouse’s financial and non-financial contributions to the property
Can my spouse take my house if I owned it before marriage in South Carolina?
Unfortunately, owning a home before marriage does not automatically guarantee that the property will remain entirely separate during divorce. In some cases, the house may become partially marital property depending on how it was treated during the marriage.
Situations that may change the classification include:
- Mortgage payments made using marital income
- Major renovations or improvements funded by marital assets
- Adding your spouse’s name to the property title
When these factors occur, a court may determine that a portion of the home’s equity is marital property and subject to division. Because these cases often involve detailed financial and legal analysis, consulting with an experienced family law attorney can help you better understand your rights and options.
What assets are untouchable in a divorce?
While many assets are subject to division during divorce, some property is typically not divided by the court.
Examples of assets that may remain separate include:
- Inheritances that were kept separate from marital finances
- Gifts given specifically to one spouse
- Premarital property that was never commingled
- Assets protected through a valid prenuptial agreement
However, the classification of assets can vary depending on how they were handled during the marriage. Even assets that initially qualify as separate property may become marital if they were mixed with marital funds or used for marital purposes.
Because every divorce is unique, the outcome often depends on the specific facts of each case.
Contact our experienced family law attorneys in Beaufort, SC
Divorce and property disputes can have lasting financial and emotional consequences. Understanding the difference between marital and separate property is an important step in protecting your financial interests and ensuring a fair outcome.
If you’re facing divorce or have questions about the division of assets in divorce in South Carolina, our experienced family law team at Harvey & Battey is here to help. We provide trusted legal guidance during some of life’s most challenging moments. Family law attorney J. Samuel Scoville and his team at Harvey & Battey work closely with you to develop strategies that protect your rights and help you move forward with confidence.
Harvey and Battey is a full-service law firm with more than 100 years of combined experience serving Beaufort and the Lowcountry. We are committed to building long-term relationships with our clients and being “your law firm for life.”
If you would like to discuss your situation with our experienced family law team, contact us today by scheduling your consultation below.