How Is Property Divided in a Divorce in South Carolina?

As divorce lawyers in Charleston, we are asked in nearly every case, “How is property divided in a divorce in South Carolina?” Spouses want to know who keeps the house, whether a retirement account will be split, what happens to an inheritance, and who is responsible for the credit card debt. South Carolina has a specific process for answering those questions, and the answer is not always an even split.

So how does the family court decide what is marital property, what it is worth, and who receives it? In this article, we explain how property is divided in a South Carolina divorce, including what is marital and nonmarital property, how nonmarital property can become marital, how the court values property, the fifteen factors the court must consider, and how marital debts are divided.

Quick Answer: South Carolina divides property in a divorce through “equitable apportionment,” which means a fair division, not necessarily a 50/50 split. The family court identifies the marital property, which is generally all property acquired by either spouse during the marriage regardless of whose name is on the title, sets aside nonmarital property, values the marital property, and divides it by weighing the fifteen factors in S.C. Code Section 20-3-620. Marital debts are divided as well.

How Is Property Divided in a Divorce in South Carolina?

South Carolina family courts divide property through a process called equitable apportionment. When either spouse asks for it in the divorce pleadings, separate support and maintenance, or another marital action, S.C. Code Section 20-3-620 requires the court to make a final equitable apportionment of the parties’ marital property. In South Carolina, the family court views a marriage, in part, as an economic partnership, and each spouse acquires a vested ownership interest in the marital property during the marriage under Section 20-3-610. When the partnership ends, the court must divide that interest.

To divide property in a South Carolina divorce, the family court works through four steps:

The family court does not have the authority to divide nonmarital property. Under Section 20-3-630(B), the court “does not have jurisdiction or authority to apportion nonmarital property.” That is why the first step, deciding what is marital and what is not, is often the most hotly contested part of a property case.

Is South Carolina a Community Property State?

No. South Carolina is an equitable distribution state, not a community property state. In community property states, marital property is generally divided equally. In South Carolina, the family court divides the marital property in whatever proportions it finds fair after considering the statutory factors. The court will split marital property 50/50 in some cases, but in others, it will give one spouse a greater share because it is equitable. For more on this distinction, see our article, Is South Carolina a Community Property State?

What Is Marital Property in South Carolina?

Under Section 20-3-630(A), 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 marital litigation . . . regardless of how legal title is held.” Essentially, if it was acquired during the marriage and still exists when the case is filed, it is probably marital property and on the table in a divorce case.

Marital property usually includes anything that was acquired by either spouse during the marriage, up until the date of filing in family court, such as:

• cash on hand;
• money in checking, savings, and other financial accounts;
• retirement accounts and pension benefits earned during the marriage;
• the cash value of life insurance;
• stocks, bonds, stock options, and cryptocurrency;
• real estate, including the marital home;
• motor vehicles, boats, and golf carts;
• jewelry (excluding the engagement ring, which is generally a premarital gift);
• businesses and professional practices;
• household contents; and
• any other property of value.

For purposes of whether property is marital, it does not matter whose name the property is titled in. A house titled only in the husband’s name, or a 401(k) held only in the wife’s name, can be marital property if the couple acquired it during the marriage.

What Is Nonmarital Property in South Carolina?

Section 20-3-630(A) lists five categories of nonmarital property. Nonmarital property belongs to the spouse who owns it, and the court does not divide it, although its value is still considered when dividing marital property and deciding alimony. The following table summarizes the five categories:

In addition, under Section 20-3-630(A)(5), any increase in the value of nonmarital property is nonmarital, except to the extent the increase resulted directly or indirectly from the other spouse’s efforts during the marriage. We discuss that exception below.

The statute gives special treatment to prenuptial agreements. A “written contract” includes an antenuptial agreement, which courts presume fair and equitable as long as both parties voluntarily executed it, each was represented by counsel, and the parties provided full financial disclosure of income, debts, and assets as required by the family court rules. For more, see our article on prenuptial agreements in South Carolina. If you received an inheritance during the marriage, our article on whether an inheritance is divided in a South Carolina divorce explains how to protect it.

Are Gifts Between Spouses Marital Property?

Yes. Although a gift from a third party is nonmarital, a gift from one spouse to the other is treated differently. Section 20-3-630(A) provides that “interspousal gifts of property, including gifts of property from one spouse to the other made indirectly by way of a third party, are marital property which is subject to division.” So jewelry, a car, or other property that one spouse gave the other during the marriage is generally marital property, even if the receiving spouse considers it “theirs.”

The engagement ring is usually treated differently because it is typically given before the marriage. See our article, Who Gets the Engagement Ring in a South Carolina Divorce?

What Happens to Property Acquired After the Divorce Case Is Filed?

The marital estate is generally fixed on the date marital litigation is filed. In addition, Section 20-3-630(A)(2) makes property acquired by either spouse after the earliest of the following events nonmarital:

• the entry of a pendente lite (temporary) order in a divorce or separate maintenance action;
• the formal signing of a written property or marital settlement agreement; or
• the entry of a permanent order of separate maintenance and support or a permanent order approving a property or marital settlement agreement.

These timing rules are technical. For example, a paycheck deposited into a joint account after filing, or a new asset purchased with money that was marital when the case began, may raise tracing questions. Always run it by your divorce lawyer before you buy, sell, or receive any significant property while your case is pending. If you are concerned about the other spouse moving money after the case begins, see our articles on what to do if your spouse empties a bank account and temporary hearings in South Carolina.

Is an Increase in the Value of Nonmarital Property Marital Property?

Generally, no. Under Section 20-3-630(A)(5), an increase in the value of nonmarital property remains nonmarital, “except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage.” Increases caused by the market, inflation, or the passage of time usually stay with the owning spouse.

For example, if the husband inherits a house during the marriage, it is nonmarital, at least initially. If the wife uses her money and labor to help build a deck in the backyard, or helps repair and maintain the run-down house, the increase in value resulting from her efforts could be marital. The spouse claiming the increase must present evidence tying the increase to the other spouse’s efforts.

Can Nonmarital Property Become Marital Property?

Absolutely. This is called “transmutation.” South Carolina courts have held that nonmarital property can be transmuted into marital property if it becomes so commingled with marital property that it is no longer traceable, if it is titled jointly, or if it is used by the parties in support of the marriage or in some other way that shows the parties intended it to be marital property. See, for example, Jenkins v. Jenkins, 345 S.C. 88, 545 S.E.2d 531 (Ct. App. 2001). Transmutation turns on intent, and the spouse claiming the property was transmuted must prove it.

Mere use of nonmarital property during the marriage is not always enough by itself. This last form of transmutation is trickier to identify and is decided by the family court judge on a case-by-case basis, based on the evidence of what the spouses intended. Your family court lawyer will help you build your argument about whether the property was transmuted. Keeping inherited and premarital funds in a separate account in your own name, and keeping records showing where the money came from, are the best ways to protect nonmarital property.

How Does the Family Court Value Marital Property?

After the family court identifies marital and nonmarital property, it must value both. The court values nonmarital property because each spouse’s nonmarital property is one factor it considers when dividing marital property and awarding alimony.

As a general rule, the court values marital property as of the filing date. However, the court may consider increases or decreases after filing, including whether they resulted from a spouse’s post-filing contributions or passive market forces.

A market-driven increase or decrease may be shared, while a decrease caused by one spouse’s misconduct may be charged to that spouse. In Dixon v. Dixon, for example, the South Carolina Court of Appeals included a marital business in the estate at its value when the case began and assessed that value against the husband’s share because the evidence showed he intentionally sabotaged the business during the litigation.

As for proof of value, the court can consider the spouses’ own opinions, appraisals, account statements, witness testimony, and expert opinions. Each spouse must also file a sworn financial declaration listing their income, expenses, assets, and debts. In cases involving a business, real estate, or unusual assets, the valuation often turns on the testimony of appraisers and accountants. Our article on how a business is valued in a South Carolina divorce explains the common methods.

What Factors Does the Court Use to Divide Marital Property?

The family court has no mathematical formula for dividing marital property. Instead, the family court decides each case individually and must give weight, in such proportion as it finds appropriate, to the fifteen factors listed in Section 20-3-620(B):

The court does not simply count how many factors favor each spouse. It decides how much weight each factor deserves under the facts of the case. On appeal, the appellate courts look at the fairness of the overall division rather than the treatment of any single item.

Will Marital Property Be Divided 50/50 in South Carolina?

Not necessarily. South Carolina law does not require an equal division, but many cases end with a division at or near 50/50. Typically, the longer the marriage, the more likely the court will divide assets equally. In a long marriage, both spouses usually divided their responsibilities in a way they believed was fair, whether one spouse earned most of the income and the other raised the children and managed the home, and so both spouses should share the economic benefits of their marital partnership. The statute requires the court to consider a spouse’s contribution as a homemaker.

In a shorter marriage, the family court is more likely to look closely at each spouse’s direct and indirect contributions to the marital property before dividing it. For example, in a three-year marriage where one spouse contributed nearly all of the money used to buy the marital home, the court may award that spouse a larger share of the equity. The ages and health of the spouses, their earning potential, and whether alimony is awarded can also move the percentage in one direction or the other.

Does Adultery or Other Misconduct Affect Property Division?

It can, but only in certain circumstances. Under Section 20-3-620(B)(2), the court considers marital misconduct or fault, whether or not it is used as a ground for divorce, if the misconduct affected the economic circumstances of the parties or contributed to the breakup of the marriage. For example, if a spouse spent marital money on an affair, or wasted marital assets as the marriage fell apart, the court can take that into account. See our articles on how to prove adultery in South Carolina and what happens when a spouse wastes marital assets before divorce.

The statute also limits the timing of the conduct the court may consider. Evidence of personal conduct that occurred after the earliest of the entry of a temporary order, the signing of a written property or marital settlement agreement, or the entry of a permanent order of separate maintenance or approval of a settlement agreement cannot be considered under this factor. Fault is only one of fifteen factors, and in most cases, it does not change the division as much as spouses expect. Fault can also affect alimony, as explained in our guide to alimony in South Carolina.

How Are Marital Debts Divided in a South Carolina Divorce?

In addition to dividing marital property, the family court also divides marital debts. Section 20-3-620(B)(13) requires the court to consider liens and encumbrances on marital property, which must be equitably divided, along with any other debts either spouse incurred during the marriage.

South Carolina courts have generally treated a debt incurred during the marriage for a marital purpose as a marital debt, while a spouse claiming a debt is not marital must show it was not incurred for the benefit of the marriage. See Hickum v. Hickum, 320 S.C. 97, 463 S.E.2d 321 (Ct. App. 1995). A spouse claiming that debt incurred after marital litigation began is marital must show it was incurred for a marital purpose.

However, just because the family court divides assets in a particular percentage, such as 50/50, does not mean the court will divide debts in the same percentage. The court allocates marital debts equitably based on the parties’ circumstances, including their ability to pay; it does not automatically assign a larger share to the higher-income spouse. Common marital debts include mortgages, home equity loans, car loans, and credit cards used for family expenses. Student loans require a closer look at when and why they were incurred; see our article, Are Student Loans Part of Marital Debt in a South Carolina Divorce?

Keep in mind that the family court’s order allocating a debt between spouses does not change the contract with the creditor. If both spouses signed for a loan and the spouse ordered to pay it does not, the lender may still pursue the other spouse. That is why well-drafted orders often require the paying spouse to refinance joint debts or indemnify the other spouse. If one spouse is considering bankruptcy, see our article on what happens in a South Carolina divorce if you file for bankruptcy.

How Are the House, Retirement Accounts, and a Business Divided?

Certain assets come up in almost every divorce and raise their own issues. The following table summarizes the most common assets and where to learn more:

If there are third persons or entities that have an ownership interest in the property, such as partners in a business partially owned by a spouse, they may need to be joined or permitted to intervene to protect their interests. The family court can divide a spouse’s marital interest, but cannot simply divide property belonging to a third party.

How Does the Court Carry Out the Property Division?

Once the court decides what percentage each spouse should receive, it must decide which spouse receives which assets and debts. The court may distribute assets in kind, such as awarding one spouse the house and the other spouse a retirement account of similar value. Under Section 20-3-660, the court may:

• direct a spouse to sign and deliver any deed, bill of sale, note, mortgage, or other document needed to carry out the order, and direct the clerk of court to sign it if the spouse refuses;
• order the public or private sale of all or part of the marital property, on terms the court determines; and
• use any other reasonable means to achieve equity between the parties, including a monetary award to one spouse.

Ultimately, if the property cannot be divided by giving each spouse appropriate assets, the family court may order that assets be sold and the proceeds divided. Retirement accounts and pensions may require a separate order directing the plan administrator to transfer the awarded share; whether a qualified domestic relations order (QDRO) is needed depends on the plan type.

Federal retirement benefits use different orders altogether, as explained in our article on how FERS and TSP are divided in a South Carolina divorce. Under Section 20-3-650, if a party refuses to comply with the court’s order or the court cannot obtain personal jurisdiction over an absent party, the court may also order that the party’s property in South Carolina be sequestered upon an appropriate petition.

Can a Property Division Be Changed After the Divorce?

Generally, no. Under Section 20-3-620(C), the court’s order affecting the distribution of marital property is final and not subject to modification except by appeal or remand following a proper appeal. This is different from alimony and child support, which can often be modified later if circumstances change. Because the property division is permanent, you must identify and value every asset and debt correctly before the case is resolved. If you later learn that your former spouse committed fraud in the case, see our article on discovering fraud after your lawsuit is over.

Can Spouses Agree on Their Own Property Division?

Yes. Most property cases in South Carolina are resolved by agreement, often at mediation, rather than by a judge after trial. Spouses can divide their property however they agree is fair, and the family court will review the agreement to ensure it was entered into voluntarily and is fair before approving it.

An agreement gives the spouses control over which assets each person keeps, such as allowing one spouse to keep the house in exchange for a larger share of the retirement accounts. An approved agreement can also be the basis for an uncontested divorce. For more on the negotiation process, see our article on negotiation strategies for settlement agreements.

How Can a Charleston Divorce Lawyer Help?

Property division is where many of the most important financial decisions in a divorce are made, and mistakes usually can’t be corrected later. An experienced Charleston divorce lawyer can help you identify all of the marital property, protect your nonmarital property, trace commingled funds, obtain appraisals and expert valuations when needed, and present the statutory factors that support a fair division. The family law attorneys at Futeral & Nelson have represented spouses in Charleston, Berkeley, and Dorchester Counties since 2003.

If you or your spouse is considering divorce or separation, call us at 843-284-5500 or contact the family law attorneys at Futeral & Nelson, LLC to schedule a consultation and learn exactly where you stand.