Division of Marital Property in South Carolina; “What if my spouse squandered our money?”
Division of Marital Property in Family Court in South Carolina
FAQ: “What if my spouse squandered our money?”
By M. J. Goodwin
The Family Court has authority to divide marital property in the context of a divorce. If parties simply live together, and are not married, the Family Court does not have authority to divide any property. In that situation, the parties must file for a partition in Circuit Court to divide real property. This article deals with Family Court division of marital property only.
The Court must first determine whether or not the property in question is marital. As part of that determination, one must ask “when” the property existed. The relevant date is the date that the marital litigation was filed. This is the date stamped on the Summons and Complaint by the Clerk of the Family Court. I often have clients that want to fight about money or property that their spouse squandered at some point during the marriage. Absent fraud, money that was already spent is not relevant to the division. This point was made in the Panhorst case in 1990. You can read the case here. Property that has been sold, lost, squandered, devalued, spent or otherwise disposed of prior to the date of filing, absent fraud, is not part of the marital estate. This is a bitter pill for many clients to swallow, as the financial problems may be a precursor to the break up of the marriage.
The Court stated in Panhorst: “Marital property is that real and personal property acquired by the spouses during the marriage which is owned by them at the date of filing of marital litigation. The money in dispute here was not marital property because, at the time the action was filed, it no longer belonged to either of the Panhorsts as the statute requires. Thus, it was not subject to equitable distribution.
The statute embodies the Legislature’s decision that the marital estate must be identified as of a fixed date. Given the vicissitudes of life, the parties’ fortunes will change over the years of a marriage. Often the marital estate may have enjoyed a greater value in the past than it does at the dissolution of the marriage. It may be affected by changes in the incomes and earning capacities of the spouses, their spending habits, their savings and investments, and a host of other factors. By requiring the estate to be identified as of the date marital litigation is filed, the Legislature has elected to foreclose the spouses from litigating every expenditure or transfer of property during the marriage. One spouse or the other may have spent marital funds foolishly or selfishly or may have invested them unprofitably. The statute wisely prevents the other spouse from resurrecting these transactions at the end of the marriage to gain an advantage in the equitable distribution. Were it to do otherwise, human greed and vindictiveness would transform the courts into “auditing agencies for every marriage that falters.”
Identification of the marital estate is something an experienced divorce attorney can help a client accomplish.
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