FAQ: Can I get more than half of the marital property?

FAQ:  Is Marital Property Divided Fifty-Fifty in South Carolina?

Answer:  In most cases, yes.

By M. J. Goodwin

A very frequent concern of clients is how much of the marital estate he or she is entitled to in a divorce case.  In most lengthy marriages, the Family Court divides the marital estate approximately equally, commonly referred to as 50-50.   There is some case law to support the idea that 50-50 is merely an appropriate starting point for discussions about division, but in practice, I see very few cases that result in a division other than 50-50.

What might result in a case that is split other than 50-50?  Again, such cases are few and very far between, but using the factors below, it is theoretically possible to attain a division other than 50-50.  However, even in those cases, I have not seen cases that resulted a division greater (or lesser depending on your position) of 60-40.   However, to pursue such a case, one must consider the cost of a lengthy trial and a likely appeal.  In such situations, agreeing to 50-50 might be a cheaper outcome for the client.

South Carolina law provides that in making an equitable apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors:

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;

(2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:

(a) entry of a pendente lite order in a divorce or separate maintenance action;

(b) formal signing of a written property or marital settlement agreement; or

(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

(3) the value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;

(4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;

(5) the health, both physical and emotional, of each spouse;

(6) the need of each spouse or either spouse for additional training or education in order to achieve that spouses’s income potential;

(7) the nonmarital property of each spouse;

(8) the existence or nonexistence of vested retirement benefits for each or either spouse;

(9) whether separate maintenance or alimony has been awarded;

(10) the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;

(11) the tax consequences to each or either party as a result of any particular form of equitable apportionment;

(12) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;

(13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;

(14) child custody arrangements and obligations at the time of the entry of the order; and

(15) such other relevant factors as the trial court shall expressly enumerate in its order.

If you have a divorce case in Anderson County, South Carolina and would like my assistance, please email me at:  mj@mjgoodwin.com



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