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How do South Carolina Family Courts divide property and debts in divorce cases

There are two main division methods in divorce law nationwide: community property and equitable apportionment states.  South Carolina is an equitable apportionment state. So, what does that mean?

Equitable Apportionment means that South Carolina Family Courts have jurisdiction in a divorce case to divide up the marital assets and debts acquired during the marriage.  Our Code of Laws state that, during a marriage, spouses acquire a special equity and ownership right in the marital property and those rights are subject to apportionment between the spouses.  (See SC Code §20-3-610).  

To break down that definition a little further it will be helpful to define marital property.  SC Code §20-3-630 defines marital property as all real and personal property acquired by the parties during the marriage which is owned as of the date of filing or commencement of marital litigation regardless of how legal title is held.  So it doesn’t matter that the home is only in the husband’s name or that the Wife is the only spouse who contributed to a 401(k) during the marriage.  

Of course there are exceptions to every rule.  Property obtained by inheritance, devise, bequest, or gift from a party other than the spouse, property owned prior to the marriage, and property acquired after a temporary order is entered, a marital settlement agreement is executed, or a final order of property settlement is entered.  

The first step the Family Court will take is to identify all of the marital property.  Once the marital property has been identified the court will determine how to divide the assets between the spouses.  SC Code §20-3-620 identifies 15 factors that the Family Court must consider in determining how to apportion the marital property among the spouses.  Those factors include things such as the length of the marriage, the ages of the parties at the time of the marriage and at the time of the divorce, the income and income potential of each party, the marital misconduct or fault of either party (meaning someone has committed adultery, physically abused a spouse, or is addicted to narcotic drugs or alcohol), the health of the parties, the non-marital assets of the parties, and several other factors.

It is not uncommon for the Family Court to issue an order of apportioning the marital property in a 50/50 (equal) manner between the spouses.  But, it is not mandatory that the Family Court divide the marital property equally between spouses.  In cases where one spouse contributed significantly greater in the financial area of a marriage, the court may deviate and award a greater portion of the marital estate to that spouse.

What should I expect at the initial consultation with my divorce lawyer?

When you meet with a lawyer to discuss your divorce case you want to know something tangible.  You have hundreds of questions and worries floating around in your head.  How much with this cost?  What is the worst case scenario?  Will I lose my kids?  How long with this take?  And many more.

The initial consultation is a time for you and the lawyer to get to know more about one another.  Your lawyer will likely ask you to complete a new client intake form.  This will ask information about you such as your address, date of birth and other personal information.  It will likely as for the same information about your spouse.

Many forms also request information about the marriage such as the date of marriage, when you separated, the reason for the separation, number of children born during the marriage, and it will ask for what you are seeking in the divorce.  For example, do you want sole custody of the children?  Are you seeking a divorce on adultery or some other fault-based ground?  Are there assets and debts that need to be divided between you and your husband?

This will help the lawyer to understand the level of complexity involved in the case.  Also, knowing the issues important to you, he can give you some direction about the law in those areas and can provide an overview of how the process works.

Your lawyer cannot provide you with an exact game plan, certain results or even really exact legal advice at this time.  Great legal advice is based on knowing all of the specific facts of your case and there is usually not enough time to uncover all of that at an initial consultation.

Think of the initial consultation as an interview.  All lawyers are ethically required to be competent in the areas they practice in, but that doesn’t mean all lawyers are equal.  Your personality will mesh with some lawyers and clash with others.  And, while lawyers love being retained for new cases, they don’t accept every case that comes through their doors.  So, understand that while you are determining if you can work with this lawyer, he is also trying to determine if he can work with you.

So, at your initial consultation you should be looking to determine if this is a lawyer you feel has the knowledge necessary to provide you with the representation you need and if he is someone you feel comfortable working with.  Don’t select a lawyer just because that’s who your friend or family member used.  You should also try to get some questions answered, but understand that oftentimes at this stage of your case there is simply not enough information available for you to receive an exact answer.  The answer you receive will likely be qualified with lots of “ifs” based on how the facts play out.

When should you seek modification of your child support?

A while back, I made a rare visit to the county jail to meet with a client.  Several years ago, he and his former wife reached an agreement in their divorce about custody, visitation and child support.  Things were pretty good – as far as divorces go. Fast forward a few years…his dependable job and […]

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What do I do about custody, visitation, property, and other issues while the divorce is proceeding?

Oftentimes, there are issues that must be addressed early on in a case.  Some of those issues include custody of minor children, child support, visitation, determining who gets to reside in the marital home and spousal support.  This relief comes through a Temporary Order.  Either party may file what is called a Motion for Temporary […]

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Almost Daily Inspirational Post: Happiness

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As you go through a separation or divorce mindset plays a key role in determining how you view the process, the outcome, and how you come out on the other side.  I plan to begin a new series with inspirational quotes to help keep you in a great mindset as you make your way through […]

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