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.