Property Division Attorney in Rock Hill, SC

Representing Clients in Divorce Cases in York County

When a marriage ends, part of the divorce process is to split up the marital estate. In situations where there aren’t many assets or they aren’t of high value, this can be a fairly simple process. But when there are extensive assets or high levels of debt or the divorce is high-conflict, sorting out the division of property requires the help of an experienced family law attorney.

If you’ve decided to get a divorce and you want to make sure you understand what you’re entitled to in the settlement, contact The Howze Law Firm LLC. Our team can explain the difference between separate and marital property and represent you in negotiations and the trial process, if necessary.

What Is the Difference Between Marital Property and Separate Property?

When two people marry, they can choose to combine their finances or keep bank accounts and bills separate. However, the law views separate and marital finances a little differently than the average person. In general, any assets that were acquired during the marriage will be considered marital assets. Personal property acquired before the date of marriage will remain as such.

There are some specific exceptions to this rule. Inheritances that are only bequeathed to one party are kept as separate property, as are gifts from a third party to only one spouse. If, however, the person who received the gift takes action to indicate it will be shared property, this could make it part of the marital assets. For example, if your father gives you — and only you — a vacation condo as a gift, that would be separate property. But if you change the deed to have both your and your spouse’s name on it, it would then become marital property.

Many couples get caught up on who actually bought the asset during the marriage or whose name it’s in, but these things are largely irrelevant to the courts. Property can be considered part of the marital assets even if only one person’s name is listed as the owner if it was bought during the marriage.

These rules also apply to debts. It doesn’t matter if only one spouse acquired a large amount of debt on a credit card that was only in their name. If the purchases were made during the marriage, the debt must be divided as part of the settlement.

What Does Equitable Distribution Mean?

South Carolina code specifies that there must be an equitable apportionment of the marital property if the couple chooses to divorce. Other states refer to this as equitable distribution or equitable division of the assets, and the meaning is the same. This requires that the marital estate — which includes both assets and debts — be divided equitably between both parties. Note that this is not the same as equally.

Equitable marital property division involves an inventory and valuation of the marital estate in full. Then, the courts will decide who should get what or what property may need to be sold to ensure that both parties end up with their fair share. In some cases, the parties can make that decision themselves if they are able to agree, and the judge will approve it and turn it into a court order. However, if the judge has reason to believe that the agreed-on settlement is not equitable, they do have the ability to override it.

What Factors Do the Courts Consider During Property Division?

Many people are surprised to find out that a divorce settlement is not a 50/50 split of the assets and debts. Instead, the courts look at 14 specific factors to determine how the estate should be divided between the two parties. These include:

• How long the marriage lasted
• Whether there was any marital misconduct that contributed to the breakup or caused financial issues
• The value of the marital estate
• Each spouse’s income and/or earning potential
• The physical and emotional health of each party
• Whether either party will need career training or education to reach their earning potential
• Each party’s separate property
• Each party’s vested retirement benefits
• Whether either spouse is already receiving maintenance or alimony payments
• Whether the family home will be given to the party who has custody of the children
• The tax consequences of any proposed settlement
• Any liens or other attachments to marital property
• How child custody is determined

The courts also have the right to consider any “such other relevant factors.”

What Can Make the Property Division Process Faster?

Divorce proceedings can be extremely lengthy, and if there is contention about the marital and divisible property, it can cause the property division process to take months or even years. There are two ways to speed this up. The first is to be as transparent and forthcoming about the assets and debts as possible. The sooner everything is accounted for and valued, the quicker it can be divided. The second is to attempt to compromise and agree on the terms of the divorce. The more you and your ex can agree on, the less that has to be decided by a judge in a trial. Mediation can often help the parties reach a settlement agreement that works for everyone.

As soon as you are considering a divorce or have been served with papers, it’s important to speak with an attorney about your situation. It’s common for divorces to start off amicable and then turn sour quickly when it comes time to actually address the finances. If you have questions about property division and divorce in South Carolina, call The Howze Law Firm, LLC, at 803-324-9009.