Working together to arrive at a divorce settlement is the best way to ensure that each spouse gets what he or she wants out of a divorce. However, if the couple is unable to amicably and agreeably divide up their own marital assets, property and debts together using a written divorce settlement, then the court is left to divvy up the couple’s things using equitable division.
Equitable division occurs when a South Carolina family court judge considers the totality of the couple’s debts, assets, and property and then makes a division of those debts, assets and property between the spouses that is fair, but not necessarily monetarily equal. This is sometimes surprising for divorcing couples to learn because many think that divisions of assets are handled in a 50-50 split.
What Exactly Gets Divided Up?
Property, assets and debts get divided up during a divorce. This includes personal property (cars, boats, jewelry, etc), real property (such as the marital home, second home or vacation properties), bank accounts, retirement plans, investments, and debt balances. These assets are assessed to determine their value. Only marital property, assets and debts are included in the equitable division, meaning that any property, assets or debts that were independently brought into the marriage by one spouse or the other reverts to that spouse alone.
Factors That Go Into Deciding How Property Is Divided Up
Under S.C. Code Annotated Section 20-3-620, the court is required to consider a number of apportionment factors when deciding the equitable distribution of the assets. Some of the apportionment factors include:
- The duration of the marriage and the ages of the spouses
- Any marital misconduct or fault brought to the divorce by either party, especially if the marital misconduct impacts the financial situation of the divorcing couple
- The value of marital property and whether it is located in the state
- Each spouse’s independent income, their earning potential and their likelihood of future acquisition of capital assets
- Each spouse’s health
- Each spouse’s need
- Whether a spouse has non-marital property and the value of that nonmarital property
- Whether there are vested retirement benefits for each spouse
- Whether alimony or other support has been awarded
- Whether children are involved in the divorce, and which parent will have primary custody and thus the marital home
- The tax implications that the division of assets and property will have on each spouse;
- Whether a spouse has other support obligations that predate the marriage from which he or she is getting divorced
- Any other factors that the court deems to be relevant
Contacting a Charleston Divorce Lawyer
One of the most difficult aspects of a divorce can be the division of marital assets, debts and property. If you need help with your divorce or have any questions about the equitable division of your marital assets, please contact the family law attorneys at Sarji Law Firm, LLC. Our family law attorneys can take steps toward arriving at a divorce settlement so that you can avoid the equitable division of your assets during your divorce. Call us today at 843-323-4341.