Crash Course: Equitable Distribution in SC

Most divorces require equitable distribution (or apportionment) of the marital estate. That process requires the parties to first identify all assets and debts and then classify them as marital or non-marital.

All property acquired during the marriage and owned by the parties (except that which is specifically non-marital) is marital property. This includes appreciation of non-marital assets that result from the parties' efforts or contributions of marital funds; gifts between the spouses given during the marriage; and all vested and non-vested benefits (e.g. retirement plans, pensions, profit sharing plans, annuities, life insurance, etc.) accrued during the marriage. Specific non-marital property includes: property acquired by either party before the marriage; property acquired after certain stages of the divorce process; property excluded by written contract of the parties (likely a prenuptial agreement); and any increase in value of nonmarital property that did not result from efforts of the other spouse.

For debts, those incurred for the joint benefit of the parties are marital, and it is presumed that any debt incurred before the filing of a divorce is marital in nature.

While it seems that it would be simple to determine which items are marital and which are non-marital, property can sometimes change from non-marital to marital over time. To demonstrate transmutation, imagine that before getting married, the husband owned a condo. If, after the marriage, the husband sells the condo and deposits the proceeds into the couple's joint account, the non-marital property may become so commingled with the marital property that it is no longer traceable.  Or if those proceeds are used to pay household expenses, they may be considered marital because they were used to support the marriage.  These situations, and others similar in nature, can make characterizing assets difficult.

Once it is determined which assets are marital, those must be given a monetary value. Then the total marital estate must be divided between the parties, based on a number of factors, including: the length of the marriage; marital misconduct/fault; each spouse's contribution to the marital estate; income of each spouse; health of each spouse; existence of retirement benefits; any award of alimony; tax consequences; and child custody arrangements. (However, this list is not exhaustive. Section 20-3-620 of the South Carolina Code of Laws contains a complete list.) This division is usually shown as a percentage (e.g. one spouse receives 45% of the estate while the other receives 65%).

After determining what percentage of the marital estate each spouse should receive, it must then be determined how the assets are to be divided to accomplish that percentage.  This is when it is decide who gets what, in a practical sense -- the house, vehicles, and other assets are divided until each party has received his or her percentage of the estate.