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Equitable Distribution

“Equitable Distribution” refers to the process by which the family court identifies and distributes marital assets, and debts, between spouses. This is a four-part process.  First, the Court must identify “marital property” and “marital debt.” Section 20-3-630 of the South Carolina Code defines marital property as “all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation,” but lists several important exceptions to this broad definition.  One important exception to the definition of marital property, for example, is any property acquired by inheritance, or by gift from a party other than the spouse.

Therefore, marital property is any property acquired by a husband or wife during their marriage and owned as of the date a case is filed, subject to certain important exceptions, such as property inherited or gifted from outside the marriage.

Second, the Court must value marital property. This can be as simple as printing out the value of a savings account or a 401k.  Or it can be a complicated and contested process, as where parties dispute the value of a business, or a piece of commercial property, for example.

Third, the Court must apportion marital property, and debt, considering the relative contributions of each spouse to the acquisition of the property, and specifically, the factors set forth in Section 20-3-620 of the South Carolina Code, which are reprinted below.  The Court also can award “special equities” earned by one spouse as a result of his or her contributions that increased the value of what is otherwise non-marital property.

Fourth, the Court must distribute marital property. This process can involve the court ordering the sale of certain property, or awarding exclusive ownership of a marital home to one spouse, or ordering a retirement or pension plan administrator to divide account balance or benefits, among other examples.

Mr. Prenner focuses his practice primarily in family law. Schedule a consultation with him in order to discuss the process of equitable distribution of property and apportionment of debt as applied to the facts of your case.  An important initial stage of the process will be the careful preparation of your Financial Declaration.  It may also be necessary to prepare and respond to written request for information and documents, generally referred to as the process of “discovery.”  Mr. Prenner carefully and diligently advises and represents his clients in these matters.

§ 20-3-620. Apportionment factors

(A) In a proceeding for divorce a vinculo matrimonii or separate support and maintenance, or in a proceeding for disposition of property following a prior decree of dissolution of a marriage by a court which lacked personal jurisdiction over an absent spouse or which lacked jurisdiction to dispose of the property, and in other marital litigation between the parties, the court shall make a final equitable apportionment between the parties of the parties’ marital property upon request by either party in the pleadings.

(B) In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors:

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;

(2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:
(a) entry of a pendente lite order in a divorce or separate maintenance action;
(b) formal signing of a written property or marital settlement agreement; or
(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

(3) the value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;

(4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;

(5) the health, both physical and emotional, of each spouse;

(6) the need of each spouse or either spouse for additional training or education in order to achieve that spouse’s income potential;

(7) the nonmarital property of each spouse;

(8) the existence or nonexistence of vested retirement benefits for each or either spouse;

(9) whether separate maintenance or alimony has been awarded;

(10) the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;

(11) the tax consequences to each or either party as a result of any particular form of equitable apportionment;

(12) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;

(13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;

(14) child custody arrangements and obligations at the time of the entry of the order; and

(15) such other relevant factors as the trial court shall expressly enumerate in its order.

(C) The court’s order as it affects distribution of marital property shall be a final order not subject to modification except by appeal or remand following proper appeal.

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