Fort Mill Property Division Lawyers

Divorce Attorneys Serving Fort Mill, Indian Land, Rock Hill, York County & Lancaster County

During a divorce proceeding, one of the key elements to be decided is how property owned by the couple will be divided. If the divorce is uncontested and both parties can agree to a fair and reasonable split of the property, it is not uncommon for a court to stay out of the way and approve the agreement. However, if the divorce is contested, it is the court that will make the decision as to which person gets what property.

What Is Considered as Property in South Carolina?

You and your spouse’s property encompasses more than just your house or other real estate you may own. The law in South Carolina considers property to include income, dividends, benefits, and debts in addition to tangible items such as real property and jewelry.

In South Carolina, property is classified as being either marital or separate. Marital property is property that was acquired during the time the two parties were married. Property that was acquired by one spouse prior to the marriage will generally be classified as separate. However, if that property was used for the benefit of the marriage, it is possible that a court will view the property as marital.

Property Division Laws in South Carolina

South Carolina is not a “community property” state. Instead, courts in South Carolina consider “equitable distribution” whereby several factors are considered to determine how the property will be divided.

According to the principles of equitable distribution, the goal of the Court will be to divide the property fairly based on a complete review of the marriage from a financial perspective. This includes learning about the finances that were involved during the marriage as well as what each spouse will need going forward.

Factors considered for property division include:

• The length of the marriage
• The age of the spouses
• Marital fault or misconduct
• The current value of the property
• The contribution each spouse made to the acquisition of the property
• The income of each spouse
• The earning potential of each spouse
• The health of each spouse
• The need of each spouse
• The separate property of each spouse
• The retirement benefits of each spouse
• The tax consequences
• The expenses and debts of each spouse
• The custody arrangement, if children are involved

Who Gets the Home?

The court is more likely to award the home – if it does not need to be sold – to the spouse holding custody of the children.

It is no secret that in most cases, the equity in the marital home is the biggest and most important asset that must be divided in a divorce action. Equity is simply the value of the home against any mortgage, debt, and/or lien. To determine the actual value of the home, an official appraisal is usually needed.

From there, couples choose one of three options to divide the equity:

• Sell the home
• Refinance the home and pay off the other spouse
• One spouse is permitted to remain in the home for a set period of time and then either pays out the other spouse or sells the home with the purpose of dividing up any proceeds

Dividing Retirement Accounts

To be marital property subject to division, the law in South Carolina considers pensions and benefits in addition to 401(k)s, IRAs, bonuses, commissions, bank accounts, and tax refunds.

The law in South Carolina places retirement accounts into one of two groups:

• A defined contribution plan is a retirement plan where the employer, employee or both make contributions towards an individual account established on behalf of the employee. The funds can be invested, and upon retirement, the employee will receive either a lump sum payment of the amount held in the account or the balance will be converted to a monthly annuity payable for the lifetime of the employee.

• A defined benefit plan provides a retiree with a monthly payment beginning at retirement for the remainder of the retiree's lifetime. This type of plan is what is usually thought of when talking about pensions.

If the parties to the action are unable to come to an agreement of the value of such accounts, accountants, business appraisers, and/or pension valuators may be used to put the court in a better position to make an equitable decision.

Seek Guidance from Holland Law LLC

If you are about to begin a divorce action, there is a lot at stake and the anxiety and stress you may be feeling is completely normal. To reduce some of this stress, you need to hire competent and experienced legal representation. Holland Law LLC is ready to help you through this difficult situation.