Dividing Marital Property and Debts
The Marital Estate
The family courts of South Carolina have the authority and duty to divide all marital property and debts acquired by spouses during the course of their marriage. The total assets and debts acquired from the time of the marriage until the time the litigation is filed constitutes the marital estate. The marital estate does not exist until the action seeking an equitable distribution of the marital property and debts has been filed. Identification of the property and debts that comprise the marital estate is important, and there are specific laws that set forth what constitutes marital property, and what property and debts are excluded from the marital estate, and are non-marital.
The family courts of this State will divide the property and debts that comprise the marital estate between both spouses as a result of marital litigation when sought by either spouse in their pleadings. The family court
judge must consider several factors in reaching a determination of the overall equitable apportionment of the marital estate. The following are some, but not all, of the factors the family court will consider in reaching its determination:
- The duration of the marriage
- The physical and emotional health of each spouse
- The existence of vested retirement benefits
- The existence of any liens or other encumbrances upon the marital property
- The tax consequences to each or either spouse as a result of the division
- The non-marital property owned by each or either spouse
You Must Be Informed
The discovery phase of litigation is the most important piece of family court litigation when it comes to identifying and valuing the marital estate. You need to have the right attorney there to help you along through that stage of the litigation, and to help you understand the details that go into the evaluation of the estate. Those details can make all the difference in achieving your desired outcome through mediation or through the trial of your case in the family court.