Marital Property – What it is and what it isn’t.
Many people when faced with troubling times in their marriages often have to give thought to this topic. It isn’t enough they must think about how ending their marriage may affect themselves and their families mentally, emotionally and financially, but they must also consider what will happen to their belongings. Trying to decide how to divide marital property can be one of the most complicated tasks for all parties involved when dealing with a divorce. However, before deciding how to divide it, we must first realize what needs to be divided.
In South Carolina, marital property is considered to be all real or personal property acquired during the marriage, owned as of the date of filing or commencement of marital litigation. It also does not matter how legal title is held (whether jointly or individually).
Property is “acquired” on the date a spouse files a divorce complaint or initiates other marital litigation. The value of the property is set on the date of the filing. However, the family court can take into account one party’s contributions to increase or decrease the value after the filing of marital litigation. Later changes in value are taken into account in apportioning the property (not voluntary reductions). If appreciation occurs while the divorce is pending, both parties will share in the change of value.
Assets acquired or liabilities incurred by either spouse during the marriage are presumed to be marital assets. The presumption is rebutted by showing the property is non-marital. The burden of proving debt is non-marital is on the party challenging the inclusion in the marital estate.
Marital property is NOT:
Property acquired before marriage (engagement ring).
Property acquired by gift, devise or inheritance other than from the spouse.
Property acquired after temporary orders.
Property acquired with non-marital property.
Property excluded by written contract (such as a pre-nuptial agreement).
Any increase in value of non-marital property.
So, for example, A couple were married and 1 day before purchasing a home, the husband told his wife he was done with the marriage. If the wife continued with the purchase of the home before any type of filing or marital litigation took place, the home would technically be considered “marital property” and could then be divided up by the family court.
There of course, is much more to consider in determining whether it is marital property and whether it was commingled with other property, how to divide it if so, etc. When dealing with complicated marital and/or property issues, it is very important to contact a competent attorney to help you with the process.
– David M. Smith