Equitable Distribution

What is Equitable Distribution?

Equitable distribution is the way the Court divides marital property and debt. It is based on principles of equity, which means fairness. It differs from community property states in that there is not an automatic 50/50 division of marital property and debt. While it is not unusual for the court to divide marital property and debt 50/50, it is by no means automatic. The Court is required to consider 17 different factors in arriving at a fair equitable distribution. The factors are as follows:

  • Ages at time of marriage and currently
  • Length of marriage
  • Marital misconduct, including economic misconduct
  • Contributions to acquisition, maintenance and increase in value of property, both direct and indirect
  • Income of each spouse
  • Earning potential of each spouse
  • Health of each party
  • Education and future training of each party
  • Non-marital property of each party
  • Retirement benefits of each party
  • Award or denial of alimony
  • Desirability of awarding marital home to one of the parties
  • Tax consequences
  • Prior support obligations
  • Marital debt
  • Child custody arrangements
  • Other relevant factors

We can advise you as to how these different factors apply to the facts of your case and how they may effect the equitable distribution in your case.

What is Marital Property and Debt?

In South Carolina, the family court only has jurisdiction to divide marital property and marital debt. The definitions are the same, except in one definition, the word “property” is used and in the other, the word “debt” is use. Marital property is defined as all property, both real and personal acquired by either party between the date of marriage and the date pleadings in family court are filed, regardless of how title is held (an individual spouse’s name, joint name, or in certain circumstances, the name of a third party), except property during the marriage that was acquired by inheritance or gift from a third party. Gifts between spouses are marital property.

What is Non-marital Property and Debt?

Non-marital property (and debt) is property (or debt) that was: (1) owned prior to marriage, or (2) property that was a gift from a 3rd party, or (3) inheritances received during marriage, or (4) acquired after the date pleadings were filed in family court.

Can Non-marital Property Become Marital Property?

Yes. Non-marital property may become marital property through a process called transmutation. Transmutation may exist if it is proven that the parties considered and treated the property as the common property of the marriage. Transmutation may be proven by placing the property in joint name, by commingling it with marital property to such an extent that it becomes untraceable, or if the property was used in support of the marriage. Transmutation is a complicated legal concept that differs from case to case based upon the evidence proved. We can advise you as to how the facts of your case may effect transmutation.

Phipps Family Law, P.A.

Hilton Head Island

(843) 689-6242

Newberry, SC

(803) 405-0009

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