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Property & Debt Division |
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South Carolina is an “equitable apportionment” state. That means that South Carolina divides marital property and marital debt based upon a number of factors, rather than an automatic percentage. “Community property” states typically divide marital property and marital debts on an automatic 50/50 basis. While South Carolina Family Courts more often than not divide marital property and marital debts on a 50/50 basis, that percentage division is not automatic or required. “Marital property” typically includes all property (as well as debts) owned as of the date of the filing of the Family Court action that were acquired during the marriage. “Marital property” does not typically include property that either spouse brought into the marriage, or received from third parties by way of gift or inheritance. Gifts between the spouses during the marriage, however, are considered marital property. Property that was acquired by either spouse prior to marriage or through gifts or inheritance from third parties, is normally known as “separate property”, which the Family Court has no jurisdiction to divide at divorce. However, there are circumstances when “separate property” can be divided when that property has been transmuted into marital property, or where appreciation has occurred during the marriage through the marital efforts of the spouses. “Separate property” can also include property which has been excluded under a valid pre-nuptial agreement. In making an equitable apportionment of marital property and debts, the Family Court must consider the following factors:
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. Marital debts must also be divided between the spouses. The Court is not bound to divide the debts in same percentage as it divides the assets. In order to be considered a marital debt and divided accordingly, the Court must consider whether or not the debt was incurred for a marital purpose. Generally, a division of marital property is a non-taxable event. Usually, if property is transferred between spouses pursuant to a Marital Settlement Agreement or a Court Order, it will neither be taxed as income nor allowed as deduction. There may be tax consequences, however, when funds are transferred retirement and individual retirement accounts and when marital assets are transferred to third parties. There are ways to transfer retirement asset without incurring immediate tax liability. Some retirement plans will require a special Order specifically designated to transfer plan assets. These Court Orders are called “Qualified Domestic Relations Orders” (sometimes referred to as “QDRO’s”). |
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◊ McLaren & Lee, Attorneys ◊
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