In South Carolina, we use the law of equitable distribution as a means of determining divorce cases. For many people, this term can cause a lot of confusion. Equitable distribution does not mean that the court divides property 50/50 between the couple. Rather, the court uses principles of fairness to decide how the property should be divided. But, what are those principles? And what factors go into consideration?
Fair and Equitable Distribution: How Equal is it?
It’s important to understand how much property you have before meeting with an attorney. The court takes into account all assets between the two parties before deciding the proper, fair equitable distribution terms. So, it’s important that you’ve done a complete assessment ahead of time.
So, what kind of property should you include?
The short answer is everything. First, there’s ‘real property’. Real property refers to land and houses. Real property, generally, is the most expensive property. Personal property includes almost anything else. The first considerations for most people generally are that of cars, furniture, and jewelry. However, personal property includes all general items that aren’t considered real property. So, that can be anything from a painting to a Kitchenaid mixer. In short, personal property could be any item in the home. Which means, that there’s a lot to consider.
One other factor to consider in equitable distribution is debt. Personal loans, credit cards, hospital bills, and mortgages are all debts that the court will take into consideration when they make a final decision.
How Does the Court Decide What is Equitable and Inequitable?
Now, how does a judge make a decision considering all these different types of property and debt? Well, the court looks at factual circumstances in the marriage. For example, the income of each individual spouse is a big factor. Other than that, each spouse’s individual contribution is an especially significant factor for debt. Another major factor is that of fault. If one of the spouses is considered ‘at fault’ for the marriage’s failure, that has a large potential to sway the court in one direction or another.
Finally, it is important to remember that equitable distribution does not necessarily apply to all property and debt. It only applies to property and debt the was acquired during the marriage. If you buy or acquire the property and debt outside of the marriage— it is immune to the proceedings and is yours to keep.