Marital and Non-Marital Property: How Do We Divide?

A common question people ask in divorce cases, is how the court divides property between the spouses. Ultimately, this depends on a few different things. To begin, SC follows Equitable Distribution laws. This means that property is divided in a fair and equitable way. However, fair doesn’t always mean equal. The courts will consider many factors in deciding how to divide property. One of the most important, is whether the property is marital or non-marital.

Marital and Non-Marital Property: How Do We Divide?

First things first, what is marital and non-marital property?

SC Code Section 20-3-630 defines marital property as property acquired by the parties during the marriage. To put it simply, if you bought the property together during the marriage, it will be subject to equitable distribution at the time of divorce. It doesn’t even matter if one name versus the other is on the title. Rather, they just care about the date of purchase.

Are there exceptions?

Property a couple acquires during their marriage is marital, yes. However, there are a few exceptions to the rule. These exceptions are non-marital property. Non-marital property is not subject to division. Some of these exceptions are as follows:

  • Property from an inheritance or gift from a party other than the spouse
  • Property that a written contract signed by both of the spouses excludes, such as a prenuptial agreement
  • Increase in the value of non-marital property. Unless its increase resulted from effort of the other spouse during the marriage
Can non-marital property become marital?

Sometimes property that one spouse owns before the marriage can become marital. This can happen when a spouse deposits pre-marriage money into a joint account during marriage. It can also happen through transmutation.

Transmutation is when the couple treats non-marital property as marital. This is especially common in, say, a home. One spouse might own a home before marriage. Then, during the marriage, both spouses live in the home and put money towards the mortgage, repair, and so forth. Through this process, the home becomes marital property.

Dividing property in a divorce is a hard process. It can be hard to predict how a judge will choose to divide assets. Thus, it is a common concern amongst our divorcing clients. That’s where we come in. By hiring an experienced divorce attorney, you can find someone to fight for your desired outcome— but also prepare you for different possibilities.