Equitable distribution vs. community property, and divorce in SC

When a couple divorces, states require the parties to distribute assets in one of two ways: Through equitable distribution or community property distribution. According to FindLaw, South Carolina is one of 41 states to have adopted equitable distribution laws. 

Per equitable distribution laws, both parties of divorce have equal rights to all marital property. Marital property includes all personal and real property either party acquires during the union, and that they still own at the time of filing divorce. 

Non-marital property is not subject to distribution. Non-marital property includes property one party acquired before tying the knot or property one party received through gift or inheritance. However, there are exceptions to the non-marital property rule, such as commingling assets, or using assets for familial purposes. A knowledgeable family law attorney can help parties fully understand the exceptions and how they apply in South Carolina. 

Also according to FindLaw, when dividing property per equitable distribution laws, a judge will consider several factors. Those include the duration of the marriage, each spouse’s financial and non-financial contributions to the marriage, the past and present financial well-being and earning potential of each spouse, each party’s financial liabilities and needs, and age, health and special needs of each spouse, among other factors. 

States that recognize equitable distribution laws often encourage divorcing parties to try to come to a fair settlement out of court and through mediation. Only if the parties cannot come to a resolution will the courts intervene to divide property in the most equitable fashion (not equal). 

In community property states, the judges take a much more clear-cut approach. Once a judge lumps all property squarely into the “marital” or “non-marital” property categories, he or she will divide all property 50/50. This is the case regardless of who contributed more to the marriage, who has more separate property or whether one spouse is largely at fault for the dissolution.