Divorce is scary and painful in the best case. However, divorce can be even more stressful if you wonder about keeping your house, car, and property when it’s over. Every divorce is different, and state laws vary, so answering these questions depends on many factors.
An experienced divorce lawyer in your area can review your case today to determine the best options for retaining your property. Your divorce lawyer’s skill and experience will ensure that your rights are represented and the divorce leads to a fair outcome.
What To Know About Divorce
Divorce laws vary by state, meaning the process differs based on where you live. For example, in South Carolina, you should understand the following points:
Grounds for Divorce
South Carolina recognizes both fault-based and no-fault grounds for divorce. No-fault divorce requires you and your spouse to live separately for at least one year without cohabitation, as per South Carolina Code Section 20-3-10. Fault-based grounds include adultery, desertion for one year, physical cruelty, habitual drunkenness, or drug abuse.
Proving fault can influence alimony or property division, as courts may penalize misconduct like adultery. For example, evidence of infidelity can bar a spouse from receiving alimony. Choosing between fault and no fault depends on your circumstances, timeline, and willingness to litigate, as fault-based cases often require more evidence and court time.
Equitable Distribution of Property
South Carolina follows an equitable distribution model for dividing marital property, meaning assets are split fairly but not equally. Marital property includes anything acquired during the marriage, such as homes, cars, bank accounts, and retirement funds, regardless of whose name is on the title. Non-marital property is excluded. Courts consider 15 factors, including the marriage’s duration, each spouse’s contributions (financial or as a homemaker), marital misconduct, and future earning potential. Divisions often approach 50/50 for long-term marriages but can vary based on circumstances. To protect assets, keep clear records of non-marital property and consider a separation agreement to negotiate terms before court intervention.
Alimony Considerations
Alimony, or spousal support, is not automatic but may be awarded based on need and ability to pay. Types include permanent, rehabilitative, lump-sum, or separate maintenance. Courts evaluate 13 factors, such as the marriage’s length, each spouse’s income, standard of living, and marital fault.
For example, adultery typically bars the at-fault spouse from receiving alimony. Permanent alimony is more common in long-term marriages (over 10 years), while temporary or rehabilitative support may be warranted in shorter marriages. Alimony can be modified or terminated due to changed circumstances, so documenting financial needs and contributions is vital during negotiations or trials.
Child Custody and Support
If children are involved, custody and child support are critical issues. South Carolina prioritizes the child’s best interests when determining custody, considering factors like each parent’s fitness, the child’s needs, and stability. Custody can be joint (shared) or sole, with physical and legal components.
Courts favor arrangements that maintain both parents’ involvement unless factors like abuse or neglect intervene. Child support, calculated using state guidelines, depends on parents’ incomes, custody arrangements, and expenses like healthcare or education. South Carolina uses an “income shares” model to ensure proportional contributions. Accurate financial disclosures and evidence of parental involvement strengthen your case for favorable custody or support terms.
Procedural Requirements and Timelines
Filing for divorce in South Carolina requires residency: One spouse must have lived in the state for at least one year, or both must reside there for three months if both are South Carolina residents. Cases are filed in the county where either spouse lives. For no-fault divorces, the mandatory one-year separation period can delay finalization, while fault-based cases may proceed faster if the evidence is clear.
Mediation is often encouraged to resolve disputes over property, alimony, or custody, reducing court time and costs. During proceedings, temporary orders can address immediate needs. Hiring an experienced divorce attorney is advisable to navigate paperwork, deadlines, and court hearings, especially in contested cases.
Understanding State Property Law Rights
The first step in determining what you keep is distinguishing between marital and non-marital property in South Carolina. Marital property includes assets acquired during the marriage, regardless of whose name is on the title.
This typically includes the family home, cars, bank accounts, retirement accounts, and personal items like furniture purchased during the marriage. Non-marital property, which you would likely keep, includes assets owned before the marriage, inheritances, or gifts received solely by you from a third party (not your spouse), as long as they were kept separate.
For example, if you owned a car before marriage and never added your spouse’s name to the title, it’s likely non-marital, and it’s yours to keep. However, if you added your spouse’s name to the deed of a premarital home or mingled inherited funds in a joint account, that property may be considered marital and subject to division.
The Family Home
The marital home is often the most significant and emotionally charged asset in a divorce. In South Carolina, if the house was purchased during the marriage, it’s generally marital property, even if titled in only one spouse’s name. Courts consider factors like the length of the marriage, each spouse’s contributions (financial or as a homemaker), and child custody arrangements when deciding who gets the house.
Options include one spouse buying out the other’s share, selling the home and splitting the proceeds, or temporarily retaining joint ownership. If you have primary custody of children, courts may favor awarding you the home to maintain their stability, but you’d need to show you can afford the mortgage and maintenance. If the house was yours before marriage and kept separate, you’re more likely to retain it, but any increase in value during the marriage may still be divisible.
Your Car
Cars acquired during the marriage are typically marital property, regardless of whose name is on the title. For instance, a car titled in your spouse’s name can still be awarded to you as part of the equitable distribution, with title transfer handled post-division.
Courts evaluate factors like each spouse’s need for transportation, financial contributions to the car’s purchase or maintenance, and fairness. If you owned a car before marriage or received it as a gift or inheritance (kept separate), it’s likely non-marital and yours to keep. If there’s a loan on the car, the debt will also be equitably divided, which can affect who retains it. Mediation or negotiation can help prioritize keeping your car by trading off other assets.
Other Property
Other property, such as furniture, jewelry, retirement accounts, or investments, follows the same marital vs. non-marital distinction. Items acquired during the marriage, like household goods or joint bank accounts, are marital and subject to division.
Under South Carolina law, courts consider 15 statutory factors, including the duration of the marriage, each spouse’s income and earning potential, marital misconduct, and tax consequences. Courts often start with a near 50/50 split for long-term marriages but adjust based on circumstances. Non-marital property, like premarital savings or an inheritance kept in a separate account, remains yours.
Legal Strategies For Keeping Marital Property
To maximize your chances of keeping your house, car, or other property, consider negotiating a settlement with your spouse through mediation or a separation agreement, as this gives you more control than a court decision.
Courts favor agreements that are fair and equitable. Documenting your contributions to marital assets and keeping non-marital property separate can strengthen your case. If retaining the house is a priority, you may need to trade other assets, like retirement funds, or refinance to buy out your spouse. Consulting an experienced South Carolina divorce attorney is critical to navigating these challenges, gathering necessary evidence, and avoiding pitfalls like undervaluing assets or overlooking tax implications.
How A Divorce Attorney Can Help You Keep Property
A divorce attorney is critical in helping you retain your house, car, and other property. They will help you understand your state’s laws for determining marital vs non-marital property distribution laws and advocating for your interests.
As noted earlier, courts in South Carolina divide marital property fairly but not equally, considering factors like each spouse’s contributions, financial needs, and marital misconduct. An experienced divorce attorney can strategically position you to maximize your share of assets, whether through negotiation or litigation.
Classifying Marital vs. Non-Marital Property
A divorce attorney’s first task is to help identify which assets are marital (subject to division) and non-marital (yours to keep). Marital property includes assets acquired during the marriage, like the family home, cars, or joint accounts, while non-marital property includes premarital assets, inheritances, or gifts kept separate.
An attorney will gather evidence, such as deeds, titles, or bank statements, to prove that certain assets, like a car you owned before marriage or an inheritance in a separate account, are non-marital. If you inadvertently commingled non-marital assets (e.g., depositing an inheritance into a joint account), your attorney can argue for transmutation exceptions or seek reimbursement for your contributions, increasing your chances of retaining those assets.
Building a Strong Case for Equitable Distribution
For marital property, such as the marital home or a shared car, your attorney will build a case to show why you should keep specific assets based on the 15 statutory factors courts consider, including financial contributions, homemaking efforts, and future needs. For example, suppose you have primary custody of children. In that case, your attorney can argue that you should keep the family home to provide stability, supported by evidence of your ability to afford it.
They’ll also highlight any marital misconduct by your spouse, like financial irresponsibility or infidelity, which can sway the court in your favor. By presenting a compelling narrative and supporting documents, your attorney ensures the court sees your entitlement to key assets.
Negotiating Settlements and Mediation
Most South Carolina divorces are resolved through negotiation or mediation, and a skilled attorney can negotiate a settlement that prioritizes your desired property. For instance, if keeping the house is your goal, your attorney might propose trading other assets, like retirement funds or a second car, to offset your spouse’s share.
They’ll calculate the value of assets and debts, using appraisals or financial experts if needed, to ensure the settlement is equitable and court-approved. A divorce attorney’s negotiation skills can secure a favorable agreement without the uncertainty of a trial, saving time and money while helping you retain what matters most.
Common Misconceptions About Keeping Property After Divorce
Divorce can be complex, particularly regarding the division of property. Keep the following misconceptions in mind, and talk to your divorce lawyer if you have questions:
Property in One Spouse’s Name is Not Marital Property
Many people believe that if an asset, such as a house or car, is titled solely in one spouse’s name, it cannot be divided during a divorce. In South Carolina, this is not true. Marital property includes all assets acquired during the marriage, regardless of whose name is on the title. For example, a home purchased during the marriage is considered marital property, even if only one spouse’s name is on the deed.
Non-Marital Property Is Never Divided
Some believe property owned before marriage or received as a gift or inheritance is automatically exempt from division. While South Carolina law generally considers such assets non-marital, they can become marital property if commingled with marital funds or titled jointly. For example, if you inherit money but deposit it into a joint account, it may be treated as marital property. Keep non-marital property separate, such as in a separate bank account or under your sole title, and avoid using it for marital expenses.
Each Asset Is Split Equally
People often assume that every asset, like a retirement account or savings, will be divided in half during a divorce. In reality, South Carolina courts focus on the overall value of the marital estate, not asset-by-asset division. For example, if one spouse has a $55,000 401(k) and the other has a $27,000 401(k), the court might award the smaller account entirely to one spouse and transfer a portion of the larger one to balance the total distribution.
Contact An Experienced Divorce Lawyer Now
Going through a divorce is difficult, and worrying about keeping your house, car, and other property adds additional stress. You’ve worked hard for your home, savings, and assets and don’t want them to slip away in a settlement.
An experienced Charleston divorce attorney at Henderson & Henderson will fight for your rights and secure what’s yours. Whether it’s your house, retirement funds, vehicle, or investments, our Charleston divorce attorneys will work to ensure you keep what you deserve.
