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Holland & Usry, P.A.

What are the factors the courts consider in equitable division of marital assets and debts?

South Carolina law sets forth factors for the court to consider when dividing married folks’ assets and debts. The factors the court considers are as follows:

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;

(2)  marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:

(a) entry of a pendente lite order in a divorce or separate maintenance action;

(b) formal signing of a written property or marital settlement agreement; or

(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

(3) the value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;

(4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;

(5) the health, both physical and emotional, of each spouse;

(6) the need of each spouse or either spouse for additional training or education in order to achieve that spouses' income potential;

(7) the nonmarital property of each spouse;

(8) the existence or nonexistence of vested retirement benefits for each or either spouse;

(9) whether separate maintenance or alimony has been awarded;

(10) the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;

(11) the tax consequences to each or either party as a result of any particular form of equitable apportionment;

(12) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;

(13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;

(14) child custody arrangements and obligations at the time of the entry of the order; and

(15) such other relevant factors as the trial court shall expressly enumerate in its order.

Why You Need to Consult an Attorney

When facing the breakdown of a marriage, many things are at stake—one of which is the apportionment of marital assets and debts. The court can make a determination as to who receives the marital home, decide whether or not retirement accounts are divided, address ownership of family businesses, and divide any other asset which is deemed marital property. Likewise, the court can require one party to be responsible for certain debts over the other, and vice versa. For this reason, when you are facing a divorce or other marital litigation where the division of assets and debts needs to be determined, you must have an attorney who can advocate for you.

Your attorney should be able to explain the factors as set forth above and how they are often considered by the courts. Additionally, your attorney needs to know how to best present evidence to the family court as to the facts in your case and how they are applied to the factors for consideration in order to obtain the best possible result for you under the circumstances.

If you have questions about divorce or would like to discuss the division of assets and debts, please call toll-free 888-230-1841 to set up a consultation.

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