Property

MARITAL PROPERTY AND NONMARITAL PROPERTY

Nonmarital property is not subject to judicial apportionment. The term “marital property”, as used in this article, means all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of martial litigation as provided on S.C. Code 20-7-472, regardless of how legal title is held, except the following, which constitute non marital property.

1. Property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse.

2. Property acquired by either party before the marriage and property acquired after the happening of the earliest of (a) entry of a pendent 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. Property acquired by either party in exchange for property described in items (1) and (2) of this section.

4. Property excluded by written contract of the parties. “Written contract” includes any antenuptial agreement of the parties which must be considered presumptively fair and equitable so long as it was voluntarily executed with both parties separately represented by counsel and pursuant to the full financial disclosure to each other that is mandated by the rules of the family court as to income, debts and assets.

5. Any increase in value in nonmarital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage.

6. Interspousal gifts of property, including gifts of property from one spouse to the other made indirectly by way of a third party, are marital property.

7. If one spouse uses marital funds to purchase property after the commencement of Marital Litigation, the Family Court may award the other spouse, a special equity in the property. Greene v Greene, Ct. App. August 5, 2002.

The Court does not have jurisdiction or authority to apportion non-marital property. S.C. Code 20-7-473, (1976, as amended).

Bonuses are not “property” division, but are ordinary income, which is one of the bases for the amount of alimony awarded. Lineberger v. Lineberger, 399 S.E.2d 786 (S.C. App.1990).

In Sexton, The Supreme Court affirmed the trial Court’s determination that it had jurisdiction to determine whether the marital residence was marital property, even though the husband’s parents had title. Hough v. Hough, 400 S.E.2d 387 (1994).

Equitable distribution money awards are a judgment at 12% interest. S.C. Code Ann. 34-31-20 (1976, as amended).

The Family Court does not have jurisdiction to allocate properties of unmarried couples. When it becomes apparent that no marriage was involved, there could be no marital property as contemplated by our law. Hallums v. Bowens 428 S.E.2d 894 (Ct. App.1993).

Where one spouse has foregone career opportunities at the behest of the primary wage-earning spouse and throughout a long marriage has remained in the home to rear children and provide a suitable environment for the family, the homemaker spouse shall have upon divorce an equitable interest in real property acquired by the wage-earner spouse during the marriage. Which spouse has title to property is always important, but it is not controlling in a division of property in a domestic relations action.

In Donahue v. Donahue, 384 S.E.2d 741 (1989), a spouse took the benefit of his spouse’s support in obtaining a professional degree or license with the understanding that future benefits will accrue and inure to both of them. There the Supreme Court stated that it favored the “ all relevant factors” approach to the consideration of reimbursement by equitable division or alimony in these cases. Smith v. Smith, 418 S.E.2d 314 (Ct. App.1992).

When one party seeks to have a written agreement made an order of the Court it is incumbent upon the Family Court to determine that the agreement is voluntary and within the bonds of reasonableness procedurally and substantively. Blejski v. Blejski, 480 S.E.2d 462 (Ct. App.1997).

This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem.