Property

FACTORS FOR DIVISION OF MARITAL PROPERTY

In making an apportionment, the Court must give weight in such proportion as it finds appropriate to all of the following factors:

1. The duration of the marriage together with the ages of the parties at the time of 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 be 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 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 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 for additional training or education of each spouse or either spouse in order to achieve that spouse’s 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 if 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.

For purposes of equitable distribution, marital debt is debt incurred for the joint benefit of the parties, regardless of whether the parties are legally jointly liable for the debt or whether one party is legally individually liable. Hickum v. Hickum, 463 S.E.2d 321 (Ct. App.1995).

In the equitable division of a marital estate, the estate, which is to be equitably, divided by the family Court Judge in the net estate, i.e. provision for the payment of marital debts must be apportioned as well as the apportionment of property itself. The Court held this to be implicit in the above statue. The same rules of fairness and equity, which apply to the equitable division of marital property, also apply to the division of marital debts. Frank v. Frank, 429 S.E.2d 823 (Ct. App.1993).

14.Child custody arrangements and obligations at the time of the entry of the order.

15.Such other relevant factors as the Trial Court shall expressly enumerate in its order. S.C. Code Section, 20-7-472 (1976, as amended).

The Court may simply say it considered the appropriate factors, and the Trial Court can assign the weight to the pertinent factors. Morehouse v. Morehouse, 452 S.E.2d 632 (Ct. App.1996).

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