Division of Property

Property

DIVISION OF PROPERTY

The ultimate objective of the Family Court in effecting a division of the marital property is to do so fairly and equitably.

The Court will follow a three - step procedure with respect to the equitable division of the property:

1. Determine the existence of and assign to each party his or her non -marital property;
2. Determine the value of each item of marital property not already distributed, and;
3. Decide how division of the net marital property can be made most equitably.

The proper date to value marital property is the time the marital litigation filed or commenced. Smith v. Smith, 363 S.E.2d 404 (Ct. App. 1987), but may be reviewed at the hearing date, Mallet v. Mallet, 473 S.E.2d 804 (Ct. App.1996).

Date of Acquisition and Valuation

In cases involving successive marital litigation actions, the date of valuation is the filing date of the same litigation, which brings about the equitable division. Chanko v. Chanko, 490 S.E.2d 630 (Ct. App. 1997) (holding that the trial court correctly ruled that the property valuation date was the date of filing the current divorce action, not a previous action that was stricken for failing to prosecute within 270 days).

Dividing Land (Partition Actions) in the Circuit Court

Gilley v. Gilley, 488 S.E.2d 310, (1997), held that the Circuit Court has jurisdiction to consider a partition action filed by one spouse while both spouses are still living in the marital home, if marital litigation has not yet commenced, and to retain jurisdiction even if marital litigation is subsequently initiated in the Family Court.

Marital litigation is litigation which seeks to alter or terminate the marital status of the parties. Brown v. Brown 368 S.E.2d 475 (S.C. App. 1988).

Inter-spousal gifts are marital property accessible for distribution upon divorce. S.C. Code 20-7-473 (1976, as amended).

Marital businesses are to be valued at fair market value as ongoing business. RGM v. DEM, 410 S.E.2d 564 (1991).

A profit sharing plan is marital property. The husband’s primary contention is the plan should be excluded because he makes no monetary contributions to its accumulation. It is evident as employer makes a contribution to a retirement fund as an employment benefit or as a free form of an additional compensation, as opposed to an out right gift to the employee, the contribution is marital property and subject to equitable division. Hardwick v. Hardwick, 399 S.E.2d 791 (CT. App.1990).

In dividing a defined benefit plan the Court typically calculates using actuarial evidence, present value of pension and then calculates percentage of present value attributable to marriage and appropriate equitable share of other spouse. It may also include possibility of forfeiture, and tax implications. Belton v. Belton. 481 S.E.2d 174 (Ct. App.1997).

A 23-year marriage is basically a 50/50 division. Tinsley v. Tinsley, 483 S.E.2d 198 (Ct. App.1997).

Military retirement is a martial asset rather than income. Tiffault v. Tiffault, 401 S.E.2d 157 (1991).

Military benefits are assets. Ball v. Ball, 445 S.E.2d 449 (1994); Fisher v. Fisher, 462 S.E.2d 303 (Ct. App.1995), but disability retirement is income and not martial property. Tinsley v. Tinsley, 483 S.F.2d 198 (Ct. App.1997).

This Court has previously held that pensions and other benefits are martial property because they are compensation for services during the marriage, although not received until a later time. Lineberger v. Lineberger, 399 S.E.2d 786 (Ct. App.1990). The two common methods of valuing pensions are: (1) present cash value, and (2) distributing from each payment. Smith v. Smith, 418 S.E.2d 314 (S.C. App. 1991).

DIVISION OF PROPERTY

When a spouse destroys or dissipates assets during divorce proceedings to prevent to other spouse from receiving a fair share of marital property, the value of the wasted assets should be calculated as of the commencement of marital litigation and added to the marital estate and the entire value of the wasted assets should be assessed against the wrongdoer’s share of the marital estate, even if it will have severe consequences. Dixon v. Dixon, 334 S.C. 222, 512 S.E.2d 539 (Ct. App. 1999).