Asset Division in Divorce

Equitable Division of Property In South Carolina Divorce

The key to understanding equitable division in a South Carolina Divorce matter is the word “equitable”.

Equitable means “dealing fairly and equally with all concerned”. The factors in section 20-3-620  of the South Carolina Code require a court to look at the entire nature of the marriage, and not focus on one or two issues that may be presented by the divorce attorney. For example, the fact that the marriage may have been “short term” and that husband made all of  the money that contributed to the acquisition of the marital estate are only 2 of 15 factors. All factors must be considered with weight being placed where the court finds appropriate.

We have been instructed and reminded, however, that while and an equal division is not the law, it must be the starting point when considering asset division for a long term marriage. Last year the South Carolina Supreme Court ruled in Crossland v Crossland:

“[w]hile there is certainly no recognized presumption in favor of a fifty-fifty division, we approve equal division as an appropriate starting point for a family court judge attempting to divide an estate of a long-term marriage.” Doe v. Doe, 370 S.C. 206, 634 S.E.2d 51 (2006). The purpose of the general fifty-fifty division is to protect the non-working spouse who undertook the household duties, and to prevent an award “solely based on the parties’ direct financial contributions.” Avery v. Avery, 370 S.C. 304, 634 S.E.2d 668 (Ct. App. 2006).

Also, be advised that just because a party does not make “direct” financial contributions, does not mean he or she has not contributed to the marital estate. Often times, as is our predilection as Americans, we overemphasize the value of material things. One of the criteria a court is specifically required to consider in making an equitable division of marital assets is the “homemaker contribution” found in 20-3-620(3): “…the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence”.

The homemaker contribution is not as easy to prove as material contributions, for obvious reasons, but it needs to be done in order to give a spouse who is not making the cash an even chance before a judge. For example, think of all the things a homemaker does every day that can not be easily quantified on a bank statement or in a real estate appraisal: Waking the kids up in the morning, making breakfast for the family, coordinating car-pools to and from school, monitoring homework, laundry, scheduling family activities, cleaning, maintaining family finances, etc.

A paper written several years ago attempts to measure the economic value of household production (the homemaker contribution), or work done in the home that includes childcare, cooking, shopping, housework, odd jobs, gardening, and schlepping around. It is estimated that these activities increase in household income by as much as 30%!

On April 8, 2015 the South Carolina Court of Appeals ruled that a 50-50 asset division in divorce cases can extend to “short term” marriages. Brown v. Brown. In a lengthy factual summary the court found that “Wife acknowledges—and we agree—that the parties’ eight-year marriage was not a long-term marriage. Despite this fact, we believe the family court acted within its well-fettered discretion in awarding Wife 49.60% of the marital estate. We find the circumstances of the parties’ marriage merit such an award as reflected by the family court’s thorough consideration of all the relevant factors from section 20-3- 620.

In fact, the Brown court even went a bit further and said “ we find the greater financial contributions outcome determinative, particularly when Wife’s indirect contributions to the marriage far outweighed those of Husband”. 

The attorney representing Ms. Brown clearly did an excellent job of presenting credible evidence to the trial court of his client’s non material contribution to the marital estate. Not only did this financially benefit Ms. Brown, it was also “equitable” as it dealt fairly with all concerned by considering all contributions made by both parties, whether tangible or intangible

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