What To Know About Property Division In Divorce

Preventing your “separate” or “non marital” property from being included in the division of the marital estate can become an important issue in a divorce proceeding. Here are a few simple steps you can take to help strengthen your case.  

South Carolina has created very clear rules regarding the identification and division of marital property. The bottom line is that if property was acquired during the marriage it is presumed marital.  If the property comes separately to one party, such as by inheritance or gift, the property will be presumed separate or non marital.

In divorce cases, people often argue that “separate property” has been transformed, or “transmuted”, into a marital asset that must be included in the division of the estate. Most of the time these kind of disputes involve an inheritance or a gift received by one of the parties before or during the marriage. In such situations, the court is required to look to the “intention of the parties” to determine whether the disputed property has lost it’s “separate” nature and should go into the the “pot” with all the other marital assets.  Here are a few steps that have helped our clients keep their separate property out of the division of the marital estate.

  • Get proof of title. Hopefully the property will be titled in your individual name. If the property is titled jointly with your spouse, you could have a problem keeping it separate.
  • If the property does not have a title, gather whatever documents, letters, notes, emails, etc. proving it was intended to come to you separately as gift or as an inheritance.
  • Gather whatever evidence you can find regarding how this property was used during the marriage.  Did you always keep it separate or did it become “transmuted” into marital property through the joint use of the property with your spouse.

We represented a man a while back who had been married 20 years to his wife.  15 years ago his wife and her 5 siblings inherited 20 acres of raw land on Johns Island.  Once the probate estate was settled, wife purchased for $5.00 her sibling’s shares of the land. Husband and wife then set about to build a house on this land where they lived until their separation about a year ago.

Our client believes that 4/5th of this property was acquired by his wife during the marriage and should be included in the marital estate.  He also believes the remaining 1/5th has been transmuted into marital property, and therefore the entire property should be subject to marital division.

We have asked our client to gather all of his bank statements and/ or canceled checks from the time the land was acquired and the home was built.  We will need to prove that husband was paying for the rent, groceries, utilities, trash collection, etc. while wife’s money was being used to purchase the land and build the home.  We also need witnesses who visited husband and wife at their home and can speak to how the home was used; did wife refer to it as “their” or “our” home, was it clear that the two of them had an equal say in home’s design, construction and use?

We will also need evidence that shows husband helped to maintain the property and/ or caused it to appreciate in value, such as doing landscaping work, painting, carpentry, etc. Fortunately, our client never fully trusted his wife and kept his receipts!

While the rules regarding property division in divorce seem to be clear, trying to glean the “intent of the parties” can be murky at best.  Proof of the “intent” may be difficult to prove in a long term marriage, and it may simply come down to the credibility, or believability, of the parties and their witnesses.

Related Posts