Property Division Rules and Your Divorce

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Divorce Lawyer Serving South Carolina & North Carolina Residents

When a couple decides to divorce, the property they possess at the time of the divorce is pooled and categorized.  Depending on the law of the state, the property is categorized and divided between the two parties.  A house at issue can be sold for the proceeds if it is necessary to bring forth a fair division. Property division rules vary from state to state. There are two main schools of thought when it comes to the division of property at divorce: (1) equitable distribution and (2) community property. Community property divides only the property that is made up of assets that come into marriage during the marriage through any means other than inheritance or gift. South Carolina and North Carolina; however, are equitable distribution states. A majority of states in the U.S. subscribe to equitable distribution rules.

Equitable Distribution

Equitable distribution says that assets and earnings that are acquired during the marriage are to be divided fairly at the time of divorce. Hence, the division is deemed “equitable.”  The property that falls into the category is called marital property.  As such, if the spousal home was purchased in the name of only one spouse during the marriage, the home is still considered marital because it was purchased during the marriage.  Although equitable distribution aims to bring a fair result, the division is not always equal. In certain cases, actions that bring about fault (i.e. adultery) and other behaviors that were adverse to the marriage can lower the amount for one spouse in favor of the other. Although the division is no longer “equal” in that sense, it is still equitable.

Non-Marital Property: The Exception

In some instances, certain assets that traditionally fall into “marital property” do not qualify because they have been excluded. One major way of excluding property is through a prenuptial agreement. Here, both parties agree that certain assets are owned by the party who acquired it, even if such asset is acquired during the marriage. Naturally, all assets acquired before the marriage are excluded. Further, an asset that is acquired by one party as a gift or inheritance is also excluded from division. 

Determination Process

To accurately determine the distribution, each party must make a full disclosure of their assets. Any attempt to evade disclosure is prohibited and can end in a contempt of court charge. After all assets are verified, each asset is examined to determine into which category it falls. After the marital property is properly defined, the division occurs based on equitable considerations.

North Carolina and South Carolina Family Law Attorney

If you need assistance with a property division case, contact the Minor Law Offices today. We provide passionate, knowledgeable and honest legal assistance with a client-focused and result-driven approach. We are happy to provide you with the peace of mind in knowing that your assets are rightly protected.

The information contained in this post is provided for informational purposes only, and should not be construed as legal advice on any matter.

Grandparent & Third-Party Rights in South Carolina

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Child Custody Family Law Attorney

In the area of child custody and parental rights, there is sometimes a lesser-talked about legal battle for grandparents seeking the privilege to care for or visit their grandchildren. The constitutional hardline is that parents possess a protected right in the care, custody, and control of their children. It is a fundamental right protected under the Due Process Clause of the United States Constitution. However, this very right is subject to augmentation where the parent is unfit to care for his or her children.  Where parental fitness is tested, other parties then have the right to make a claim to the court for custodial rights. In other instances, a third party may petition the court for visitation rights where parental rights are still intact.

Full Custodial Rights

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Full custodial rights given to a third party is a rarity if both or one parent is alive and fit to care of the child. However, there are some instances where grandparents are given parental rights over their grandchild or grandchildren. In South Carolina, a grandparent is permitted to qualify as the de facto parent only in a few circumstances. A de facto custodian is the individual in the child’s life who has shown to be the primary caregiver and financial supporter of the child.  The person seeking de facto parental recognition must prove their position in the child’s life by clear and convincing evidence among other factors.

Visitation Rights

Fiercely Fighting For Your Child Custody Family Law Rights

There are a few instances where a court will grant visitation rights to a third party over the parents’ objections. One instance is where the court determines harm will be done to the child if visitation is not allowed. Another instance is where a parent dies and the grandparents become an extension of the deceased parents. Pursuant to S.C. Code Ann. § 63-15-240, a judge may grant visitation rights to a grandparent when the visitation would be in the best interest of the child. It is important to note that the analysis will not favor what merely benefits the child, but also what will avoid harming the child. Secondly, under South Carolina law, and in an instance where a parent is deceased, a court can make a determination to award grandparent visitation. The court has to determine (1) whether the child will be deprived of the relationship, (2) whether a parent-child relationship was maintained, and (3) whether awarding visitation will interfere with the actual parent-child relationship.

Rock Hill Family Law Attorney

Caring, Compassionate, & Knowledgable Family Law Lawyer

If you need assistance with your family law case contact the Minor Law Offices today. We provide passionate, knowledgeable, and honest legal assistance with a client-focused and result-driven approach. If you are seeking custody or visitation of your grandchildren, call us now. We are happy to provide you with the peace of mind in knowing that your family will be protected.

The information contained in this post is provided for informational purposes only, and should not be construed as legal advice on any matter.