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.