Service Tag: family court mediation

Property Division

South Carolina is an “equitable distribution” state. Equitable distribution is the distribution of property and debt obligations used by the Court when dividing marital property during divorce proceedings. It does not mean “equal” division – it means “fair” division. So rather than a strict 50-50 split where each spouse received exactly one-half of the property acquired during the marriage, the doctrine of equitable distribution is used to look at the future financial situation of each spouse after the termination of the marriage. 

The court looks at the length of the marriage, the ages and health of each spouse, the amount of non-marital property, and any fault that may have affected the marital resources. Additionally, the court may consider the spouse’s need for additional training or education, retirement benefits, debts or liens on the marital property, whether any alimony is due, and potential tax consequences. 

Whether your marital property involves real estate, professional businesses, retirement plans, or other forms of property, let us put our knowledge and expertise to use in helping to resolve these marital property division matters. 

Marital vs. Separate Property

Marital property is property acquired or earned during the marriage, regardless of title. 

Separate property is property that either belonged only to one spouse before marriage or was acquired after the filing for divorce. Among other things, it could include some property given only to one spouse during the marriage.  

In South Carolina, separate property remains the property of the spouse who owned it before or during the marriage.

Real vs. Personal Property

Property is either marital or separate, and it includes assets and liabilities.

The most common types of property divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, dividends, and benefits.

All debts must be divided as well.

Valuing and Dividing Property

The court classifies assets and liabilities, property and debt, as marital or separate. Then it assigns a monetary value to the marital property and debt. Finally it distributes the marital assets between the two parties in an equitable manner.

Once all the property is valued, the court divides it based on a number of factors, including each spouse’s monetary contributions to property and appreciation in the value of the property, income, and the use of non-marital funds for the benefit of the marriage.  

The Marital Home

In South Carolina, the equity in the marital home is often one of the biggest assets the spouses divide. 

The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) are deducted from the market value to arrive at the equity to be divided. 

Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free. 

Pensions and Retirement Accounts

In South Carolina vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.

Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. 

The court may include the retirement benefits and plans earned by both spouses as marital assets available for division.


Mediation in South Carolina

Mediation is an informal form of the alternative dispute resolution (ADR) process. It gives both parties an opportunity to sit down with a neutral person called a mediator to try and work out an agreement.  The idea behind mediation is that most people would be happier with agreements they made themselves rather than a solution imposed on them by the Court. It is believed that most litigants are more capable than a judge of making the best decisions for their family as it relates to custody and visitation of their children. Mediation gives the family an opportunity to take charge of their family’s future. 

Mediation is required in all Family Court cases if there are any issues in dispute. If there are any unresolved issues about child custody or visitation, then you are required to mediate these issues early on. The mediation process must be completed before a final hearing can be scheduled. If a party fails to attend a scheduled mediation conference without good cause, the Court can impose sanctions. 

The parties may select a mediator, or one will be appointed by the Family Court. The mediator is paid by the parties who usually split the cost. In some cases, mediation may be exempt by the Family Court for good cause (i.e., mental incapacity, incarceration, spousal abuse, child abuse, substance abuse, etc.). 

Is mediation required in South Carolina?

The mediator, the parties, and their attorneys are required to attend the mediation settlement conference. They must participate in at least three hours of mediation unless an agreement is reached sooner. If an agreement is reached, the mediator will draft a Memorandum of Agreement to be signed by the parties. –Marriage and Divorce Law in South Carolina