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Property Rights in Divorce

Marital property is real or personal property acquired during the course of the parties' marriage through the use of marital funds, or through the sale of additional marital property. Real property is real estate; personal property is tangible property, such as automobiles, boats, furniture, and household items.

Any property that is given to either spouse as a gift from a third party (not the other spouse) during the marriage, as well as any property inherited by either spouse during the marriage, is considered to be non-marital, unless the receiving spouse does something to indicate that he or she wishes for the property to be shared with the other spouse, such as deeding real property in both spouses' names, which would turn it into marital property.

Many states have community property laws, which provide that spouses equally divide any and all property acquired by both spouses, with a few exceptions, during their marriage. South Carolina is an equitable division state; that is, the Family Court Judge hears the evidence from both spouses and then determines what he or she thinks is a fair and equitable division of marital property.

The Judge considers a number of factors in making the decision. It does not matter in whose name property is titled in South Carolina, so long as the property was purchased during the marriage, and that marital funds were used, at least in part, to purchase the property. In dividing the equity interest in the marital home, for example, the Judge will consider both spouses' contributions to the home, whether financial or in-kind, through "sweat equity." A temporary order may divide property completely differently than a Final Order. 

This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem. If you have questions about the law you should consult a lawyer. If you do not know a lawyer, you can call the South Carolina Bar Lawyer Referral Service weekdays between 9 a.m. and 5 p.m. The number is 799-7100 in Richland or Lexington Counties, and 1-800-868-2284 from other parts of the state.