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Steven  K.
Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1672
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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My Wife and I are probably headed for separating/Divorce. The

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My Wife and I are probably headed for separating/Divorce. The Home we live in is in her Name. What are my Legal Rights. I hate the thought of "Setting things up" for the next Guy that comes along. I have equal Money invested just as she does. Most of the Home furnishings are from my first home before we were Married. Please advise in South Carolina
Submitted: 4 years ago.
Category: Family Law
Expert:  Steven K. replied 4 years ago.
Chat Conversation Started
Steven Kincaid :

First of all, South Carolina is not a community property state. This means that your assets and debts do not have to be divided equally, they only need to be divided "fairly"...

Steven Kincaid :

In doing so, the courts usually start out trying to make things equal, but there are plenty of reasons that an unequal property division might be fairer (such as where one spouse runs up a large gambling debt.) There could be other less obvious reasons as well.

Steven Kincaid :

The Court may want to know whether your wife purchased the house prior to your marriage or during the marriage, how payments were made on the house (i.e. were marital funds used on the house), how much equity is in the house and so forth.

Customer :

Does that mean that I could possibly have to just cut my losses and get screwed over,and end up with nothing?

Steven Kincaid :

Also, were the investments acquired before or after you married?

Steven Kincaid :

Well, I'm not sure what you mean by that. Are you asking whether you would lose any interest in the house and the furniture?

Steven Kincaid :

You should not end up with nothing - theoretically you should end up with your fair share of the marital property and debt.

Steven Kincaid :

What your fair share is must be decided by a judge (unless you and your wife can agree to something.)

Customer :

After we got married because at the time;my Credit score was not streong enough to be the holder of the Mortgage.

Steven Kincaid :

Because South Carolina is an "equitable division" state, there are no cut and dried rules, but the fact that the house was purchased after the marriage (and presumably with marital funds) would probably give you some right either to 1) the house or at least 2) reimbursement for marital funds used to pay for the house.

Steven Kincaid :

Here is the definition for marital property in South Carolina...

Steven Kincaid :

SECTION 20-3-630. Marital property; nonmarital property.


(A) The term "marital property" as used in this article means all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation as provided in Section 20-3-620 regardless of how legal title is held, except the following, which constitute nonmarital property:


(1) property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse;


(2) property acquired by either party before the marriage and property acquired after the happening of the earliest of:


(a) entry of a pendente lite order in a divorce or separate maintenance action;


(b) formal signing of a written property or marital settlement agreement; or


(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;


(3) property acquired by either party in exchange for property described in items (1) and (2) of this section;


(4) property excluded by written contract of the parties. "Written contract" includes any antenuptial agreement of the parties which must be considered presumptively fair and equitable so long as it was voluntarily executed with both parties separately represented by counsel and pursuant to the full financial disclosure to each other that is mandated by the rules of the family court as to income, debts, and assets;


(5) any increase in value in nonmarital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage.


Interspousal gifts of property, including gifts of property from one spouse to the other made indirectly by way of a third party, are marital property which is subject to division.


(B) The court does not have jurisdiction or authority to apportion nonmarital property.

Customer :

I just dont want to give-up any monetary/property rights knowing that I have invested my Hard-earned Money just as much if not more than she has. Not to mention helping to Pay for her earning her Masters Degree. She makes more Money than I do thanks to that

Steven Kincaid :

The definition I just showed you does not exclude a house just because it is in one spouse's name.

Steven Kincaid :

And here are the factors to be considered by the judge in dividing the property...

Steven Kincaid :

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;


(2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:


(a) entry of a pendente lite order in a divorce or separate maintenance action;


(b) formal signing of a written property or marital settlement agreement; or


(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;


(3) the value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;


(4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;


(5) the health, both physical and emotional, of each spouse;


(6) the need of each spouse or either spouse for additional training or education in order to achieve that spouses's income potential;


(7) the nonmarital property of each spouse;


(8) the existence or nonexistence of vested retirement benefits for each or either spouse;


(9) whether separate maintenance or alimony has been awarded;


(10) the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;


(11) the tax consequences to each or either party as a result of any particular form of equitable apportionment;


(12) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;


(13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;


(14) child custody arrangements and obligations at the time of the entry of the order; and


(15) such other relevant factors as the trial court shall expressly enumerate in its order.

Steven Kincaid :

So, they can consider just about anything in deciding what is fair.

Steven Kincaid :

I do not know how long you have been married, but you can certainly request alimony. Just as with property division, the Court considers many factors...

Steven Kincaid :

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;


(2) the physical and emotional condition of each spouse;


(3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse's income potential;


(4) the employment history and earning potential of each spouse;


(5) the standard of living established during the marriage;


(6) the current and reasonably anticipated earnings of both spouses;


(7) the current and reasonably anticipated expenses and needs of both spouses;


(8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;


(9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;


(10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;


(11) the tax consequences to each party as a result of the particular form of support awarded;


(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and


(13) such other factors the court considers relevant.

Customer :

we dont have any Children so I hope that would be one less factor to come into play. I just want Fair and as close to Equal Division as Humanly possible

Steven Kincaid :

I know this is a lot of information because I have basically cut and pasted the entire law, but the gist of both alimony and property division is that the court can do whatever it thinks is fair, but it must consider the factors listed.

Steven Kincaid :

In both cases, that law could be favorable to you.

Steven Kincaid :

Since the Court has so much discretion, however, it is impossible to accurately predict the outcome of a divorce proceeding.

Steven Kincaid :

But I think it is clear that unless you have executed an agreement giving her the house, the house is marital property.

Steven Kincaid :

It would come into play in property division.

Customer :

Thank you for your assistance. I need all of the Help I can get. Her Uncle is a local Attorney in a nearby county and I know she has probably been in his ear about the situation.Just wanted to know if I would be Fighting in vain for what I feel is right

Steven Kincaid :

It is hard when the other party gets free legal advice. Well, I'd be happy to answer any other questions you have. If you feel that my information has been helpful for now, and you will not request a refund of your JustAnswer deposit, I would appreciate if you could click on the green ACCEPT button as I do not get credit for my work until you do so. Thank you!

Customer :

It is the BEST money that I have spent ON-line Be Blessed. Pressing the Accept button now!

Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1672
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
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