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Ray, Employment lawyer
Category: Employment Law
Satisfied Customers: 42182
Experience:  30 years in Employment law
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If I am a female retired state employee in South Carolina

Customer Question

If I am a female retired state employee in South Carolina whom draws a monthly retirement check and I am considering divorce from my husband of 37 years, will I be required to provide him with a portion up to 1/2 of my monthly benefits. He draws a retirement
check from his previous employer and currently earns in excess of $100, 000.00 from his landscaping business. Will I need to split my retirement check with him?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ray replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert help you today.

Your retirement is considered marital property here but so is his business and his retirement as well if it all was earned during marriage.It is very likely that you get to keep your retirement here and he keeps is.

Certainly you are due a fair division of all of these assets during a divorce and property division.

Equitable division (or “equitable apportionment” in South Carolina law) means that the property will be split between spouses in a way that is equitable. The court decides what’s equitable, or fair, based on a set of factors designed to show the complete picture of the marriage’s assets and what each spouse will need to move forward after divorce. The division does not have to be equal to be fair.

You are due a fair division here.Hopefully you can work it out or the court divides it all .

I appreciate the chance to help you today.I wish you the best here with the divorce and moving on.Thanks again.

Expert:  Ray replied 1 year ago.

If the court divides the retirement benefits your and his it is done by something called a QDRO--qualified domestic relations order.It specifically sets out who gets what and how much.Here since you both have pensions you can negotiate to keep yours and he keeps his.All of this is negotiable.

Customer: replied 1 year ago.
I saw a divorce lawyer who says that parts of the business are non-marital property. How can this be accurate?
Expert:  Ray replied 1 year ago.

It depends on whether it was all acquired during the marriage.The court has to classify the property here as marital or separate unless you can agree to resolve it between yourselves.Remember presumption here is that it is marital and other side has to prove otherwise.Your lawyer here can protect and fight for a fair equitable division and your pension here.

I am so sorry you are having to go through this.I hope you are able to get fair division of all of this .

Thanks again.

Expert:  Ray replied 1 year ago.

§ 20-3-630. Marital property; nonmarital propety.

(A) The term "marital property

" as used in this article means all real and personal property which has been acquired by

the parties duringthe 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 byeither partybyinheritance, devise, bequest, or gift from a party other than the spouse;

(2) property acquired byeither 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) ormal signing of

a written property or marital settlement agreement; or(c)entryof a permanent order of separate maintenance and support or of a permnentorderapprovinga propertyor marital settlement agreement between the parties;

(3) property acquired by either party in exchange forpropertydescribed in items (1) and(2) ofthis section;

(4) property excluded by written contract of the parties. "

Written contract"includes anya ntenuptial agreement of the parties which must be considered presumptively

fair and equitableso 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 increaseresulted directlyor indirectly

from efforts of the other spouse duringmarriage.

Interspousal gifts of property, including gifts of propertyfrom one spouseto the othemade indirectly

by wayof a third party, are marital propertywhich is subject to division.

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