According to the U.S. Census Bureau, most families keep the majority of their wealth in home equity. Homeownership is a central part of the so-called “American dream,” and purchasing a family home is an important chapter in numerous marriages. If divorce occurs, the family home often represents the most lucrative asset in the marital estate. As a result, spouses tend to focus on this piece of property during the equitable distribution process for obvious reasons. In order to determine who might retain the family home in divorce, spouses may benefit from further discussions alongside a family law attorney in South Carolina. Consider contacting our dedicated family law attorneys at King Law Offices at (888) 748-KING to learn more.
Is the Family Home Separate or Marital Property?
In order to determine who retains the family home in divorce, spouses must first gain an understanding of equitable distribution in South Carolina. This process divides property into two categories:
- Separate Property: Although many spouses assume that they must hand over 50% of their wealth in a divorce, this is not always the case. Some property is exempt from division, and South Carolina family courts refer to this as “separate property.” Everything a spouse acquires prior to signing their marriage contract falls into this category. If a spouse acquires separate property after the date of separation, these assets are also “separate.” Finally, all inheritance and gifts are separate property, regardless of when spouses acquire them.
- Marital Property: Unlike separate property, marital property is subject to the equitable distribution process. The definition of marital property is quite straightforward, and it encompasses everything acquired during the marriage (excluding gifts and inheritance). In some cases, marital property may also include the appreciated value of separate assets.
When determining what happens to the family home in divorce, the first step is to assess whether the residence is separate or marital property. If a spouse acquires a family home prior to signing their marriage contract, they will likely retain ownership of the property after the divorce. If spouses acquire the home during their marriage, however, the residence becomes marital property – and each spouse can expect to receive approximately 50% of the market value.
South Carolina Family Courts Consider Many Factors When Determining What Happens to the Family Home in Divorce
According to the South Carolina Bar, a Family Court Judge will consider various factors when determining what happens to the family home in divorce. Note that “equitable” is not the same thing as “equal,” and spouses could receive a lower or higher share of the family home depending on these various factors:
Marital Misconduct
Family courts may consider marital misconduct in South Carolina when deciding what happens to the family home in divorce. The most relevant example is “wasteful dissipation of assets,” which involves intentional or reckless losses caused by one spouse. For example, a spouse might punch holes in the walls, destroy cupboards, and smash the windows in a violent rage after learning about the impending divorce. The cost of these repairs could be subtracted from their share of the family home.
Spouses might also waste marital assets in ways completely unrelated to the home. For example, they might fund an adulterous affair – spending significant sums on lavish gifts and vacations for their illicit partner. These sums might also be subtracted from their share of the family home.
Sweat Equity
Instead of causing the family home to lose value, a spouse might increase the value of the property through “sweat equity.” The South Carolina Bar specifically mentions this term, which represents “DIY” renovations carried out by a spouse during their marriage. For example, a spouse might renovate a bathroom without hiring contractors.
Alternatively, a green-thumbed spouse might carry out various gardening projects without relying on landscapers. Even minimal improvements can increase the market value of a home, especially when it comes to “curb appeal.” Family courts may reward spouses who make these efforts, giving them a greater share of the family home.
Child Custody
Child custody can have complex effects on who retains the family home in divorce. Child custody is one of the various factors that family courts consider during equitable distribution. If a spouse wins primary custody of the children, they may be more likely to remain in the family home. This is because family courts generally try to limit psychological turmoil for children, and moving out of the family home can be difficult for young ones. That being said, the intersection of child custody and property division is a complicated issue – one that spouses might prefer to discuss with the experienced South Carolina attorneys at King Law Offices.
Do I Have to Sell the Family Home in Divorce?
Although both spouses may fight for the family home, neither may live in it after divorce. Family courts often order both spouses to sell the property and divide the cash proceeds – especially if they cannot agree on how to handle this asset through mediation or collaborative law. Many spouses choose to sell their family home due to financial pressures caused by divorce. For example, a spouse who became dependent on dual income during marriage may struggle to make mortgage payments when earning less as a single person.
There are various alternatives to selling the family home, and spouses can discuss these possibilities alongside South Carolina divorce lawyers. One option is for a spouse to give their ex sole ownership of the family home in exchange for a cash buyout. For example, the spouse may accept a buyout of $150,000 before letting their ex have a family home worth $300,000. These buyouts do not necessarily involve cash, and spouses can trade assets instead.
Contact King Law Offices Today To Ensure Your Legal and Financial Rights Remain Protected in Your Divorce
Many spouses ask what might happen to the family home in divorce. However, it may be difficult to answer this question through online research alone. The fate of the family home depends on numerous factors, and it might help to discuss these factors alongside experienced South Carolina equitable distribution lawyers. Once these factors become clear, spouses can begin to tackle their property division needs more efficiently. Reach out to our legal team at King Law Offices at (888) 748-KING to begin this important discussion today.