Family law is difficult. 90% of a family law attorney’s work is done outside of the courtroom. Part of that work is helping people get through a difficult time in their lives and get them on the right track for success and sustainability for the future. A major part of achieving that goal is the division of property after a marriage ends.
At a divorce or separate maintenance and support hearing, the property is initially divided on a temporary basis. More likely than not, one if not both spouses are going to be unhappy with how things get distributed by a judge at this hearing. The good news is that the results of this temporary hearing are not prejudicial. That means that this does not mean things will be distributed this way permanently. The judge’s goal in this temporary hearing is to keep the status quo, and allow the parties to function as smoothly as possible until the final hearing. However, even though the temporary hearing is not prejudicial, more times than not the final hearing is very similar to the temporary hearing’s allocation of marital property.
This does not mean that things will be split 50/50 between husband and wife. Things might start at 50/50, but the judge is to decide what is equitable between the parties. In some scenarios, one spouse is going to need more of the assets than the other needs. To better predict how this will turn out, the legislature has provided (§ 20-3-620) factors to be analyzed in determining how to equitably distribute the property. They are as follows:
- Duration of the marriage, along with the ages of the parties at the time of the marriage and divorce.
- Marital misconduct or fault of either or both parties.
- Value of the marital property.
- Income of each spouse, earning potential of each spouse, and opportunity for future acquisition of capital assets.
- Physical and emotional health of each spouse.
- Need of each spouse for additional training or education in order to achieve income potential.
- The nonmarital property of each spouse.
- Existence of vested retirement benefits for each spouse.
- Whether separate maintenance or alimony has been awarded.
- Desirability of awarding the family home to the spouse having custody of any children.
- Tax consequences to either party.
- Existence and extent of any support obligations from a prior marriage or for another reason.
- Liens and any other encumbrances on the marital property.
- Child custody arrangements and obligations at the time of the entry of the order.
- Such other relevant factors as the court shall expressly enumerate in its order.
As you can see, the court has very wide discretion over what it can look at to determine who gets what and how much of your assets. Considering these factors, the court has to do four things:
- Identify the marital property, real and personal, to be divided between the parties.
- Determine the fair market value of the property so identified.
- Identify the proportionate contributions, both direct and indirect, of each party to the acquisition of the marital property, their respective assets and incomes, and any special equities they may have in marital assets, and
- Provide for an equitable division of the marital property, including the manner in which distribution is to take place.
You know, and we know, that you are a better “judge” at deciding who should get what of your property and who should get how much of your property. We strongly urge you to come to an agreement with your spouse before-hand. That agreement can then be incorporated into the order of the court. This way, everything stays in your control and not the control of a judge you’ve never met before. This is where family law attorneys do their work. We know that spouses facing a divorce cannot always get along on matters or they wouldn’t be heading down the path towards divorce. An attorney can help you reach a fair and reasonable agreement while getting the best result for you.
Again, marital litigation is difficult. However, we are experienced in it and would love to try to make it as easy on you as possible. If you anticipate having equitable distribution issues, or facing any other marital litigation problem, contact King Law Offices at (864) 877-3355 and schedule an appointment with a South Carolina attorney. Rusty Duncan in Greer or Seth Johnson in Gaffney will be happy to talk with you and help you move forward in the way that best enables you to have a successful future.