Divorce can be a grueling process. One of the biggest questions many spouses face is: who will get to keep the house? The family home often represents stability, security, and a place to raise children, so the thought of losing it can be very upsetting.
In South Carolina, the rules of equitable distribution will determine how marital property, like a house, is divided in a divorce. This article will explain how houses are treated in South Carolina divorces and what factors determine who gets the house.
What is Considered Marital Property?
Marital property, in the context of divorce, refers to any property or assets acquired during the marriage by either spouse. The family home, if purchased during the marriage, falls within this category and is subject to property division during divorce proceedings.
In the event of a divorce, it’s crucial to determine whether the house is considered marital property. If the house was bought together during the marriage, it’s likely to be deemed marital property and subject to division.
How is Property Decided in a South Carolina Divorce?
South Carolina follows the principle of equitable distribution, which entails dividing marital property in a manner that is considered fair and equitable, although not necessarily precisely equal. Several factors, including the length of the marriage, the contributions of each spouse, and the custody of the children, influence the division.
When deciding who gets the house in a South Carolina divorce, the court considers who has primary custody of the children, if any, and the financial ability of each spouse to maintain the house. For instance, if one spouse wants the house but can’t afford the ongoing mortgage payments, the court may decide to award the house to the other spouse or order to sell the house and split the proceeds.
Marital Versus Separate Property in South Carolina
One key factor is determining whether the house is marital or separate property.
Marital property typically encompasses assets acquired during the marriage, often as a result of the contributions and efforts of either spouse. The marital home you lived in together is typically considered marital property, even if only one spouse’s name is on the deed.
Separate property belongs to one spouse alone. This may include:
- Assets brought into the marriage
- Gifts to one spouse
- Property acquired after separation
Separate property is not subject to equitable distribution. The spouse who owns separate property gets to keep it.
Who Gets the House in a South Carolina Divorce?
Determining who gets the house in a South Carolina divorce is not a straightforward process. The court will consider several factors, including the welfare of the children of the marriage. If one spouse has been the primary caregiver, they may be more likely to be awarded the house, especially if it is the primary residence of the children.
Additionally, the court will consider each spouse’s financial situation. If one spouse is financially capable of maintaining the house and making mortgage payments, they may be more likely to receive the house in the divorce settlement.
What If Both Spouses Want the House?
When divorcing spouses both want to keep the marital home, the court looks at several factors:
- Custody arrangements – If one spouse has primary custody of minor children, they may get priority to keep the house so the kids can stay in their home.
- Finances – The spouse who can afford to pay the mortgage, taxes, insurance, etc., without help is more likely to get the house. The court examines income, debts, and assets.
- Potential refinancing – If one spouse can qualify to refinance the mortgage into their own name, that improves their chances of retaining the home.
- Compensating the other spouse – The spouse keeping the house may need to buy out the other’s share of equity with cash or other assets.
If finances are limited, the court may order the house sold and proceeds split.
What If One Spouse Wants the House?
When only one spouse wants to keep the marital residence, the court will scrutinize their ability to afford it.
Factors examined include:
- Income and expenses – Can the spouse afford monthly mortgage payments, taxes, insurance, and upkeep alone? Do they have enough steady income?
- Credit score and debt – Does the spouse possess a credit score and debt-to-income ratio that would make them eligible for refinancing?
- Separate assets – Does the spouse have enough separate property to buy out the other spouse’s share of equity?
If the spouse cannot afford the home alone, the court will likely order it sold. The spouse may be given a chance to buy it themselves by refinancing or getting additional funds within a set time frame.
What if Neither Spouse Can Afford to Keep the House?
Sometimes, due to finances, neither spouse is in a position to keep the marital home after divorce. If both spouses agree, the ideal option is to sell the house and split the equity from the sale.
If you cannot agree, a family court judge can order the home to be sold. The net proceeds from the sale would then be divided equitably based on each spouse’s respective interest in the home.
It’s recommended to engage a real estate professional to help price and list the home competitively. The spouses or attorneys should draft an agreement governing the sale terms and process. This includes:
- Price listing and any repairs to be made
- Splitting costs of repairs and fees
- Division of net sale proceeds
- Living arrangements pending sale
Selling the house requires cooperation between spouses, but it is often the only realistic outcome when neither can afford to keep it. An experienced divorce lawyer can advise you on the process.
Deciding Who Gets the House: Factors to Consider
Dividing real estate like a shared home takes some care and planning. Here are some tips:
- Get an appraisal – Know the current market value before deciding who keeps it.
- Review finances – Check credit, debts, income, and assets to evaluate options.
- Consider tax implications – Selling may trigger capital gains taxes.
- Seek legal advice – Work with an experienced South Carolina divorce lawyer.
- Know separate vs. marital property laws – It impacts who gets what.
- Look at the whole picture – Housing is just one asset among many to split.
Work With a Divorce Attorney
Dividing real estate and determining who gets the house in a divorce can get complicated. An experienced divorce attorney can help you understand your options and rights. They can negotiate a fair property settlement on your behalf both in and out of court.
To get personalized legal guidance for your divorce situation, contact a qualified lawyer at Okoye Law in South Carolina today. With professional help, you can achieve the best possible outcome when dividing marital assets like your home.
Frequently Asked Questions
Are there community property rules in South Carolina?
No, South Carolina is not considered a community property state. Instead, it adheres to the principle of equitable distribution when dividing marital assets during divorce. This means that the court will consider various factors to determine a fair division of marital property, which may or may not result in an equal split.
Can I keep the family home if I want to?
It is possible to keep the family home, but it will depend on various factors. If the house is considered marital property, the court will take into account the value of the home and other assets to achieve a fair division. If you and your spouse agree, you may be able to negotiate a settlement where you keep the home.
What happens if the house is considered separate property?
If the house is deemed separate property, it may not be subject to division during the divorce process. However, other assets may still be divided, and the court will consider the value of the separate property when determining a fair division.