In a South Carolina divorce, courts divide property under the rules of equitable distribution. That means property is distributed fairly, not necessarily equally (50/50). Courts explicitly treat marriage like an economic partnership, ensuring each spouse is recognized for their role and contributions when deciding how to fairly divide property. A court will weigh many factors, including but not limited to each spouse’s unique situation, their contribution to the marriage, the individual needs of each party, and the length of the marriage. But how will my property be divided if I get divorced without a prenup? And, how can a prenup protect my assets? Keep reading to learn the answers to your questions and to find out more about prenuptial agreements.
Marital property versus separate property
In a divorce, South Carolina courts distribute marital property, but non-marital property (aka “separate property”) belongs to the original owner and is generally, but not always, immune from distribution. Under Section 20-3-10(A) of the South Carolina Code, marital property is anything acquired during the marriage, regardless of whose name is on the title, up until the filing of divorce (S.C. Code § 20‑3‑630(A)).
Some exceptions to marital property include inheritance, property owned before marriage, and assets protected by a prenup, along with appreciation on those non-marital assets. These assets will usually remain separate property.
But keep in mind, any of these separate property assets can be found to have mixed or commingled with marital property to the point where they transformed into marital property and will be distributed upon divorce. Some ways that this can happen is if you use a separate home as a marital home or the other spouse’s efforts cause the value of a separate asset to increase.
How separate assets can become marital assets
For instance, in the 2013 case of Wilburn v. Wilburn, the South Carolina Supreme Court confirmed that trust distributions can be marital property especially when a spouse consistently uses their trust payments to support the marriage. In this case, the trust itself remained separate property since it wasn’t owned by either spouse, but the distributions from that trust were considered marital property. The court looked at the intentions of the parties regarding the funds and how the parties treated those funds. Depositing separate property into a joint account and managing the funds with a spouse can transmute that separate asset into a marital asset (Wilburn v. Wilburn (2013)). That’s a critical distinction for anyone dealing with inherited trusts or family funds.
The 2014 case Pittman v. Pittman also shows that the classification of assets is not always cut-and-dry. In this case, the husband’s land surveying business was originally separate, but the South Carolina Supreme Court found that due to joint contributions and intentional commingling, it was transmuted into marital property. When spouses combine efforts or hide assets for the family’s benefit, courts can treat traditionally separate property as marital (Pittman v. Pittman 2014)).
What’s the process of distributing property in South Carolina?
In a divorce, courts in South Carolina first identify what is marital property versus what is non-marital property or separate property. Second, the court fairly divides marital property. South Carolina courts look very closely at each marriage when determining what a fair division of assets should be. Some factors a court will consider are the financial and non-financial contributions of each party, the length of marriage, the age and health of the parties, and previous financial obligations, such as child support from a previous marriage. Judges will also consider whether there was misconduct in the marriage such as adultery. If a spouse’s adultery led to wasting marital assets, an unfaithful spouse could see a less favorable division of assets because they used family funds for the affair. A court will weigh all these issues and more before deciding a fair split.
Are stay-at-home moms protected in South Carolina without a prenup?
When a person chooses to forgo their career and stay home to raise the children full-time, this is a generous and oftentimes overwhelming undertaking. This person is sacrificing an income, building savings, contributions to work-related retirement plans such as a 401(k), career advancement, and networking opportunities, all to be home and help the most important members of the family grow. This choice also saves the marriage a significant amount of money on childcare expenses. This contribution should be acknowledged for the enormous value it brings to the family. Fortunately, in South Carolina, some courts have specifically recognized this contribution when deciding how to distribute marital property.
In the 2016 case Conits v. Conits, the Court of Appeals affirmed the family court’s decision to divide marital assets evenly, 50% to each spouse, despite the husband having contributed more financially. What stood out was the court’s clear acknowledgment that the wife’s role as a traditional stay‑at‑home spouse and homemaker was a significant contribution to the marriage. As the court explained, “Although Husband provided far greater direct contributions to the parties’ assets, Wife contributed in the traditional stay‑at‑home spouse role that the parties contemplated and agreed upon.” This case is a strong example of South Carolina’s commitment to equitable, not just equal, distribution, especially valuing non‑financial contributions like child‑rearing and homemaking.
Another compelling example is the 2018 case Smith v. Smith, where the wife became a full‑time stay‑at‑home mother early in the marriage and remained out of the workforce for most of it. The court awarded her 57.2% of the marital estate, explaining that her choice to leave an established career to care for their twins was a major marital contribution. These cases illustrate South Carolina’s recognition that a stay‑at‑home spouse plays a vital role, both emotionally and financially, when dividing marital property. But, be warned that just because some South Carolina case law values non-financial contributions during marriage, there is no guarantee that a divorce settlement will balance-out your financial situation.
How can a prenup protect my assets?
In South Carolina, where divorce law follows an equitable distribution model, a prenuptial agreement can be the calm before the storm. This document has the power to turn a potentially messy property battle into a graceful exit strategy. Instead of letting a judge decide what’s “fair” when emotions are running high, a well-drafted prenup lets couples make those decisions themselves, while everyone is still speaking in inside jokes and sharing dessert.
A prenup can clearly define what counts as separate property, how future income or inheritances should be treated, and even outline how debts will be divided. You can also add language into your prenup that will outline how to handle finances should one of you chooses to leave a career to raise children. These provisions could include an allowance towards the child-rearing spouse’s separate bank account or post-divorce payments to account for the time a party was not earning an income. South Carolina courts generally uphold prenups, as long as they’re entered into voluntarily, with full financial disclosure, and aren’t unconscionable. So, whether you’re bringing significant assets into the marriage or just want to preserve harmony in case love turns to logistics, a prenup gives you the power to write your own rules before the state’s default rules write them for you.
The bottom line of property division in South Carolina
South Carolina’s property division law is smart to recognize that marriage is a partnership. The law carefully defines marital property, and courts consistently use fair and nuanced methods to divide assets. A judge considers many aspects of marriage dynamics and might even consider adultery, misconduct, and misappropriation of marital funds when deciding the fairest way to divide assets. A collaborative and proactive way for you and your partner to protect your finances and avoid pricey court and legal fees in the future is to draft a prenup with an experienced attorney or through a trusted online prenup drafting platform like HelloPrenup.
Now that you’ve educated yourself on the basics of property distribution in South Carolina, sit down with your partner and have important financial conversations. Make sure that the Charleston bungalow you’ve owned for years stays your separate property, and that your fiancé will be responsible for their student debt if there’s a divorce in the future. Get these critical decisions out of the way now, then get back to the most fun parts of planning for your future together!
Jourdan Stewart is Legal Operations Attorney at HelloPrenup, and a Texas licensed attorney. Jourdan is experienced in drafting prenuptial agreements, and her legal expertise extends to other aspects of family law, business law and entertainment law. Jourdan earned her law degree from Pepperdine University, her MBA from The Acton School of Business, and her BBA from Baylor University. Jourdan’s favorite aspect of legal practice is helping clients fully understand and achieve their goals. She finds great satisfaction in tailoring solutions to each client’s unique set of wants and needs. When she’s not practicing law, Jourdan can be found in nature with her two children and their dog, Stewey.
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