Property Division & Settlement Separation Agreements
Dividing up money, debts and everything in your home can be one of the most contentious and emotionally charged aspects of divorce.
You may be afraid that you and your children will have to move out of your home. You may feel worried or angry about giving your spouse things that you worked hard for. You may know little about the household finances and are unsure whether there are assets or debts, or whether your spouse is hiding things from you.
At the LaMantia Law Firm, property division and settlements are a big part of what we do. We understand the stress of dividing the things that encompassed your life together.
Even if you think you know how you want to split your property, it's important to consult with a lawyer who understands the laws related to property division. A lawyer can explain and give you a full understanding of your rights. Our firm has extensive experience with property settlements and we have presented at seminars to teach other lawyers how to draft property settlement agreements.
Our experience tells us that in most cases, you and your spouse will eventually be able to agree on a property settlement – no matter how unlikely that seems at first. People sign marital settlement agreements because:
- Litigating a divorce all the way to trial is expensive.
- An agreement lets you decide the major issues in your divorce rather than having them decided by a judge who doesn't know you.
- A settlement agreement can allow you to conclude the divorce process more quickly.
At the LaMantia Law firm, we gather information and evaluate your true financial picture. We explain which property must be divided and which is yours alone. We will work hard to help you make a settlement that achieves your goals and prepares you to move forward with your life.
And if a settlement isn't possible, we will aggressively represent you at trial.
How Property Division Works in South Carolina
In South Carolina, there are two ways to divide marital property: either the parties can agree on a property division or the court can order one. In legal terms, “property" doesn't just mean a piece of land – it refers to anything that you own, including furniture, jewelry, cars, cash, investments, and even debts.
The first step in any property division is to determine which property is “marital property" that must be divided between you and your spouse. In general, property that you inherited, received as a gift, or owned before you got married is non-marital property that already belongs to you, it does not get divided as part of the divorce. Property that you acquired during your marriage is marital property.
In South Carolina, marital property is “equitably apportioned" between the husband and wife. This means that the division of property must be fair, but it does not necessarily have to be equal.
If you can't agree on how to divide your property, a judge will assign a value to your marital property. The judge will then divide the property between you and your spouse, taking these factors into consideration:
- The length of the marriage and the parties' ages at the time of marriage and divorce.
- Marital misconduct or fault, if it affected the parties' economic circumstances or contributed to the breakup of the marriage.
- The value of the marital property and the contribution of each spouse to that value.
- Each spouse's income and earning potential.
- Each spouse's physical and emotional health.
- Each spouse's need for additional training or education.
- Each spouse's non-marital property.
- The existence of vested retirement benefits for either spouse.
- Whether separate maintenance or alimony has been awarded.
- The desirability of awarding the family home to the spouse who has custody of the children.
- Tax consequences.
- The existence of support obligations from a prior relationship.
- Liens and debts.
- Child custody arrangements.
- Any other relevant factors.
The LaMantia Law Firm has the experience and understanding to help you resolve the property issues in your divorce. They can prepare a settlement agreement that divides your property and also resolves other issues including child custody, visitation and support and alimony. Call for a free consultation.
A separation agreement, also known as a marital settlement agreement, is a written contract that specifies the duties and obligations of separating or divorcing spouses. Although the phrase “legal separation" is often used in connection with such agreements, under South Carolina divorce law, spouses do not need to sign an agreement before separating. The parties can simply stop living together without any formal declaration or legal agreement. If the spouses plan to divorce, however, a separation agreement is highly advisable.
How Does a Separation Agreement Work?
Much like a premarital (or prenuptial) agreement, a separation agreement requires each spouse to retain his or her own attorney. This is, after all, a legally binding contract. Each spouse must disclose any property he or she owns, together with any other relevant financial information such as income and debts, to the other spouse.
Once signed, the separation agreement should be submitted to a South Carolina family court judge, who will grant final approval. This should be done even if the parties are not yet prepared to seek a divorce or other relief, such as alimony. Judges routinely approve settlement agreements unless there is evidence of fraud, error or coercion.
What Does a Separation Agreement Cover?
In South Carolina, all property acquired during a marriage is considered the “marital property" of both spouses. In the event of divorce without a settlement agreement, the family court will make an equitable division of marital property based on a variety of factors. A settlement agreement therefore allows the spouses to make their own division of marital property without the need for judicial intervention.
In addition to dividing property, a settlement agreement may also cover any maintenance and support and alimony owed by one spouse to the other. The agreement may specify the frequency, term and amount of any spousal support payments. Again, in the absence of an agreement, one spouse may seek a judicial order against the other for support.
If the spouses have minor children, the separation agreement may also cover custody and visitation issues. The parties may agree to continue joint custody of the children or permit one spouse to serve as primary custodian. In reviewing any agreement on this subject, the family court is authorized to act in the “best interests of the children," which may or may not be the same thing as the best interest of the spouses.
Does a Separation Agreement Mean Divorce?
As explained above, a separation agreement does not, by itself, constitute an action for divorce. Under South Carolina law, spouses must live “separate and apart" for at least one year before seeking a “no-fault" divorce. Otherwise, one spouse must sue the other for divorce based on fault such as adultery, desertion or physical cruelty. Whatever the case, the separation agreement may be submitted to a court before any divorce proceeding commences. The parties may still choose to reconcile even after the court approves a separation agreement.