Introduction
When it comes to the dissolution of a marriage, one of the most sensitive and complex issues to navigate is the division of marital property. In South Carolina, all assets acquired during the marriage are considered marital property, subject to equitable distribution. However, many couples often wonder about the significance of having their name on the title and/or the mortgage on the marital residence.
Understanding Marital Property in South Carolina
South Carolina follows the legal concept of equitable distribution, meaning that marital property is divided fairly, but not necessarily equally, between divorcing spouses. Marital property encompasses all assets acquired during the marriage, regardless of whose name is on the title, unless it is considered separate or non-marital property. The marital residence is typically a primary concern, as it is often one of the most valuable assets to divide.
Deeds and Title Ownership
Whether the deed and/or mortgage are in one spouse’s name or both, it does not affect the property’s classification as marital or separate. What matters most is when and how the property was acquired.
Marital versus Separate Property
Property obtained by either spouse before the marriage, or through gift or inheritance, or after date of filing of an action for separate maintenance and support or for divorce is usually considered separate property. However, if the value of separate property increases during the marriage due to active efforts from both spouses, some of the equity in the home may be subject to equitable distribution.
Equitable Distribution Factors
When determining property distribution, South Carolina family courts consider various factors to ensure a fair outcome. These factors include:
- Length of the marriage
- The age and health of both spouses
- The income and earning potential of each spouse
- Each spouse’s contribution to marital assets
- Non-monetary contributions, such as child-rearing and homemaking
- Marital misconduct or fault (if applicable)
- Current and future needs of each spouse
Seeking Legal Advice
Given the complexity of property division and the intricacy of South Carolina’s laws, it is advisable to consult a knowledgeable family law attorney. An experienced attorney can guide you through the process, ensuring your rights are protected and advocating for a fair distribution of assets.
Conclusion
Determining the ownership rights to a marital residence in South Carolina is not solely based on whose name appears on the title or mortgage. Instead, a multitude of factors influence the classification of property as marital or separate, and ultimately, the equitable distribution during a divorce. Seeking legal advice from a trusted family law firm can help you navigate through the intricacies of the law, ensuring a fair and just outcome during this challenging time in your life. Remember, every case is unique, and having an experienced attorney by your side can make all the difference. Call us at Sarji Law Firm to discuss your options.
FAQs
In New Jersey, any asset or debt acquired during the marriage is considered marital property, regardless of whose name it's in. Conversely, separate property, like assets owned before the marriage or received as gifts or inheritances, is typically not subject to division unless it's commingled with marital property.
Should your spouse be on the title? ›
Having both spouses on the title means you both legally own the home. This can provide a sense of security and ownership for both partners.
What is the importance of marital status on a deed? ›
The consequences of misrepresenting marital status in a real estate transaction go beyond delays and complications. It can also impact the rights and obligations of the parties involved. For example, if a buyer claims to be single but is actually married, their spouse may have legal rights to the property.
What are my rights if my name is not on a deed but married in NJ? ›
If My Name is Not on the Deed of a Marital Home, Am I an Owner? In New Jersey, property acquired during the marriage is generally considered marital property, regardless of whose name is on the deed. This means that even if your name isn't on the deed, you may still have rights to the property in a divorce.
Is a house owned before marriage marital property in New Jersey? ›
It is an especially common question of those who have married later in life, and who may have achieved significant assets before entering into a marriage. The general rule in New Jersey is that premarital assets are not subject to equitable distribution.
Does it matter whose name is on the house? ›
Deeds and Title Ownership
Whether the deed and/or mortgage are in one spouse's name or both, it does not affect the property's classification as marital or separate. What matters most is when and how the property was acquired.
Should the wife's name be on the house deed? ›
While there are some good reasons to add your new spouse to your Deed, there's also a reason why you shouldn't. Ultimately, there is no right answer. When you put your spouse on the Deed to a property that you owned individually prior to marriage, you are creating what's called a tenancy by the entireties.
Which type of deed is used most often in divorce? ›
Most divorce professionals request a Quit Claim Deed when transferring property for a divorce sale. A basic understanding of the various real estate deeds, i.e., Quitclaim deed vs. Warranty deed, is a must when transferring title and ownership to real estate during a divorce.
What is the best deed for a married couple? ›
The most recognized form for a married couple is to own their home as Tenants by the Entirety. A tenancy by the entirety is ownership in real estate under the fictional assumption that a husband and wife are considered one person for legal purposes. This method of ownership conveys the property to them as one person.
Why does marital status matter? ›
Your marital status creates specific financial, healthcare, tax, and other shared opportunities and obligations. Here are some of the important ways a change in your marital status can affect your life (and the lives of your family members).
If he did not have a will, state statutes, known as intestacy laws, would provide who has priority to inherit the assets. In our example, if the husband had a will then the house would pass to whomever is to receive his assets pursuant to that will. That may very well be his wife, even if her name is not on the title.
What happens if your wife is not on a mortgage? ›
If your spouse is not on the mortgage, they are not responsible for paying it. However, the mortgage lender can foreclose on the house if the mortgage is not paid.
How is the house split in a divorce? ›
When you get divorced, you have three main options for how to handle the house you owned together. You can sell the home and divide the proceeds. One of you can keep the house and buy out the other. Or you both can own the property together temporarily.
Are separate bank accounts marital property in NJ? ›
In New Jersey, marital property encompasses assets acquired during the marriage. This includes income, investments, and even seemingly personal items like bank accounts.
Who gets the house in a divorce in New Jersey? ›
In many cases, the financially dependent spouse will get to keep the home, however, this is not always the case. Additionally, if the financially independent spouse primarily contributed to the home monetarily, though the other spouse raised the kids and took care of the home, courts will also consider this.
Does my spouse have any right to my house if I owned it before marriage in Kansas? ›
In Kansas, a married couple's assets and debts are subject to an equitable distribution upon divorce, which means the couple's assets and debts will be divided fairly but not always equally. Property you acquire before marriage is not divided with your spouse except to the extent you convert it into marital property.
Does it matter whose name is on the car? ›
Yes, the name on a car title can impact insurance coverage. Insurance companies usually require the policyholder to have an insurable interest in the vehicle, meaning they either own the car or have a significant financial interest in it.
What if my wife is not on the deed? ›
In Community Property States
In a community property state — let's say California — your ownership rights are automatic for a house acquired during your marriage. Your home is equally shared between you, fifty-fifty — no matter how it's titled. You can change this only by giving up your rights in the home.
Should husband or wife name be listed first? ›
Addressing a Couple
NOTE: Traditionally, a woman's name preceded a man's on an envelope address, and his first and surname were not separated (Jane and John Kelly). Nowadays, the order of the names—whether his name or hers comes first—does not matter and either way is acceptable.
Can only one spouse be on title? ›
No law says both spouses need to be listed on a mortgage. If your spouse isn't a co-borrower on your mortgage application, then your lender generally won't include their details when qualifying you for a loan. Depending on your spouse's situation, this could be a good thing or a bad thing.
