Legal title makes little difference in the division of real estate or personal property that the parties acquired during their marriage.

See Chapter 15, Equitable Apportionment, page 37.

Direct contributions, such as salary and earnings, are relatively easy to prove. This information is generally available from income tax returns. Also you may go to the Social Security website or physical office and get your entire record of Social Security Earnings for your entire life. This record may be very useful. It is poetic justice that persons who cheat on their income tax returns often have a difficult time proving their direct contributions.

Indirect contributions, such as services as a homemaker, are more difficult to prove. Anything that you did during the marriage to improve the financial health of the family unit may be relevant. The services of a wife in maintaining the home, rearing children, preparing meals, and furthering the husband's career are traditional examples. Lawyers and judges often overlook indirect contributions by the primary breadwinner.

Section 20-7-472 Code of Laws of South Carolina 1976, provides that “In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors:

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;

(2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of (a) entry of a pendente lite order in a divorce or separate maintenance action; (b) formal signing of a written property or marital settlement agreement; or (c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

(3) the value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;

(4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;

(5) the health, both physical and emotional, of each spouse;

(6) the need of each spouse or either spouse for additional training or education in order to achieve that spouses's income potential;

(7) the non-marital property of each spouse;

(8) the existence or nonexistence of vested retirement benefits for each or either spouse;

(9) whether separate maintenance or alimony has been awarded;

(10) the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;

(11) the tax consequences to each or either party as a result of any particular form of equitable apportionment;

(12) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;

(13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;

(14) child custody arrangements and obligations at the time of the entry of the order; and

(15) such other relevant factors as the trial court shall expressly enumerate in its order.



Many judges start with the assumption that there should be an equal division of the property and that the person who wants more than fifty percent of the property has the burden of proving his or her entitlement. Recent South Carolina cases suggest that an equal or fifty-fifty is the norm. Many domestic relations lawyers believe that a spouse will receive forty percent of the marital estate “just for showing up.”