Equitable Distribution in South Carolina: A Guide to Marital Property
By Jessica Means, Hall & Means, LLC
Equitable distribution in South Carolina means the Family Court divides marital property in a way it considers fair—not necessarily in half. SC Code § 20-3-620 governs this process and lists 15 factors the judge weighs when no agreement is reached. Understanding which property is subject to division, which is not, and how the court applies those 15 factors gives clients in Charleston a realistic picture of what they are actually entitled to before they ever enter settlement negotiations.
South Carolina Is an Equitable Distribution State, Not a Community Property State
Nine states (including California and Texas) use community property rules, which generally split marital assets 50/50 as a default. South Carolina is not one of them. Here, the court starts with no presumed split—it weighs circumstances and arrives at what it considers equitable for both parties. In many cases, equitable is close to 50/50. In others, particularly long marriages, marriages with a non-working spouse, or marriages where one spouse dissipated assets, the split can deviate meaningfully from equal.
What Is Marital Property in South Carolina?
Under SC Code § 20-3-630, the marital estate includes all real and personal property — and the marital debts — acquired by either spouse during the marriage, regardless of whose name it is in. The court divides marital debt (such as mortgages, loans, and credit-card balances incurred during the marriage) under the same factors it uses to divide assets. The marital assets subject to division include:
- The marital home and any other real property purchased during the marriage
- Bank accounts, brokerage accounts, and savings funded during the marriage
- Retirement account contributions made during the marriage (401(k), 403(b), IRA, pension)
- Vehicles purchased during the marriage
- Business interests started or grown during the marriage
- Stock options and restricted stock units that vested during the marriage
- Income earned by either spouse during the marriage
The key principle: whose name is on the title does not determine whether an asset is marital property. A house deeded solely to one spouse is still marital property if purchased with marital funds during the marriage. A retirement account in only one spouse’s name contains marital property to the extent it was funded during the marriage.
What Is Separate Property? (Excluded from Equitable Distribution)
SC Code § 20-3-630 excludes the following from equitable distribution:
- Pre-marital property — assets owned before the wedding date that have been kept separate
- Gifts from third parties — a gift from a parent or friend made to one spouse specifically (not to the couple)
- Inheritances — property received by one spouse through a will or intestate succession, even if received during the marriage
- Property excluded by a valid prenuptial or postnuptial agreement
- Personal injury damages — compensation for pain and suffering from a personal injury claim (not lost wages, which may be marital)
How Does Separate Property Become Marital Property? Transmutation
Separate property can lose its protected status through a process courts call transmutation—when separate property is treated as marital through commingling or conduct. Common examples:
- Depositing an inheritance into a joint checking account and using it for household expenses
- Using pre-marital savings as the down payment on a jointly titled marital home
- Adding a spouse’s name to the title of a pre-marital asset
- Paying the mortgage on a pre-marital property from joint marital income for years
The appreciated value of separate property during the marriage can also create a marital component—particularly when marital funds or marital labor contributed to the increase in value (a business started before marriage that grew substantially with both spouses’ effort, for example). Tracing is the legal tool used to separate the pre-marital separate component from the during-marriage marital component, and it often requires financial experts.
The 15 Equitable Distribution Factors Under § 20-3-620(B)
When the parties cannot agree, the Family Court judge applies these factors to reach an equitable split:
- Duration of the marriage — longer marriages generally result in more equal splits; shorter marriages may favor the spouse who contributed more to the assets acquired
- Marital misconduct or fault — relevant to the extent it affected economic circumstances (a spouse who spent marital funds on an affair may be charged with dissipating marital assets)
- Value of marital property and each spouse’s contribution to acquiring, preserving, depreciating, or appreciating it—including homemaking and child-rearing as contributions
- Income of each spouse — present earnings and future earning capacity
- Physical and emotional health of each spouse
- Need for training or education — a spouse who left the workforce to raise children and now needs retraining to re-enter the workforce
- Nonmarital property of each spouse — the court considers what separate assets each party is already bringing out of the marriage
- Retirement benefits — the existence or absence of vested retirement benefits for each spouse
- Whether alimony has been awarded
- Existence and extent of support obligations arising from a prior marriage
- Liens and other encumbrances on the property, and any other existing marital debts
- Tax consequences of the proposed distribution
- Desirability of awarding the family home, or the right to live in it for reasonable periods, to the spouse with custody of the children
- Child custody arrangements and obligations at the time of the order
- Any other relevant factor
For a parent with primary custody of minor children, factors 3 (homemaking as a contribution), 4 (lower income from time out of the workforce), 6 (retraining needs), 13 (the desirability of awarding the family home), and 14 (child custody arrangements) can weigh in favor of awarding the custodial parent a larger share of the marital estate, or the right to remain in the marital home. South Carolina judges have broad discretion, however, and outcomes vary considerably from case to case — no particular division is guaranteed.
The Family Home: Keeping It or Selling It
The marital home is often the largest single asset. In practice, there are really two outcomes:
- One spouse buys out the other. The custodial parent buys out the non-custodial parent’s equity using marital funds, a refinance, or an offset against other assets (for example, the custodial parent keeps the house; the other parent keeps the retirement account). The home must be refinanced into one spouse’s name only—a divorce decree alone does not remove a name from a mortgage.
- The home is sold and proceeds split. Most practical when neither party can afford the mortgage alone or when there is no compelling reason to maintain the home.
A deferred sale — where the custodial parent stays in the home for years before it is eventually sold — is theoretically possible but rare in practice. South Carolina courts strongly favor dividing marital property promptly, so realistically the choice is between a buyout and a sale: if the spouse who wants to keep the home cannot refinance it into their own name, it generally has to be sold.
If you want to keep the home, confirm before the hearing that you can qualify for a refinance in your name only at the current interest rate—your attorney will need to know this to negotiate effectively.
Dividing Retirement Accounts: QDROs and Related Orders
Dividing a 401(k), pension, or other retirement plan requires a separate court order — a legal instrument that directs the plan to pay a designated portion to the other spouse. The most common is a Qualified Domestic Relations Order (QDRO), used for most private-employer plans, but it is not the only one: military and many government or utility retirement systems are divided through other instruments (for example, a Military Pension Division Order, or another domestic relations order suited to that plan). The right instrument depends on the type of plan. Key points:
- IRAs do not require a QDRO but do require a divorce decree or separation agreement specifying the division before a transfer can be made tax-free
- Government pensions (federal, state, military) have their own procedures and separate orders
- The QDRO should be prepared by your attorney simultaneously with the divorce decree—delay creates risk; if the plan participant dies or changes beneficiaries before the QDRO is entered, the non-employee spouse may lose all rights
- Receiving funds via a QDRO before retirement age can be done as a direct rollover to your own IRA, avoiding early withdrawal penalties
Frequently Asked Questions
Is South Carolina a 50/50 divorce state?
No. South Carolina uses equitable distribution under § 20-3-620, which means the court divides marital property fairly, not necessarily equally. Many divorces result in a roughly even split, but courts regularly deviate from 50/50 based on the 15 statutory factors—particularly in long marriages, when one spouse sacrificed career advancement for child-rearing, or when one spouse dissipated marital assets.
Does it matter that the house is only in my spouse’s name?
No. If the home was purchased with marital funds during the marriage, it is marital property regardless of whose name is on the deed. Title determines who the legal owner is for third-party purposes; it does not determine marital property status in a South Carolina divorce proceeding.
Can my spouse keep me from getting any of the retirement account they built during the marriage?
No. The portion of any retirement account contributed during the marriage is marital property. Your spouse cannot simply refuse to divide it. The court will order division; the appropriate order — a QDRO or its equivalent for that type of plan — implements the division through the plan administrator without the other spouse’s ongoing cooperation required.
Does my spouse’s affair affect property division?
Marital misconduct (including adultery) is one of the 15 equitable distribution factors, but courts do not use it to impose large financial penalties. The more significant impact of adultery in South Carolina is on alimony: an adulterous spouse is barred from receiving alimony under SC Code § 20-3-130(A). Property division may shift modestly if marital funds were spent on the affair (a dissipation argument), but a judge is unlikely to dramatically skew an otherwise fair property split solely because of an affair.
For more on what the divorce process looks like once you are ready to act, see our guide on how to file for divorce in Charleston. To understand what alimony options are available, see our guide on alimony in South Carolina.
Hall & Means, LLC represents clients throughout the Tri-County Lowcountry — Charleston, Berkeley, and Dorchester counties, served by the 9th and 1st Judicial Circuits — and on a case-by-case basis in surrounding counties. The legal framework discussed here applies statewide in South Carolina.
About the Author
Jessica Means is a founding attorney at Hall & Means, LLC and a leading family law advocate in Charleston. Selected to the South Carolina Super Lawyers Rising Stars list, she represents clients in divorce, custody, and family law matters — with a particular focus on complex financial cases, business asset distribution, and high-asset divorce. Jessica has served as a Guardian ad Litem since law school, giving her depth in cases involving children that complements her work as a litigator.