One of the main issues every divorce lawyer in Charleston SC encounters is the division of marital property.
What constitutes marital property?
Marital property is all of the real and personal property, minus a few exceptions, that a couple gains from the date of marriage until the date of filing a Family Court action. The largest of these items of marital property are typically things like a home, retirement assets, and businesses.
What are the exceptions?
When a couple gets married, each person is likely to bring assets they acquired before the marriage into the marriage. One or the other of the parties may receive an inheritance during the marriage. These are common examples of property that may be considered non-marital, meaning a Family Court will not have jurisdiction to divide it up unless a judge finds these items have been “transmuted” into marital property, or that one spouse or the other is entitled to a “special equity” in some piece of property.
What is transmutation?
Transmutation can happen when non-marital property becomes so commingled with marital property that it can no longer be traced to the individual party. It can also happen when both parties are on the title, or the property is used by the parties in a way that establishes the intent of the parties to make it marital property. The intent needed to create transmutation is fact-based and depends on the specific facts of each case. The spouse that wants to transmute non-marital property into marital property must produce evidence showing that both parties viewed the property as marital property. This evidence can include putting the property in both parties’ names, gifting the property to the spouse, and using marital funds to build equity in the property. For more information , see McMillan v. McMillan.
What is special equity?
If the party cannot establish that the non-marital property was transmuted into marital property, the party could still be awarded a special equity in the property by the court. This special equity can be awarded in situations where the non-marital property increased in value as a result of the other spouse’s direct or indirect contributions. A primary example would be where one spouse makes significant repairs or additions to the other spouse’s inherited real estate, usually with his or her own labor and monetary contribution.
If you need the help of a divorce lawyer in Charleston SC in a case related to the division of marital assets, please feel free to contact us to schedule an initial consultation at your convenience.