In making an equitable distribution of marital property, the Family Court must:
- Identify the marital property, both real and personal, to be divided between the parties;
- Determine the fair market value of the identified property;
- Apportion the marital estate according to the contributions, both direct and indirect, of each party to the acquisition of the property during the marriage, their respective assets and incomes, and any special equities they may have in marital assets; and
- Provide for an equitable division of the marital estate, including the manner in which the distribution is to take place.
Johnson v. Johnson, 296 S.C. 289 (Ct. App. 1988).
In general, marital property subject to equitable distribution is valued as of the date the marital litigation is filed or commenced. Fields v. Fields, 342 S.C. 182 (Ct. App. 2001). However, the parties may be entitled to share in any appreciation or depreciation in marital assets occurring after separation but before divorce. See Dixon v. Dixon, 334 S.C. 222 (Ct. App. 1999) (stating that because our Family Courts handle a large number of cases, there often is a substantial delay between the commencement of an action and its ultimate resolution. Thus, it is not unusual for the value of marital assets to change between the time the action was commenced and its final resolution.)
In the recent case, Gardner v. Gardner, Mr. Gardner argued that the Family Court erred in the valuation of several marital assets, specifically his retirement account. While this case was pending, he died. As a result of his death, the retirement account ceased to exist, and other assets awarded to both Mr. and Mrs. Gardner also declined in value during the litigation. The Court noted that Mr. Gardner failed to offer any evidence of appropriate values for the marital property at the Family Court (trial) level and did not offer any suggestion of their value in his appellate brief.
As a result, the Supreme Court held that the date of the filing of the litigation should be used as the date of valuation for purposes of equitably dividing the marital estate. In addition, the Court held that a court reviewing a property distribution must look at the appreciation or depreciation of marital assets with regard to the entire martial estate and not the assets individually.