The South Carolina Court of Appeals has issued two opinions in the last six weeks which analyze what is (and what is not) a proper division of marital assets and debts in divorce. Since virtually every divorce involves the distribution of assets and debts, I believe that it is important to take a closer look at this issue.
The division of marital property is in the family court’s discretion and will not be disturbed absent an abuse of that discretion. South Carolina Code Section 20-7-472 provides fifteen factors for the family court to consider in apportioning marital property, and it is within the family court’s discretion to determine how much weight to give each of these factors. On appeal, even if the appellate court might have weighed specific factors differently, the Family Court’s apportionment will be affirmed so long as it is fair overall. Even if the Family Court commits error in distributing marital property, that error will be deemed harmless if the overall distribution is fair
In these two recent cases, the Court of Appeals noted that while there is certainly no recognized presumption in favor of a fifty-fifty division of the marital estate, an equal division is an appropriate starting point for a Family Court judge attempting to divide an estate of a long-term marriage. However, the equal division of marital assets can, of course, be altered in favor of one spouse depending on the circumstances of each case.
In Doe v. Doe, the Family Court distributed 70 percent of the marital property to husband and only 30 percent to wife. The appellate court noted that the Wife’s adultery caused the breakup of the marriage, and it was therefore appropriate to consider that factor for equitable apportionment. However, our case law is clear that fault does not justify a severe penalty. Accordingly, the Court of Appeals found that the Wife’s adultery alone did not justify a forty percent differential between her portion of the marital estate and Husband’s portion and that such a lopsided division could only be sustainable if our equitable division laws sanctioned the consideration of fault as a permissible punitive factor, which ours do not.
In Avery v. Avery, the Family Court had awarded 62.5 percent of the marital estate to the husband and 37.5 percent to the wife. However, the Court of Appeals could not discern any special circumstances tilting the equitable division scale in favor of one spouse over the other. The Court noted that this was a lengthy marriage wherein the parties agreed to a traditional “breadwinner/homemaker” arrangement. With such an arrangement, both parties made significant, albeit different, contributions to the acquisition, preservation, depreciation, and appreciation in value of their marital property. Neither party was at fault for the separation, nor does either party earn a significant income. When considering those circumstances, the Court of Appeals found that the Family Court abused its discretion by awarding twenty-five percent more of the marital estate to husband, and it remanded the case so that the marital estate could be divided equally between the spouses.
That is not to say that all long term marriages ending in divorce will necessarily have estates that are divided equally. The Court of Appeals reminded us that the Family Court is charged with looking at all fifteen factors of Section 20-7-472 and that it may give one party a larger portion of the estate based on the circumstances of each particular case.
You can read the full text of Doe v. Doe by clicking HERE and the full text of Avery v. Avery by clicking HERE.
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Jen ODonnell