Property Division & Settlement Agreements

Left to their own devices, people sometimes have a funny way of dividing property and coming up with settlement agreements following the close of a marital relationship.  I recall one gentleman who must have walked through his home with his wife pointing out and labeling their things, so detail-oriented as to delineate in their list exactly who was going to get the coffee table, who was going to get the can opener, and who was going to get which lamp — but when I asked him who would be responsible for day care expenses for their young child, he merely blinked and said, “well, we didn’t think about that.”

That’s my job.  To think about stuff that might not immediately come to mind.  Not only obvious stuff like dealing with the cars in your driveway or determining who gets what part of the Christmas holiday break from school with the children, but also not-so-obvious stuff, such as who gets to celebrate Halloween with the kids, or how much of a retirement account is actually marital and subject to equitable distribution.

When it comes to the distribution of property incidental to a divorce, most cases will follow a four-step process.

  1. Determine what property is to be divided
  2. Determine the value of the property
  3. Determine what portion each spouse is entitled
  4. Determine how property should actually be divided

property division, lawyer, attorney, property settlement, charleston, summerville, scHow do I determine what property is to be divided?  In order to determine what property is to be divided, it must be first determined what property is marital property and what property is non-marital property.

Marital property is defined as:

  • All real and personal property acquired by parties during marriage, and which is owned of the date of filing or commencement of marital litigation, regardless of how legal title is held.
  • Enhancement/appreciation of marital assets due to efforts of either spouse during marriage.
  • Gifts between spouses during marriage.
  • All vested and non-vested benefits/funds accrued during marriage.
  • Real property held by parties as joint tenants with right of survivorship, whether acquired before or during marriage.

Non-marital property is defined as:

  • Property acquired by inheritance, devise, bequest or gift from someone other than the spouse.
  • Property acquired by either party before the marriage and property acquired after the happening of the earliest of either: (a) a temporary order in divorce/separate maintenance action; (b) formal signing of written property or marital settlement agreement; or (c) the entry of permanent order of separate maintenance or of an order approving property/marital settlement agreement.
  • Property acquired by either party in exchange for property in 1 and 2.
  • Property excluded by written contract.
  • Any increase in value of non-marital property, except to the extent that increase in value happened because of effort from other spouse.

If there has already been an action for Separate Support and Maintenance, and property has already been divided pursuant to a Final Order, then that property is considered non-marital property insofar as the divorce is concerned.

What makes a good settlement agreement? When it comes to bringing your marital litigation to fruition, in general terms it is going to happen in one of two ways: either you’re going to trial, or you’re going to settle.  Trials are expensive and contentious, and the outcome may very well be unpredictable. Coming to an agreement and going in front of a judge so that the agreement may be ratified by the court allows for a little bit more creativity, allowing both parties to walk away with a result that benefits all.

A good settlement agreement will be detailed enough that it will anticipate and attempt to provide a predictable way to avoid any possible points of contention without being either (a) so detailed that, on any given day, someone will be in violation of the agreement or (b) so vague that the agreement provides very little guidance at all.

No matter how your particular case ends, whether it be by trial or through a proper settlement agreement, I am here to address your needs, to advocate fiercely for your best interests, and to ensure that every step of the way you have been treated exactly as I would hope to be treated during such a process.

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