Who Gets The House In A South Carolina Divorce?
Table of Contents
Frequently Asked Questions
What happens to the mortgage after divorce in South Carolina?
The divorce decree does not change your mortgage obligation. If both spouses are on the mortgage, both remain liable to the lender until the loan is refinanced, paid off, or the home is sold. In many cases, the spouse keeping the home must refinance the mortgage into their sole name.
Does the custodial parent automatically get the house in a South Carolina divorce?
No. Child custody is an important factor, but there is no automatic rule that the custodial parent receives the family home. Courts consider the children’s needs, the home’s equity, each spouse’s finances, and the overall property division before determining who keeps the house.
Can I be forced to sell my house in a South Carolina divorce?
Yes. If neither spouse can afford to keep the home or buy out the other spouse’s equity interest, the court may order the property sold and the proceeds divided according to the equitable distribution award.
For most families in Columbia, SC and across the Midlands, the family home is the single largest asset — and the most emotionally charged one. When facing divorce, the question “Who gets the house?” is often the first thing on everyone’s mind.
The answer isn’t simple. South Carolina courts don’t automatically award the home to either spouse. Instead, the family home is treated as part of property division in South Carolina, and the court considers multiple factors to reach a fair outcome.
Key Takeaway: There’s no automatic rule about who gets the house. The outcome depends on factors like child custody, finances, equity, and the overall property division.
Is the Family Home Marital Property?
The first question is whether your home is marital property or separate property. If the home was purchased during the marriage — even if only one spouse’s name is on the deed — it’s almost always marital property subject to equitable distribution.
If one spouse owned the home before the marriage, it may be separate property. However, if marital funds were used to pay the mortgage, make improvements, or pay property taxes during the marriage, the other spouse may have a claim to the increase in equity that occurred during the marriage.
How Courts Decide Who Gets the House
Under SC Code § 20-3-620, the court considers all 15 equitable distribution factors. When it comes to the house specifically, the most influential factors tend to be:
1. Child Custody Arrangements
Courts prioritize the stability of minor children. If you’re the primary custodial parent, you may have a stronger claim to remain in the family home — at least until the children finish school or reach a certain age.
2. Financial Ability to Maintain the Home
Keeping the house means paying the mortgage, property taxes, insurance, maintenance, and utilities. The court evaluates whether the spouse who wants the home can realistically afford it on their own.
3. Equity and the Overall Property Split
If one spouse keeps the house, the other typically receives other assets of equivalent value to balance the division. For example, if the home has $200,000 in equity, the other spouse might receive a larger share of retirement accounts or other investments.
4. Each Spouse’s Separate Property and Income
A spouse with substantial separate property or higher income may be in a better position to maintain the home — or may need it less.
Your Options for the Marital Home
When dividing the family home in a South Carolina divorce, there are typically three paths:
Option 1: One Spouse Buys Out the Other
The most common solution. One spouse keeps the house and compensates the other for their share of the equity. This usually requires:
- A professional home appraisal to determine fair market value
- Refinancing the mortgage into the keeping spouse’s name only
- Transferring the deed via a quitclaim deed
Option 2: Sell the Home and Split the Proceeds
If neither spouse can afford the home alone — or neither wants it — selling is often the cleanest option. The net proceeds (after paying off the mortgage, closing costs, and any liens) are divided according to the equitable distribution agreement or court order.
Option 3: Deferred Sale (Nesting or Bird’s Nest Arrangement)
In some cases — especially when young children are involved — the court may allow one spouse to remain in the home temporarily. The house is sold later (for example, when the youngest child turns 18), and proceeds are divided at that time.
This option provides stability for the children but requires clear terms about who pays for maintenance, the mortgage, and what happens if the housing market changes.
The Mortgage Problem
Here’s something many people don’t realize: your divorce decree does not change your mortgage.
If both your names are on the mortgage, you are both still liable to the lender — regardless of what the divorce agreement says. If your ex-spouse is awarded the home and stops making payments, the lender can still come after you.
The solution is refinancing. The spouse keeping the home should refinance the mortgage into their name only. This:
- Removes the other spouse from the loan
- Establishes new terms based on the keeping spouse’s credit and income
- May provide cash for the equity buyout
If the keeping spouse can’t qualify for refinancing, this may affect whether they can actually keep the house. For more on how mortgage obligations are handled, see our guide on how debt is divided in divorce.
Tax Considerations
Selling or transferring a home in divorce has tax implications you should understand:
- Capital gains exclusion — If you’ve lived in the home for 2 of the last 5 years, you may exclude up to $250,000 (single) or $500,000 (married filing jointly) of capital gains from taxes
- Property tax reassessment — Transferring the home to one spouse may trigger a reassessment in some circumstances
- Mortgage interest deduction — Only the spouse paying the mortgage and on the deed can claim this deduction
Timing the sale or transfer can save you thousands in taxes. Discuss the tax implications with your attorney and a tax professional.
Let Warner Law Protect Your Home and Your Future
The family home is more than an asset — it’s where your memories live. At Warner Law, attorney Carrie Warner understands how much is at stake and works diligently to protect our clients’ interests in Columbia, South Carolina and throughout the Midlands.
Whether you want to keep your home or ensure you receive your fair share of equity, we can help.
Schedule a consultation with Warner Law today to discuss your options.
This article is for informational purposes only and does not constitute legal advice. Every family law case is unique. Contact Warner Law to discuss your specific situation.
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My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.