Marital vs. Separate Property in South Carolina Divorce
Table of Contents
Frequently Asked Questions
What is considered separate property in a South Carolina divorce?
Separate property generally includes assets owned before the marriage, inheritances received by one spouse, gifts from third parties, and property excluded by a valid prenuptial or postnuptial agreement. However, separate property can lose its protected status if it becomes commingled with marital assets.
Can separate property become marital property?
Yes. Separate property can become marital property through a process called transmutation. This often occurs when separate assets are mixed with marital funds, used for marital purposes, or placed in both spouses’ names.
Who has the burden of proving property is separate?
The spouse claiming an asset is separate property must prove it with documentation. Bank records, estate documents, deeds, financial statements, and other records may be necessary to establish that an asset should not be included in equitable distribution.
One of the first questions we hear from clients at Warner Law is: “Will I have to split everything?” The short answer is no — but the longer answer depends on how your assets are classified.
In a South Carolina divorce, only marital property is subject to property division in South Carolina. Separate (nonmarital) property generally stays with the spouse who owns it. Understanding the difference between the two is essential to protecting your financial future.
Key Takeaway: Not everything you own is on the table in divorce. Only marital property is divided. Separate property stays with the original owner — unless it’s been commingled.
What Is Marital Property in South Carolina?
Under SC Code § 20-3-630, marital property includes all real and personal property acquired by either spouse during the marriage and prior to the filing of a marital action — regardless of how the property is titled.
That last part is important. Even if only your name is on a bank account, investment portfolio, or vehicle title, it can still be marital property if it was acquired during the marriage.
Common Examples of Marital Property
- The family home purchased during the marriage
- Joint and individual bank accounts funded with earnings from during the marriage
- Retirement contributions made during the marriage (401(k)s, IRAs, pensions)
- Vehicles bought during the marriage
- Business interests started or grown during the marriage
- Furniture, electronics, and household goods acquired during the marriage
- Investment and brokerage accounts funded during the marriage
What Is Separate (Nonmarital) Property?
Separate property is not subject to equitable distribution and stays with the spouse who owns it. Under SC Code § 20-3-630, separate property includes:
- Property owned before the marriage — such as a car or home you had before saying “I do”
- Gifts received by one spouse from a third party (not the other spouse)
- Inheritances received by one spouse — see our guide on inheritance and divorce in South Carolina
- Property excluded by a valid prenuptial or postnuptial agreement
- Property acquired after the divorce filing date (in some circumstances)
Proving Separate Property
The burden of proof falls on the spouse claiming an asset is separate property. You’ll need documentation such as:
- Bank statements showing pre-marriage balances
- Estate documents proving an inheritance
- Gift letters or correspondence
- Financial records showing the asset was kept separate
If you can’t prove it was separate, the court may classify it as marital property.
Transmutation: When Separate Property Becomes Marital
This is where many people get into trouble. Transmutation occurs when separate property is treated as — or mixed with — marital property, causing it to lose its protected status. Under SC Code § 20-3-640, transmutation can happen through:
Commingling
Depositing separate funds into a joint bank account or using separate property to pay for marital expenses can commingle those funds. Once mixed, it becomes very difficult to trace and separate them.
Example: You inherit $100,000 and deposit it into the joint checking account you share with your spouse. Over time, marital funds flow in and out of the same account. That inheritance may now be considered marital property.
Using Separate Property for the Marriage
If you use a premarital asset for the benefit of the marriage — for example, allowing both spouses to live in a home you owned before the marriage and using marital funds for mortgage payments — the property may be partially or fully transmuted.
Titling in Joint Names
Placing separate property in both spouses’ names (such as adding your spouse to the deed of a premarital home) can be evidence of transmutation.
Pro Tip: If you want to keep separate property protected, keep it in a separate account in your name only, and never use marital funds to maintain or improve it.
How Property Classification Affects Your Divorce
The classification of every asset matters because it directly impacts what’s subject to equitable distribution. Here’s why:
- Marital property → divided by the court based on the 15 equitable distribution factors under SC Code § 20-3-620
- Separate property → stays with the original owner and is not part of the division
For high-value assets like homes, the classification can mean the difference between keeping a property entirely or sharing hundreds of thousands of dollars in equity with your spouse. If you’re concerned about the family home, read our guide on who gets the house in a SC divorce.
Common Gray Areas in Property Classification
In practice, classification isn’t always straightforward. Some of the most contested property division disputes involve assets that have both marital and separate components:
- A home owned before marriage where marital funds paid the mortgage → the premarital equity may be separate, but the equity gained during the marriage is likely marital
- A retirement account started before marriage → pre-marriage contributions and growth are separate, but contributions during the marriage are marital
- A business started before marriage that grew significantly during the marriage → the pre-marriage value may be separate, but the active appreciation is often marital
- An inheritance that was partially commingled → tracing may be needed to identify what remains separate
These gray areas are precisely why working with an experienced attorney is so important. The outcome depends on the specific facts, documentation, and how effectively your legal team presents the case.
Steps to Protect Your Separate Property
If you have assets you believe are separate property, take these precautions:
- Maintain separate accounts — Keep premarital and inherited assets in accounts under your name only
- Never commingle — Don’t deposit separate funds into joint accounts
- Keep records — Preserve bank statements, inheritance documents, and gift letters that prove the source
- Avoid improving separate property with marital funds — If you must, document the source of every dollar
- Consult a family law attorney early — Don’t wait until divorce is imminent to think about classification
Protect Your Property — Talk to Warner Law
Understanding the difference between marital and separate property is the foundation of a smart divorce strategy. At Warner Law, attorney Carrie Warner helps clients in Columbia, South Carolina identify, classify, and protect their assets throughout the divorce process.
Whether you’re worried about losing property you brought into the marriage or you need help tracing commingled assets, we’re here to help.
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.