You’ve made the decision to divorce.
Does this mean everything must be split between you and your spouse – even gifts or inheritances that were given specifically to you?
The answer depends on the circumstances of the gifts.
In South Carolina, there are several laws to guide how gifted property is handled in a divorce.
South Carolina Classified Property as Either Marital or Non-Marital
In South Carolina, the distinction between marital and non-marital property is crucial.
Non-marital property includes anything acquired before the marriage started. This type of property does not have to be divided in a divorce.
Generally, any property acquired during the marriage is classified as marital property, though there are exceptions.
Some Gifts Can Be Considered Non-Marital Property
When it comes to gifts, the classification of whether it is marital property or not depends on several factors.
- Gifts or inheritances received from someone other than the spouse, and that were directed to a single spouse, can be considered non-marital property.
- Gifts exchanged between spouses are considered marital property. This holds true even if the gift is indirect, such as being given through a third party. These gifts are subject to division during a divorce.
- Gifts given to both spouses are treated as shared marital property.
Individual Gifts Can Become Marital Property
An inheritance or gift given specifically to one spouse starts off as non-marital property, but this can change quickly.
It’s possible that the actions you take with a gift can cause it to transform into marital property. Some of these actions include:
- If the gifted property or its income was used for the common benefit of both parties during the marriage, it could become marital property.
- If a cash gift intended for one spouse ends up in a joint bank account, it transforms into marital property.
- If a car or property gifted to one spouse is later titled to both, it becomes marital property.
- If both parties pay for upkeep of the property, it becomes marital property.
There Are Steps You Can Take to Keep Your Gifts as Non-Marital Property
To keep gifts classified correctly, documentation is key. A note or a letter indicating the gift was solely for one spouse is usually sufficient.
Beyond that, you must also make effort to avoid commingling by keeping monetary gifts in separate accounts.
You must also find ways to maintain the property without using marital funds.
What About Family Heirlooms?
Family heirlooms hold sentimental value. If you gifted one to your spouse and want to ensure their return in case of divorce, it’s important to plan ahead. A prenuptial or postnuptial agreement can specify such arrangements.
How Are Engagement Rings Classified?
In South Carolina, engagement rings generally remain with the recipient. They are viewed as separate property because they were given before marriage. However, if the ring was purchased or upgraded during the marriage with joint funds, it then becomes marital property.
Below is a summary of what gifts are considered marital property:
| Type of Property | Marital Property |
|---|---|
| Gifts from Third Parties | No (unless commingled) |
| Interspousal Gifts | Yes |
| Gifts to Both Spouses | Yes |
| Inherited Property | No (unless commingled) |
| Engagement Ring Given Pre-Marriage | No |
| Engagement Ring Purchased with Joint Funds | Yes |
Divorce Mediation Gives Spouses More Flexibility
In a traditional divorce, a family court judge uses the legal guidelines discussed above to determine how property is split between the divorcing spouses.
However, if you chose to get divorced through mediation, you and your spouse get to retain control over how things are split. In mediation, you even have the ability to trade non-marital property for marital property. This can be an effective way to reach a settlement where both spouses can get what is important to them. It’s all about finding a balance that works for both parties.
Call our local Charleston divorce mediation lawyers today to discuss how mediation can help you get divorced affordably and fairly.
About Catherine Marra
Catherine Marra is a nationally certified Divorce Mediator with over 30 years of experience in Family Law, including 20 years in private practice and 10 years as a Family Court Magistrate. She uses her knowledge and experience to guide couples in negotiating divorce settlements so they can save money, complete the divorce process quicker, and get better outcomes than they would at trial.