equitable distribution Flashcards
What presumption should an appellate court have regarding equitable division awards?
An appellate court should approach an equitable division award with a presumption that the family court acted within its broad discretion.
What is the family court’s discretion regarding the division of marital property?
The division of marital property is within a family court’s discretion and will not be disturbed on appeal absent an abuse of that discretion.
What does an appellate court consider when reviewing the apportionment of marital property?
An appellate court looks to the overall fairness of the apportionment.
Is it relevant if the appellate court would have arrived at a different apportionment?
If the end result is equitable, the fact that the appellate court would have arrived at a different apportionment is irrelevant.
What is marital property?
Marital property includes all real and personal property acquired during a marriage and owned as of the date of filing or commencement of marital litigation.
S.C. Code Ann. § 20-3-630(A) (Supp. 2009)
What is the doctrine of equitable distribution?
The doctrine of equitable distribution recognizes marriage as an economic partnership and aims to divide property acquired during the marriage fairly.
How should property be divided upon dissolution of marriage?
Property should be divided in a manner that fairly reflects each spouse’s contribution to its acquisition, regardless of legal title.
What is the ultimate goal of apportionment in marital property?
The ultimate goal is to divide the marital estate in a way that reflects each spouse’s contribution to the economic partnership and the effect of ending that partnership.
what are the equitable distribution factors that the court MUST give weight to. 16
- Duration of marriage and age at time of marriage and time of divorce;
- Martial misconduct or fault either or both parties, if impacted $ or contributed to breakdown of relationship
- value of the martial property and contribution each spouse put towards appreciation/depreciation; includes contribution as homemaker
- income/earning potential/opportunity for future acquisition of capital assets for each spouse
- health (physical/mental) of each spouse
- spouse need for additional training or edu to reach spouse income potential
- non-marital property of each spouse
- existence/nonexistence of vested retirement benefits
9.whether separate maintiance or alimony has been awarded
- desirability of awarding the fam home as part of distribution or right to live there for reasonable time to the spouse that got the kids
- tax consequences
- existence/extent of prior support obligations
- leins/other encumbrances on the marital property/any other debts
- chikd support obligations
16 any other facotrs
What burden does the spouse claiming an equitable interest in property have upon dissolution of marriage?
The burden of proving the property is part of the marital estate.
What does the spouse establish if she carries the burden of proof regarding the property?
She establishes a prima facie case that the property is marital property.
What must the opposing spouse do if he wishes to claim the property is not part of the marital estate?
He has the burden of presenting evidence to establish its nonmarital character.
What must a spouse claiming nonmarital property has been trasnmuted to marital property must show
The spouse must produce objective evidence showing the parties regarded the property as common property of the marriage during the marriage.
What are examples of evidence of transmutation?
Examples include jointly titling the property, using the property exclusively for marital purposes, commingling the property with marital property, or using marital funds to build equity in the property.
Is the mere use of separate property sufficient to establish transmutation?
No, the mere use of separate property to support the marriage is not sufficient without additional evidence of intent to treat it as property of the marriage.
What determines whether separate property has been transmuted into marital property?
It is a matter of intent to be gleaned from the facts of each case.
What happens to inherited nonmarital property when it is transmuted into marital property?
It does not extinguish the inheritor’s right for special consideration upon divorce.
How should an inheritance be treated in the context of marital property?
As a contribution by the inheriting party to the acquisition of marital property.
What should be taken into account when determining the percentage of the marital estate for the inheriting party?
The contribution of the inheritance should be taken into account.
What should be considered in determining the inheriting party’s entitlement?
The contribution of inherited property that is later transmuted should be taken into account.
What is the purpose of considering the contribution of inherited property?
It helps determine the percentage of the marital estate to which the inheriting party is equitably entitled upon distribution.
what must a court do in making an equitable distribution determination (4 things)
(1) identify the marital
property, both real and personal
(2) determine the fair market value of the property so identified (valued as of the date of martial litigation filed)
(3) identify the proportionate contributions, both direct and indirect, of each party to aquiring the martial property, and
(4) provide for an equitable division of the marital estate,
even if property begins as nonmartial, when can non marital property be considered transmuted into marital property during the marriage
(1) if it becomes so commingled with marital property as to be
untraceable;
(2) if it is titled jointly; or
(3) if it is utilized by the parties in support of the marriage or in some other manner so as to evidence an intent by the parties to make it marital property
What is nonmarital property?
Property acquired by either party before the marriage is nonmarital property.
S.C. Code Ann. § 20-7-473(2).
What type of property acquired during marriage is considered nonmarital?
Property acquired during the marriage in exchange for property acquired before the marriage is also nonmarital property.
S.C. Code Ann. § 20-7-473(3).
how is transmutation fact dependent
it is a matter of intent to be gleaned from the facts of each case.
What happens to marital property in the form of earnings?
It becomes marital property in the form of appreciation in the value of the nonmarital estate.
What interest does a spouse have in improvements to nonmarital property?
A spouse has an equitable interest in improvements to property to which she has contributed, even if the property is nonmarital.
What is ‘marital debt’?
‘Marital debt’ is debt incurred for the joint benefit of the parties, regardless of legal liability.
Do the same rules apply to marital debts as to marital property?
Yes, the same rules of fairness and equity apply to both marital property and marital debts.
Who bears the burden of proof for nonmarital debt?
The burden of proving a spouse’s debt as nonmarital rests upon the party making the assertion.
What is the presumption regarding debts incurred before marital litigation?
There is a rebuttable presumption that a debt incurred by either spouse prior to marital litigation is a marital debt.
How must marital debts be treated in equitable apportionment?
Marital debts must be factored into the totality of equitable apportionment.
what kind of property does family court divide
marital
when do you look at whether something is marital property
at the time of the litigation
do you need groudns for divorce to have the court divide the marital property
no; its also in proceedings of separate support and maintenance and over any other marital litigation
when is any fault of a spouse a particulary important factor for equitable distribution
whne the fault impacted econominc cirumstances if the faull happend after the earliest of
- entry of pende lite order
- formal signing of written property or marital agreement or
- entry of permanent order of separate maintance and support or of a permanent order
approving a property or marital settlement agreement between the parties
when is the courts order as to equitable distribution modifiable?
its not unless there is an appeal or remand following proper appeal
for facotr 3 of equitable distribution (contribution of each spose to the marital property) when is the contribution valued
at the date of filiig
is contribution limited to money
no
what is considered to be nonmartial property (at the time of filing) – 5
- property acquired by inheritance, device, gift from someone other than the spouse
- property aquired before the marriage and property acquired after the happening of the earliest of entry of pendente lite order; formal sighing of written property or marital settlement agreement or entry of permanet order or martial settlement
- property acquired in exchange for property described in 1 or 2
4.property excluded by written contract of the parties.
5.any increase in value in nonmarital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage.
are interspousal gifts (including gifts of property from one spouse to the other made indirecly by way of a third party) marital property?
yes
why do courts have to figure out if property is marital or non martial first
because they dont have jurisdiction over non martial property
when the family court is determining the value of contributions before making an equitable apportionment, what are the three things a court must do /can do
(1) shall make findings of fact from credible evidence of the values of property and services, if any;
(2) is empowered to take judicial notice of official reports of the federal and state governments,
(3) has the authority to appoint experts as necessary for the purpose of valuation of property and
contributions and to assess the cost against any or all parties to the action.
because valuation of property is to be determinted at the time of filing, what happnes if couple files, gets back together, and files again
the valuation should be based on the second filing; but if a value is significantly different , courts will look to see if the value change makes sense or if ti was bad faith
what does it mean when a court sequesters property
take legal possession of (assets) until a debt has been paid or other claims have been met.
when can the court order the sequesteration of a party’s real and personal property in the state (2)
- where it appears that personal jurisdiction may not be obtained over an absent party
- where a party refuses to comply with an order of the court
how is the sequestered property and the income from it applied in equitable distribution
may be applied in whole or in part, at the direction of
the court and as justice may require, so as to achieve an equitable apportionment of property
what happens if the property that is sequestered is insufficient to pay what is required
the court can direct the mortgaging of or the public or private sale of a sufficient amount of the sequestered
property to pay what is required.
how can the court carry out its order of equitable distribution 2
- The court may direct a party to execute and deliver any deed, bill of sale, note, mortgage, or other
document necessary to carry out its order of equitable apportionment. - any other reasonable means
what happens if a party fails to comply with an equitable distribution order
the court may direct the clerk of court in the county in which the property involved is situate to execute and
deliver the document, and this performance by the clerk is as effective as the performance of the party
would have been.
what is a notice of pendency action
a docutment that informs the public of a pending lawsuit over real property
has the same effect as a notice in civil actions
who can file a notice of pendancy
either spouse
When are a spouse’s property rights under this article effective against third parties for real property?
Only after a Notice of Pendency of Action is filed with the clerk of court in the county where the property is located.
When are a spouse’s property rights under this article effective against third parties for personal property?
Only after the third party receives written notice from either spouse that marital litigation has been filed.
Are third parties’ prior rights in real property affected by a later-filed notice of pendency?
No, prior rights in real property are not affected by the filing.
Are third parties’ prior rights in personal property affected by written notice of marital litigation?
No, prior rights in personal property are not affected by receiving notice.
What can a party apply for upon entry of judgment requiring payment or transfer of property?
A party may apply to the court for issuance of a transcript of judgment.
What jurisdiction do family courts have over contracts?
The family courts of this State have subject matter jurisdiction over all contracts relating to property involved in a proceeding under this article.
What additional authority do family courts have regarding contracts?
Family courts also have jurisdiction over the construction and enforcement of those contracts.
what do we need for an accurate finding of valuation of property
specfic valuations; if the parties cant agree the court can hire an appraiser but they cant pick a number out of thin air
what does the court need to loook at in terms of appreciation or depreciation
A court reviewing a property distribution must look at the appreciation or depreciation of marital assets with regard
to the entire martial estate and not the assets individually.
can the cash value of life insurance polices be include
yes
can contributions, direct or indirect of the spouses to the aquisction of the property (step three of equtiable distribution) include manual labor
yes
does equitbable distribution have to be 50/50
no it just needs to be equitable doesnt need to be equal
