Before anyone argues about who gets what, there is a quieter question that decides the size of the pot: which assets are even eligible to be divided. Marital property in South Carolina is defined by a rule about timing, not about titles — and the family court has no power at all over what falls outside it.
Short answer: Marital property is everything acquired by either party during the marriage and owned as of the date of filing, regardless of whose name is on it — subject to five statutory exceptions.
The rule turns on when, not whose name
S.C. Code § 20-3-630(A) defines marital property as “all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation... regardless of how legal title is held.”
Those last six words settle a great many arguments before they start. A vehicle titled to one spouse, a brokerage account in one name, a business registered to one of you — title does not remove any of them from the marital estate if they were acquired during the marriage.
The definition has two moving parts: acquired during the marriage, and owned at the date of filing. Both have to be true.
What follows from that is the single most useful thing to know before you argue about any particular asset, and it is a question of who has to prove what. If something was acquired during the marriage and owned when the case was filed, it is PRESUMED marital, and the spouse who says otherwise carries the burden. In Morehouse v. Morehouse, 317 S.C. 222, 452 S.E.2d 632 (Ct. App. 1994), a husband held company stock he had acquired during the marriage. The Court of Appeals put it plainly: because he acquired it during the marriage and owned it when the litigation commenced, it was “presumed to be marital property,” and he “thus had the burden of establishing the nonmarital character of the property.”
So the practical question is rarely “is this marital?” It is “can the spouse claiming it is separate prove that?”
One more thing about the second half of the definition, because it is the scenario people actually worry about: what if a spouse got rid of something just before filing? Owning it on the date of filing is the general rule, but it is not a way to launder assets out of the estate. In Shorb v. Shorb, 372 S.C. 623, 643 S.E.2d 124 (Ct. App. 2007), the Court of Appeals put it this way:
[I]f a party attempts to unfairly extinguish ownership of marital property before the date of filing or to improperly delay ownership of marital property until after litigation is commenced, the family court must include that property in the marital estate. To do otherwise would “promote fraud, reward misconduct, and contravene legislative intent.”
Note what that costs, though. In Shorb itself the husband had sold stock options and spent the proceeds before filing, and the Court held they came into the estate only if the wife proved fraud by CLEAR AND CONVINCING EVIDENCE. She had not, so they stayed out. The rule is real and the standard is high: suspicion about timing is not enough, and this is a point to raise early, while the paper trail can still be followed.
The five exceptions
Section 20-3-630(A) then carves out five categories of nonmarital property:
- Property acquired by inheritance, devise, bequest, or gift from someone other than the spouse.
- Property acquired before the marriage — and property acquired after the earliest of a pendente lite order, the formal signing of a written property or marital settlement agreement, or entry of a permanent order of separate maintenance and support or approving such an agreement.
- Property acquired in exchange for property in the first two categories.
- Property excluded by written contract, which the statute says includes an antenuptial agreement — presumptively fair and equitable so long as it was voluntarily executed, both parties were separately represented, and there was the full financial disclosure the family court rules require.
- Any increase in value in nonmarital property, except to the extent the increase resulted directly or indirectly from the efforts of the other spouse during the marriage.
The second exception matters more than it looks. It gives you a cut-off date that is often earlier than the divorce — a pendente lite order or a signed settlement agreement stops the clock, so assets acquired after that point are not swept in.
Two traps in the exceptions
The fifth exception is the one that costs people money, and it cuts both ways. The rule is that any increase in the value of non-marital property during the marriage is itself non-marital — except to the extent the increase resulted, directly or indirectly, from the efforts of the other spouse during the marriage.
So an inherited house that simply went up with the market stays yours. What is not protected is the part of the rise your spouse helped create. In Calhoun v. Calhoun, 331 S.C. 157, 501 S.E.2d 735 (Ct. App. 1998), the family court valued the properties at the date of marriage and again at the date of filing, allowed for inflation over the years in between, and divided only the appreciation left over. The Court of Appeals also confirmed the other route in: “[t]he increase in the value of a nonmarital asset resulting from the use of marital funds to reduce indebtedness on the asset constitutes marital property subject to equitable division.”
Two practical consequences. Passive growth is generally safe. Paying down the mortgage on your separate house with money earned during the marriage is not, and neither is a spouse’s labour on it.
The other trap sits at the end of subsection (A): “Interspousal gifts of property, including gifts of property from one spouse to the other made indirectly by way of a third party, are marital property which is subject to division.” The engagement ring aside, a gift between spouses does not become that spouse's separate property. It goes into the pot.
Non-marital property can also lose its character during the marriage. That is called transmutation, and it happens in three ways: the property becomes so commingled with marital property that it cannot be traced, it is titled jointly, or it is used by the parties in a way that shows they intended to treat it as marital.
The third route is the one people worry about, and it is narrower than it sounds. Transmutation turns on INTENT, and the spouse claiming it has to prove it. In Murray v. Murray, 312 S.C. 154, 439 S.E.2d 312 (Ct. App. 1993), the Court of Appeals held that a spouse claiming transmutation “must produce objective evidence showing that, during the marriage, the parties themselves regarded the property as the common property of the marriage.” And it added the limit that matters most:
[T]he mere use of separate property to support the marriage, without some additional evidence of intent to treat it as property of the marriage, is not sufficient to establish transmutation.
In Murray itself the wife had lived in the home for more than seventeen years, worked on improvements to it and to rental properties, and the rental income went into joint accounts. That was not enough. The court noted that contributions of time and labour do not necessarily prove transmutation, though improvements may earn the contributing spouse an equitable interest.
Our post on how separate property becomes marital in a South Carolina divorce goes through that route in more detail.
What the court cannot touch
Section 20-3-630(B) is one sentence and it is absolute: “The court does not have jurisdiction or authority to apportion nonmarital property.”
That is a limit on power, not a factor to be weighed. If an asset is properly classified as non-marital, the family court cannot divide it however unequal the outcome looks. It is why classification is argued so hard, and why a settlement that quietly treats a non-marital asset as divisible is giving something away that could not have been ordered.
Non-marital property does not vanish from the case entirely — the apportionment factors in § 20-3-620(B) require the court to consider the non-marital property of each spouse when dividing what is marital. It informs the division without being part of it.
Where classification fights actually happen
- Inheritances received during the marriage and then deposited into a joint account.
- A home one spouse owned before the marriage that both then paid for and improved.
- A business started before the marriage whose value grew during it.
- Retirement accounts that straddle the wedding date — part pre-marital, part marital.
- Assets acquired after separation but before any pendente lite order or written agreement.
Title questions on real property deserve separate attention — see how divorce converts joint tenancy deeds in South Carolina.
Frequently asked questions
My inheritance is in my name only. Is it safe?
Inheritance from someone other than your spouse is non-marital under § 20-3-630(A)(1), and the court cannot apportion it. What is not automatically safe is any increase in its value that came from your spouse's efforts during the marriage, or the character of the asset if it was mixed into joint holdings.
Does it matter whose name is on the account?
Not for classification. The statute divides property acquired during the marriage “regardless of how legal title is held.”
What about the house I owned before we married?
Property acquired before the marriage is non-marital under § 20-3-630(A)(2). The complications come from what happened afterwards — payments from marital income, improvements, and re-titling.
I gave my spouse a car as a gift. Is it theirs now?
No. Interspousal gifts, including those routed through a third party, are expressly marital property subject to division under § 20-3-630(A).
When does the clock stop?
At the earliest of a pendente lite order, the formal signing of a written property or marital settlement agreement, or entry of a permanent order of separate maintenance and support or approving such an agreement.
Talk to a Charleston family law attorney
Classification decides the size of the estate before anyone argues about percentages, and it is the part of a divorce most often settled on assumptions rather than the statute. Klok Law Firm handles South Carolina family law in Charleston, Mount Pleasant, Berkeley, and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.
This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.