Who pays what: marital debt in a South Carolina divorce

The house and the retirement accounts get all the attention. Then somebody prints the credit card statements and the real question arrives: whose debt is this now? Marital debt in a South Carolina divorce is not divided by whose name is on the account, and understanding the actual rule usually changes the negotiation.

Short answer: Debt incurred during the marriage is divided along with the property, as part of one equitable apportionment. The name on the statement is not the test, and the family court's division of it is final.

Debt is a factor in dividing property, not a separate case

South Carolina does not run a separate proceeding for debts. Under S.C. Code § 20-3-620(A), the court makes “a final equitable apportionment between the parties of the parties' marital property.” Debt enters that same calculation.

It enters through § 20-3-620(B)(13), which requires the court to consider:

liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;

Two phrases in that factor do the work. Encumbrances on marital property “must be equitably divided” — that is mandatory language. And “any other existing debts incurred by the parties or either of them during the course of the marriage” reaches debt in one spouse's name alone.

Whose name is on it does not decide it

This is the part that surprises people. A credit card opened solely by one spouse, used for household expenses during the marriage, is still a debt incurred during the marriage and still lands in the § 20-3-620(B)(13) analysis.

The same logic runs in the other direction. Being a joint account holder does not mean you carry half. The court apportions equitably, which is not the same as equally, and it does so with the whole factor list in view.

One caution that matters more than the law: a family court order allocating a debt binds your spouse, not the lender. If your name is on the account and your spouse is ordered to pay it and then does not, the creditor can still come after you. That is a reason to refinance, close, or transfer accounts as part of the settlement rather than relying on the order alone.

Which debts are marital

The test is not whose name is on the account, and it is not simply when the debt was run up. In Hardy v. Hardy, 311 S.C. 433, 429 S.E.2d 811 (Ct. App. 1993), the Court of Appeals put it directly:

For purposes of equitable distribution, “marital debt” is debt incurred for the joint benefit of the parties regardless of whether the parties are legally jointly liable for the debt or whether one party is legally individually liable.

Timing sets a starting point, not the answer. Hardy also held that the statute creates a presumption that a debt either spouse incurred before marital litigation is a marital debt and must be factored into the apportionment, and that the presumption is rebuttable. Where a spouse says a debt is not marital, the burden of showing that rests on them.

Hardy makes one more point worth knowing. What the family court divides is the net estate: provision for paying the marital debts is apportioned alongside the property itself, not after it. The classification of property follows a parallel rule in § 20-3-630, where marital property is what was acquired during the marriage and owned as of the date of filing.

• Mortgages and home equity lines on the marital home — encumbrances on marital property, which the statute says must themselves be equitably divided.
• Credit cards used for household and family expenses during the marriage, whoever's name is on them.
• Car loans on vehicles acquired during the marriage.
• Medical debt incurred during the marriage.
• Student loans — the harder category, because the benefit often outlives the marriage and the analysis turns on when the debt was taken on and who gained from it.

How assets are sorted into marital and non-marital is the companion question — our post on how separate property becomes marital in a South Carolina divorce covers it.

The full factor list still applies

Section 20-3-620(B) sets out fifteen factors, and debt is only the thirteenth. The court weighs the duration of the marriage, marital misconduct, each party's contributions, income and earning potential, the non-marital property of each, custody arrangements, and more, before arriving at a single apportionment.

That is why a debt argument rarely stands alone. A spouse who ran up debt on an affair, or who dissipated marital funds, is arguing about misconduct and contribution at the same time as they argue about the balance owed.

Our older overview of considerations in South Carolina property division walks through how these factors interact.

The division is final — that is the part people miss

Section 20-3-620(C) states that the court's order as it affects distribution of marital property “shall be a final order not subject to modification except by appeal or remand following proper appeal.”

Compare custody or alimony, both of which can be revisited when circumstances change. Property and debt allocation cannot. If the number was wrong, the time to fix it is before the order is entered, not two years later when the balance turns out to be larger than anyone thought.

Title issues deserve the same attention before signing — see our post on how divorce converts joint tenancy deeds in South Carolina.

What to do before you agree to anything

• Pull a credit report for yourself so the list of accounts is complete rather than remembered.
• Get current payoff figures, not statement balances.
• Identify every account where you are a joint holder or a co-signer — those are your exposure regardless of the order.
• Ask for refinancing or closure as a term of the agreement, with a deadline.
• Remember § 20-3-620(C): once the property order is final, it does not reopen.

Frequently asked questions

Am I responsible for my spouse's credit card if my name is not on it?

Possibly, as between the two of you. Section 20-3-620(B)(13) reaches debts incurred by “either of them” during the marriage, so a solely-titled card used during the marriage is part of the apportionment. Whether you end up paying it is the court's equitable call.

What about debt my spouse ran up after the case was filed?

The timing arguments get stronger the further the debt sits from the marriage. Section 20-3-630 uses filing and certain pendente lite and settlement events as cut-offs for classifying property, and the same events shape the debate about late-incurred debt.

The order says my ex pays the loan. Why is the bank calling me?

Because the bank was not a party to your divorce. The order allocates responsibility between spouses; it does not release you from a contract with a lender. This is why refinancing or closing joint accounts belongs in the agreement.

Can we change the debt division later if the balance was wrong?

Generally no. Under § 20-3-620(C) the property distribution is final except by appeal. Verify the numbers before the order is entered.

Talk to a Charleston family law attorney

Debt is where a settlement that looked balanced quietly stops being balanced. 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.

6. Legal & citations tracker

No case law is cited. The student-loan paragraph and the “order does not bind the lender” point are both stated as practice without authority — neither is attributed to a case, because none was pulled for them. They are standard, but if the attorney wants them cited, the cases must be pulled first.