H*2008 Session 106 (1985-1986)
H*2008(Rat #0609, Act #0522 of 1986) General Bill, By T.E. Huff, J.F. Anderson,
P.T. Bradley and Wilkins
A Bill to amend Chapter 7 of Title 20, Code of Laws of South Carolina, 1976,
relating to the Children's Code and domestic relations, by adding Article 6,
so as to provide for the equitable apportionment of marital property; and to
provide that this Act shall apply to all actions pending on the effective date
of this Act in which a notice of intention to appeal has not been filed and in
all actions thereafter filed in the family courts of this State.-amended title
11/19/84 House Prefiled
11/19/84 House Referred to Committee on Judiciary
01/08/85 House Introduced and read first time HJ-146
01/08/85 House Referred to Committee on Judiciary HJ-146
03/13/85 House Committee report: Favorable with amendment
Judiciary HJ-1247
03/14/85 House Amended HJ-1338
03/14/85 House Read second time HJ-1338
03/15/85 House Read third time and sent to Senate HJ-1372
03/19/85 Senate Introduced and read first time SJ-905
03/19/85 Senate Referred to Committee on Judiciary SJ-905
04/02/86 Senate Committee report: Favorable with amendment
Judiciary SJ-1389
04/03/86 Senate Debate interrupted SJ-1460
04/15/86 Senate Debate interrupted SJ-1603
04/16/86 Senate Debate interrupted SJ-1609
04/17/86 Senate Amended SJ-1639
04/17/86 Senate Debate interrupted SJ-1656
04/22/86 Senate Amended SJ-2167
04/22/86 Senate Read second time SJ-2172
04/22/86 Senate Ordered to third reading with notice of
amendments SJ-2172
04/23/86 Senate Shealy am. reconsidered and withdrawn SJ-2239
04/23/86 Senate Amended SJ-240
06/02/86 Senate Read third time SJ-3447
06/02/86 Senate Returned SJ-3447
06/02/86 House Non-concurrence in Senate amendment HJ-3554
06/02/86 Senate Senate insists upon amendment and conference
committee appointed Sens. Tom Smith, Bryan, and
Setzler SJ-3474
06/03/86 House Conference committee appointed Huff, Freeman &
Wilkins HJ-3565
06/03/86 Senate Conference report received SJ-3500
06/03/86 Senate Conference report adopted SJ-3508
06/04/86 House Conference report received HJ-3611
06/04/86 House Conference report adopted HJ-3619
06/04/86 House Ordered enrolled for ratification HJ-3619
06/05/86 Ratified R 609
06/13/86 Signed By Governor
06/13/86 Effective date 06/13/86
06/13/86 See Act for explanation of effective date
06/13/86 Act No. 522
06/20/86 Copies available
(A522, R609, H2008)
AN ACT TO AMEND CHAPTER 7 OF TITLE 20, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE CHILDREN'S CODE AND DOMESTIC RELATIONS, BY ADDING ARTICLE 6, SO
AS TO PROVIDE FOR THE EQUITABLE APPORTIONMENT OF MARITAL PROPERTY; AND TO PROVIDE
THAT THIS ACT SHALL APPLY TO ALL ACTIONS PENDING ON THE EFFECTIVE DATE OF THIS
ACT IN WHICH A NOTICE OF INTENTION TO APPEAL HAS NOT BEEN FILED AND IN ALL
ACTIONS THEREAFTER FILED IN THE FAMILY COURTS OF THIS STATE.
Be it enacted by the General Assembly of the State of South Carolina:
Equitable apportionment of marital property
SECTION 1. Chapter 7 of Title 20 of the 1976 Code is amended by adding:
"Article 6
Equitable Apportionment of Marital Property
Section 20-7-471. During the marriage a spouse shall acquire, based upon the
factors set out in Section 20-7-472, a vested special equity and ownership right
in the marital property as defined in Section 20-7-473, which equity and
ownership right are subject to apportionment between the spouses by the family
courts of this State at the time marital litigation is filed or commenced as
provided in Section 20-7-472.
Section 20-7-472. In a proceeding for divorce a vinculo matrimonii or separate
support and maintenance, or in a proceeding for disposition of property following
a prior decree of dissolution of a marriage by a court which lacked personal
jurisdiction over an absent spouse or which lacked jurisdiction to dispose of the
property, and in other marital litigation between the parties, the court shall
make a final equitable apportionment between the parties of the parties' marital
property upon request by either party in the pleadings.
In making apportionment, the court must give weight in such proportion as it
finds appropriate to all of the following factors:
(1) the duration of the marriage together with the ages of the parties at the
time of the marriage and at the time of the divorce or separate maintenance or
other marital action between the parties;
(2) marital misconduct or fault of either or both parties, whether or not used
as a basis for a divorce as such, if the misconduct affects or has affected the
economic circumstances of the parties, or contributed to the breakup of the
marriage; provided, that no evidence of personal conduct which would otherwise
be relevant and material for purposes of this subsection shall be considered with
regard to this subsection if such conduct shall have taken place subsequent to
the happening of the earliest of (a) entry of a pendente lite order in a divorce
or separate maintenance action; (b) formal signing of a written property or
marital settlement agreement; or (c) entry of a permanent order of separate
maintenance and support or of a permanent order approving a property or marital
settlement agreement between the parties.
(3) the value of the marital property, whether the property be within or
without the State. The contribution of each spouse to the acquisition,
preservation, depreciation, or appreciation in value of the marital property,
including the contribution of the spouse as homemaker; provided, that the court
shall consider the quality of the contribution as well as its factual existence.
(4) the income of each spouse, the earning potential of each spouse, and the
opportunity for future acquisition of capital assets.
(5) the health, both physical and emotional, of each spouse;
(6) the need of each spouse or either spouse for additional training or
education in order to achieve that spouses's income potential;
(7) the nonmarital property of each spouse;
(8) the existence or nonexistence of vested retirement benefits for each or
either spouse;
(9) whether separate maintenance or alimony has been awarded;
(10) the desirability of awarding the family home as part of equitable
distribution or the right to live therein for reasonable periods to the spouse
having custody of any children;
(11) the tax consequences to each or either party as a result of any
particular form of equitable apportionment;
(12) the existence and extent of any support obligations, from a prior
marriage or for any other reason or reasons, of either party;
(13) 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;
(14) child custody arrangements and obligations at the time of the entry of
the order; and
(15) such other relevant factors as the trial court shall expressly enumerate
in its order.
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.
Section 20-7-473. The term 'marital property' as used in this article means
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 as provided in Section 20-7-472 regardless of how legal title is held,
except the following, which constitute nonmarital property:
(1) property acquired by either party by inheritance, devise, bequest, or gift
from a party other than the spouse.
(2) property acquired by either party before the marriage and property
acquired after the happening of the earliest of (a) entry of a pendente lite
order in a divorce or separate maintenance action; (b) formal signing of a
written property or marital settlement agreement; or (c) entry of a permanent
order of separate maintenance and support or of a permanent order approving a
property or marital settlement agreement between the parties.
(3) property acquired by either party in exchange for property described in
items (1) and (2) of this section.
(4) property excluded by written contract of the parties. 'Written contract'
includes any antenuptial agreement of the parties which must be considered
presumptively fair and equitable so long as it was voluntarily executed with both
parties separately represented by counsel and pursuant to the full financial
disclosure to each other that is mandated by the rules of the family court as to
income, debts, and assets.
(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.
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 court does not have jurisdiction or authority to apportion nonmarital
property.
Section 20-7-474. In determining the value of contributions prior to making
an equitable apportionment, the court:
(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, including official bulletins, publications, and reports
of general public interest where these reports are made and published by
authority of law or have been adopted by state statute.
(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.
Section 20-7-475. (1) At any stage of a proceeding under this article where it
appears to the court that personal jurisdiction may not be obtained over an
absent party or where a party refuses to comply with an order of the court, the
court may, upon appropriate petition, order the sequestration of that party's
real and personal property which is within this State. The court may also
appoint a sequestrator and, by injunction or otherwise, authorize the
sequestrator to take the property into possession and control. In the case of
an absent party, the court may appoint the party residing in this State as
sequestrator.
(2) The property sequestered and the income from it 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 as set forth in this article.
(3) Additionally, the court, in its discretion, if the property and income
from it which may be sequestered is insufficient to pay what is required, may,
upon terms and conditions as it considers in the interests of justice, direct the
mortgaging of or the public or private sale of a sufficient amount of the
sequestered property to pay what is required.
(4) The family court in which the action is filed has jurisdiction and venue
to sequester property located within this State.
(5) The remedies in this section are cumulative to all other remedies which
may be available to the parties.
Section 20-7-476. 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. If a party so directed fails to comply, 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. The court in
making an equitable apportionment may order the public or private sale of all or
any portion of the marital property upon terms it determines.
The court may utilize any other reasonable means to achieve equity between the
parties, which means are subject to and may not be inconsistent with the other
provisions of this article and may include making a monetary award to achieve an
equitable apportionment. Any monetary award made does not constitute a payment
which is treated as ordinary income to the recipient under either the provisions
of Chapter 7 of Title 12 or, to the extent lawful, under the United States
Internal Revenue Code.
Section 20-7-477. In a proceeding under this article, either party may record
a notice of the pendency of proceedings in the manner provided in civil actions
generally, which has the same effect as a notice in civil actions.
Upon entry of judgment against a party requiring payment of money or transfer
of property, whether by interlocutory order or final decree, a party may apply
to the court for issuance of a transcript of judgment in the form prescribed in
Section 20-7-478. This transcript may be recorded in the office of the clerk of
court of common pleas and indexed in the books of abstracts of judgments of any
county of this State as provided by law.
After the order or decree has been duly recorded and indexed in the office of
the clerk of court of common pleas, the order or decree has all force and effect
of judgments of the courts of common pleas as provided by law, the recording and
indexing constituting record notice to all persons of the order or decree
recorded and indexed.
The recordation and filing of a transcript of judgment does not prevent the
court from exercising any equitable or other presently existing power of
enforcement of the order or decree which is within its jurisdiction.
The statutory lien created by Section 20-3-145 is not effective as against
third parties unless this section has been complied with.
Section 20-7-478. A transcript of judgment may be substantially in the
following form:
STATE OF SOUTH CAROLINA
COUNTY OF IN THE FAMILY COURT
______________________________ ,
Petitioner,
vs.
______________________________ , TRANSCRIPT OF JUDGMENT
Respondent.
NOTICE IS HEREBY GIVEN that in the above-captioned proceeding, (family court
docket # of proceeding or domestic judgment #), filed in the family court of the
State and county aforesaid, judgment was entered against___________ , the
___________ in the action, on the ________ day of________ , 19___ , [in the
amount of____________, as and by reason of (an award of attorney's fees,
equitable division of property, etc.)] OR (requiring conveyance to_____________
of the real property described as following:) Attorneys of record are_________
, representing the petitioner and____________ , representing the respondent.
FURTHER NOTICE IS GIVEN that interest will accrue at the statutory rate from
the _______ day of ____ 19______ , together with costs in the amount
of_____________________ .
_________________________________, Judge of the Family Court
place_________________
date__________________
Section 20-7-479. The family courts of this State have subject matter
jurisdiction over all contracts relating to property which is involved in a
proceeding under this article and over the construction and enforcement of those
contracts."
Time effective
SECTION 2. This act shall take effect upon approval by the Governor and shall
apply to all actions then pending in which a notice of intention to appeal has
not been filed, and in all actions thereafter filed in the family courts of this
State. |