Understanding Marital Property:  Does it Matter Whose Name is on the Title to the Marital Residence?

Posted by Leslie SarjiAug 01, 20230 Comments


When it comes to the dissolution of a marriage, one of the most sensitive and complex issues to navigate is the division of marital property. In South Carolina, all assets acquired during the marriage are considered marital property, subject to equitable distribution. However, many couples often wonder about the significance of having their name on the title and/or the mortgage on the marital residence.

Understanding Marital Property in South Carolina

South Carolina follows the legal concept of equitable distribution, meaning that marital property is divided fairly, but not necessarily equally, between divorcing spouses. Marital property encompasses all assets acquired during the marriage, regardless of whose name is on the title, unless it is considered separate or non-marital property. The marital residence is typically a primary concern, as it is often one of the most valuable assets to divide.

Deeds and Title Ownership

Whether the deed and/or mortgage are in one spouse's name or both, it does not affect the property's classification as marital or separate. What matters most is when and how the property was acquired.

Marital versus Separate Property

Property obtained by either spouse before the marriage, or through gift or inheritance, or after date of filing of an action for separate maintenance and support or for divorce is usually considered separate property. However, if the value of separate property increases during the marriage due to active efforts from both spouses, some of the equity in the home may be subject to equitable distribution.

Equitable Distribution Factors

When determining property distribution, South Carolina family courts consider various factors to ensure a fair outcome. These factors include:

  1. Length of the marriage
  2. The age and health of both spouses
  3. The income and earning potential of each spouse
  4. Each spouse's contribution to marital assets
  5. Non-monetary contributions, such as child-rearing and homemaking
  6. Marital misconduct or fault (if applicable)
  7. Current and future needs of each spouse

Seeking Legal Advice

Given the complexity of property division and the intricacy of South Carolina's laws, it is advisable to consult a knowledgeable family law attorney. An experienced attorney can guide you through the process, ensuring your rights are protected and advocating for a fair distribution of assets.


Determining the ownership rights to a marital residence in South Carolina is not solely based on whose name appears on the title or mortgage. Instead, a multitude of factors influence the classification of property as marital or separate, and ultimately, the equitable distribution during a divorce. Seeking legal advice from a trusted family law firm can help you navigate through the intricacies of the law, ensuring a fair and just outcome during this challenging time in your life. Remember, every case is unique, and having an experienced attorney by your side can make all the difference.  Call us at Sarji Law Firm to discuss your options.