Under South Carolina law, marital property is defined as all real and personal property that was acquired by the parties during the marriage that is owned when marital litigation is commenced, regardless of how legal title is held. This definition is similar to the definition of marital property that is used in other "equitable distribution" jurisdictions.

If the parties are unable to agree on how to divide their property, the Family Court has the authority to do so, either in the context of a divorce proceeding or a separate support and maintenance action. The Family Court divides the property in accordance with the rules of equitable apportionment that are delineated in South Carolina case law and divorce statutes.

The Family Court addresses marital property through the following, sequential four-step process:

1. identify the marital property to be divided;
2. determine the fair market value of the property;
3. identify the parties' direct and indirect contributions of each party to the acquisition of the property; and
4. provide for an equitable distribution of the property.

The South Carolina Code sets forth specific criteria the court must weigh in determining what would be the most equitable apportionment of marital property. The fifteen individual criteria, as set forth in the South Carolina Statutes, are as follows:

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
   1. entry of a pendente lite order in a divorce or separate maintenance action;
   2. formal signing of a written property or marital settlement agreement; or
   3. 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 spouse'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.

(See South Carolina Code, § 20-7-472).