Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Detailed Answer
In South Carolina, spouses who hold real property together act as co-owners until a final divorce decree issues. You may file a partition action to divide or sell property regardless of your marital status or pending divorce. Under S.C. Code § 15-39-10, any co-owner can ask the Circuit Court to partition real property. The court will choose one of two methods:
- In kind: The court divides the land into parcels so each co-owner receives a portion.
- By sale: The court orders the property sold and distributes the proceeds.
If you and your spouse separate but have not yet divorced, your right to partition remains intact. However, once a divorce petition is filed, the Family Court has exclusive authority over equitable distribution of marital assets under S.C. Code § 20-3-620. In practice, if you initiate partition in Circuit Court and then file for divorce in Family Court, the family judge may stay the partition proceeding to avoid conflicting orders. Conversely, if you partition first, the family judge will account for your portion when dividing marital property.
While partition can streamline the separation of assets, it may also affect your share in the divorce. Before pursuing partition, consider how it may interact with equitable distribution and any mortgages, liens, or tax consequences. Consulting an attorney can help you weigh the pros and cons and ensure both actions proceed smoothly.
Helpful Hints
- Confirm ownership details by reviewing the deed to see if you hold title as joint tenants or tenants in common.
- Check for any liens or mortgages that may affect the partition process.
- Coordinate with your divorce attorney to decide whether to file for partition before or after the divorce petition.
- Gather records of your financial contributions, such as mortgage payments, taxes, and improvements.
- Explore mediation or alternative dispute resolution to reach a cooperative agreement and avoid litigation costs.
- Understand the tax implications of selling property or transferring a share.
- Hire a licensed South Carolina attorney experienced in real estate and family law to guide you.