Protecting Separate Property in South Carolina

South Carolina is an equitable distribution state—courts divide marital property fairly under SC Code § 20-3-620, guided by 15 statutory factors, not a rigid 50/50 split. But there's a key protection: the court cannot apportion nonmarital property. Under SC Code § 20-3-630, certain assets stay with the original owner. The catch? You must understand South Carolina's transmutation rules and tracing requirements to protect what's yours. Whether you're navigating an uncontested or contested divorce, knowing these rules is essential.

What Qualifies as Nonmarital Property in South Carolina?

Under SC Code § 20-3-630(A), nonmarital property includes:

• Premarital property: Assets you owned before the marriage
• Gifts and inheritances: Property received by gift, bequest, devise, or inheritance from a third party (not your spouse)
• Exchange property: Assets acquired in exchange for nonmarital property
• Post-filing acquisitions: Property acquired after filing or certain other statutory cutoff events
• Property excluded by agreement: Assets covered by a valid prenuptial or postnuptial agreement

Critical exception: Interspousal gifts are marital property by statute—even gifts made indirectly through a third party. If your spouse gave it to you, it's marital.

The Filing Date Cutoff—Not Separation

Unlike some states, South Carolina does not use a date-of-separation cutoff for property classification. Under § 20-3-630(A), marital property is identified as of the date of filing (or commencement of marital litigation). This means:

• Living apart doesn't change classification: Simply moving out doesn't remove property from the marital estate
• Wages before filing are marital: Even if earned while separated, income before filing belongs to the marital estate
• Property acquired after filing is nonmarital: Once you file, your new earnings and acquisitions are yours

The "earliest of" rule under § 20-3-630(A)(2) can also end acquisition: a pendente lite order, formal property settlement agreement, or permanent separate maintenance order.

Transmutation: When Separate Becomes Marital

South Carolina recognizes transmutation—when nonmarital property converts to marital. Under Johnson v. Johnson (1988) and Wilburn v. Wilburn (2013), transmutation occurs when:

• Property becomes untraceable: Commingling with marital assets to the point you can't identify the original source
• Joint title is taken: Retitling separate property into both names
• Marital use shows intent: Using property in support of the marriage in a way demonstrating intent to make it marital

Important: The spouse claiming transmutation bears the burden of proof. They must show objective evidence of intent during the marriage—mere use in support of the marriage, without more, is insufficient. But once transmutation is found, the entire asset enters the marital estate; there's no partial carve-out under Pittman v. Pittman (2014).

Source-of-Funds Tracing

South Carolina applies a source-of-funds approach to property classification. Under Smith v. Smith (2009) and Wannamaker v. Wannamaker (1991):

• Character follows the source: Property purchased with nonmarital funds (inheritance, gifts, premarital savings) is nonmarital
• Traceable commingling preserves character: If you can trace funds despite mixing accounts, the nonmarital character can survive
• Untraceable commingling risks transmutation: Without clear records, courts may find the property has become marital

The spouse asserting nonmarital status bears the burden. Incomplete or contradictory records can defeat your claim.

Appreciation: Passive vs. Active

Under § 20-3-630(A)(5), increases in nonmarital property value remain nonmarital except when the increase resulted "directly or indirectly from efforts of the other spouse during marriage." Under Calhoun v. Calhoun (2000):

• Passive appreciation stays separate: Market-driven increases remain with the owner
• Active appreciation is marital: If the non-owner spouse's labor or marital funds increased the value, that portion is marital
• Principal paydown is marital: Mortgage payments from marital earnings create a marital interest
• Improvements count: If marital funds paid for upgrades that increased value, that increase is marital

Estimate Your South Carolina Divorce Costs

Property disputes can significantly increase divorce costs, especially when tracing is required. South Carolina filing fees are approximately $150. Use our calculator to estimate your total expenses:

Protection Strategies

• Keep separate assets titled separately: Don't put premarital or inherited property into joint names
• Maintain segregated accounts: Keep inherited and premarital funds in individual accounts
• Document everything: Retain gift letters, inheritance records, premarital account statements, and property records
• Track commingled funds carefully: If funds must be mixed, keep meticulous records showing the nonmarital source
• Avoid interspousal gifting: Remember—gifts between spouses are marital by statute
• Consider a prenuptial agreement: Written contracts can exclude property from the marital estate

Key Takeaways

• Equitable distribution applies: Fair division based on 15 statutory factors, not automatic 50/50
• Filing date is the cutoff: Not separation—property accrues until you file
• Transmutation requires proof: Joint title, commingling, or marital use with intent can convert separate to marital
• Source-of-funds tracing works: Document your nonmarital contributions to preserve character
• Passive appreciation stays separate: But active appreciation from the other spouse's efforts is marital
• Interspousal gifts are marital: By statute, gifts between spouses are divisible

For the complete South Carolina property division guide and divorce timeline, see our detailed resources. For official forms, visit the South Carolina Judicial Branch Divorce Resources.