Can my wife get half my retirement?
1 Answer from Attorneys
Maybe. South Carolina is an "equitable apportionment" state. That means the Family Court Judge can divide up the marital property and debts in a way that is equitable between the spouses. Equitable does not necessarily mean 50/50, but it does in many cases.
The first step is for the Court to determine what property is marital and what property is non-marital. A basic definition of marital property is any property that is acquired from the date of marriage until the date of filing for separate support and maintenance or divorce. Of course, it is possible to obtain property during the marriage that is non-marital. A basic definition of non-marital property is property that was owned prior to marriage or if obtained during the marriage come by way of gift from a third party (not your spouse) or inheritance.
Once we know what the marital estate looks like all of the marital assets and debts will be divided between the spouses in an equitable way but it is not necessary to divide every single asset.
For example, the marital home may have $100,000.00 of equity. You may also have a 401(k) that is completely marital with a value of $100,000.00. If these are the only two assets an "equitable apportionment" may be that you keep your 401(k) and your wife keeps the home. Another way to apportion would be that your wife keeps the home and pays you $50,000 (1/2 of the equity) and you transfer $50,000 to her from your 401(k) (1/2 of the value of the account).
Every case is different and of course it depends on the facts of your particular situation.