Fitzwater demonstrates willingness to allow greater deviation from equal division of marital property in shorter marriage

The first of the fifteen factors set forth in South Carolina Code Section 20-3-620 regarding the division of marital property is “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.”  South Carolina case law frequently mentions a initial presumption of equal division in long term marriages, with a division deviating slightly from equal based on other factors.  But it rarely discusses how marital property should be divided in a shorter marriage.

Which makes the December 14th Court of Appeals decision in Fitzwater v. Fitzwater, 396 S.C. 361, 721 S.E.2d 7 (Ct. App. 2011), very interesting.  In Fitzwater, the primary issues on appeal involved the division of the marital estate.  The Court of Appeals affirmed three issues regarding the identification or valuation of marital assets.  Wife abandoned one of these issues on appeal and the Court of Appeals refused to address another based on error preservation problems.  It affirmed the family court’s finding that Husband’s premarital real estate wasn’t transmuted into marital property because:

The parties never used the Antioch property as a marital home, never placed the property in Wife’s name, and Husband never made any substantial improvements to the property during the marriage.  In addition, Husband, as the sole mortgagee, did not mortgage the Antioch property for the purpose of its acquisition, but mortgaged it to pay for improvements on the commercial property [which was marital property].  While the parties paid the mortgage payments out of a joint bank account, Wife was never an obligor.  Husband mortgaged the Antioch property to support the parties’ marriage, and the record contains no other evidence of intent to treat the property as marital property.

The Court of Appeals also refused to award Wife a special equity interest in this property because a special equity interest is based on an increase in the value of the property and the Court of Appeals found that:

[A]s to the marital funds used to finance improvements to the Antioch property, the evidence in the record reflects only cosmetic improvements were made during the marriage, and these would not have increased the equity.

The novel issue in Fitzwater was its analysis of length of marriage in affirming an award of 60% of the martial estate to Husband.  It contrasted the ten-year marriage in Fitzwater with the marriages cited in Doe v. Doe, 370 S.C. 206, 634 S.E.2d 51 (2006).  Doe “approve[d] equal division as an appropriate starting point for a family court judge attempting to divide an estate of a long-term marriage,” with the marriages cited in support varying from twenty-one to thirty-two years.  Because the Fitzwater marriage isn’t long term, the 50/50 starting point was not applicable.

In affirming the 60/40 division the Court of Appeals also noted:

The evidence in the record demonstrates Husband’s disproportionate contributions to this ten-year marriage.  Wife brought in little to no money or assets during the marriage, while Husband provided the majority of income and assets.  Wife argues she sacrificed a salary of $85,000 to fulfill marital duties; however, the record shows Wife admitted to only making “forty something thousand” in the years immediately prior to the parties’ marriage.  According to Husband, prior to the marriage, he paid $7,158.99 to one of Wife’s credit card debts, and gave her a house rent free so she could get her finances in order.  During the marriage, Husband also enabled Wife to build an inventory of animals and manage the farm, against his wishes, although the farm operated at a loss.

Fitzwater demonstrates that shorter marriages will apparently allow for greater deviations from an equal division of marital assets.  How much deviation for how short a marriage is something that future case law must clarify.


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