Fornicating (even baby-making) does not turn jointly titled property into “marital property”

Posted Tuesday, May 24th, 2022 by Gregory Forman
Filed under Equitable Distribution/Property Division, Law and Culture, Of Interest to General Public, South Carolina Specific

I’ve been getting a number of recent calls from people in long-term sexual relationships seeking assistance in dividing up their property.  Sometimes these folks have children in common.  Sometimes they do not.  Either way, whatever jointly titled property they do have is not property the family court can divide.

One can somewhat understand their confusion.  Folks who have children in common can think of themselves as family.  Even folks who’ve lived in long-term sexual cohabitations can consider their partners “family.”  South Carolina does not.  With our Supreme Court abolishing prospective common law marriages less than three years ago, I don’t see South Carolina creating some middle ground between married and unmarried.  Thus, folks who obtain jointly titled real estate or businesses while cohabiting in the context of a sexual relationship will divide their property in circuit court, likely in a partition action.  They need some attorney’s assistance, simply not a family law attorney’s.

It could be sheer coincidence that I’ve had three such calls in two months after receiving fewer than ten such calls in the previous 25 years.  Or it could be a sign that our culture’s view of family is running ahead of the law’s.  I’m sure my more conservative colleagues find this conflation of fornication—technically that’s what these folks are doing and it remains illegal under a South Carolina code section that is certainly unconstitutional under Lawrence v. Texas—with family to be yet another sign of a debased culture.  I simply find our culture’s devaluation of marriage—and the younger generations’ increasing belief that stable marriage is unattainable—to be sad.

2 thoughts on Fornicating (even baby-making) does not turn jointly titled property into “marital property”

  1. Very clear and it might open some eyes in SC.

  2. Ervin Blanks says:

    Based on the recent leaked draft opinion of the Supreme Court I wonder whether there will be any right to privacy or liberty interests recognized by the Court. I was struck by the language in the opinion: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. “

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