Can I buy out my former partner’s interest in a house if both of our names are on the deed and mortgage? – South Carolina

Short Answer

Yes. A South Carolina co-owner can buy the other owner’s interest by agreement or, in some cases, through a partition or Family Court proceeding. The parties must determine the property’s value, mortgage payoff, ownership shares, and any valid credits before setting the price. A deed transfer does not remove a borrower from the mortgage; the lender must approve a refinance, assumption, or other written release.

Understanding the Problem

In South Carolina, can a former spouse who lives in a jointly owned home acquire the other co-owner’s share, keep the property, and remove the departing owner from both the deed and mortgage? The answer turns on whether the divorce proceedings already resolved the home, whether the owners can agree on value and accounting adjustments, and whether the resident owner can obtain the lender’s approval.

Apply the Law

South Carolina treats ownership of the property and responsibility for the mortgage as separate issues. Co-owners may negotiate a voluntary buyout. If they cannot agree and no controlling Family Court order resolves the property, a co-owner may seek partition in the Court of Common Pleas for the county where the property is located. The court can allot the property to one owner with an accounting payment to the other, or order a sale when a fair allotment cannot be made.

Key Requirements

Authority to transfer the property: Both owners may sign a settlement and deed, or a court with jurisdiction may direct the transfer.
Reliable valuation and accounting: The calculation generally starts with fair market value minus the mortgage payoff and other liens. The parties must then address ownership percentages and claimed credits for mortgage principal, taxes, insurance, necessary repairs, improvements, or other property-related expenses.
Mortgage release: Removing a name from the deed does not remove that person from the loan. The lender must approve a refinance, permitted assumption, payoff, or written release.
Correct court: Family Court may control when the home remains part of pending marital litigation or an existing property order. Otherwise, the Court of Common Pleas generally handles partition between record co-owners.

What the Statutes Say

S.C. Code § 15-61-50 (Partition jurisdiction and allotment) – authorizes the Court of Common Pleas to divide property, allot it to one owner after an accounting, or order a sale when fair division or allotment is not practical.
S.C. Code § 15-61-25 (Purchase by a nonpetitioning co-owner) – gives a nonpetitioning co-owner a formal opportunity to purchase the filing owner’s interest and establishes valuation and payment deadlines.
S.C. Code § 20-3-620 (Equitable division of marital property) – directs Family Court to consider contributions, the family home, custody arrangements, liens, and support obligations when dividing marital property.
S.C. Code § 20-3-660 (Family Court authority over property transfers) – allows Family Court to require deeds and other documents or order a public or private sale to carry out equitable division.

Analysis

Apply the Rule to the Facts: Both names on the deed establish that both parties hold a record interest, so the resident owner cannot remove the other owner without consent or a court order. Several years of mortgage payments may support an accounting claim, but they do not automatically erase the other owner’s equity; the payment history, principal reduction, possession of the home, prior orders, and responsibility for expenses all matter. Caring for the children may be relevant in unresolved Family Court property proceedings, but it does not by itself transfer title.

The buyout should start with a current appraisal, a written mortgage payoff, a title search, and records of property-related payments. For more detail, see how equity in South Carolina co-owned property is calculated. The final settlement should state the agreed value, recognized credits, payoff obligations, closing deadline, deed terms, and what happens if financing fails.

Child support should not be informally withheld or offset against the property price. If an existing support order would change as part of a broader settlement, the parties should present that issue separately to Family Court for approval. A private property agreement alone does not modify a support order.

Process & Timing

Who files: A record co-owner. Where: The Clerk of Court for the South Carolina Court of Common Pleas in the county where the house is located, unless pending marital litigation or an existing Family Court order controls the property. What: A partition complaint and any required notice of lis pendens, or the appropriate request in the existing Family Court case. When: If the other owner files partition, a nonpetitioning owner seeking the statutory purchase right must notify the court no later than 10 days before the partition trial.
Value and accounting: The parties may agree on an appraisal and adjustments. If they cannot, the partition court may appoint one or more approved appraisers. Under the statutory purchase procedure, the appraisal report is generally due within 30 days after appointment, and an objection by a petitioning co-owner must be filed within 10 days after the report is filed.
Funding and transfer: After the court completes valuation under the statutory procedure, the purchasing nonpetitioning owner generally has 45 days to pay the price into court. A voluntary settlement may use a different written closing schedule. At closing, the deed is recorded with the county Register of Deeds or Clerk of Court, as applicable, and the departing borrower should receive written confirmation of payoff or release from the mortgage lender.

Exceptions & Pitfalls

Existing divorce order: A final equitable-division order generally cannot be informally rewritten. The parties may need to enforce the order rather than start a separate partition action.
Incorrect equity calculation: Market value is not the same as equity. The mortgage payoff, liens, ownership shares, and approved accounting adjustments must be addressed before calculating a buyout.
Unsupported payment credits: Bank records, loan statements, insurance bills, repair invoices, and prior court orders carry more weight than estimates. Mortgage payments do not always produce a dollar-for-dollar credit, particularly when one owner had exclusive use of the home.
Deed signed before loan release: A departing owner may lose title while remaining liable for the debt. The deed transfer and lender-approved release should occur through a coordinated closing.
Financing failure: If the resident owner cannot complete the buyout, the court may proceed toward a sale. Additional information appears in this discussion of what happens when a former spouse cannot finance a South Carolina buyout.
Support issues mixed into the property case: Child support remains subject to Family Court orders. A party should not stop, reduce, or credit support payments without proper court approval.

Conclusion

A South Carolina co-owner can buy a former partner’s interest if the parties agree or the proper court approves an allotment or marital-property transfer. The price should reflect fair market value, the mortgage payoff, ownership shares, and supported accounting adjustments. The departing owner remains liable on the mortgage until the lender provides a release. If the other owner files partition, submit written notice of the intent to purchase to the Court of Common Pleas no later than 10 days before trial.

Talk to a Partition Action Attorney

If a jointly owned South Carolina home, mortgage liability, or proposed buyout remains unresolved after a breakup, our firm has experienced attorneys who can help evaluate the correct court, calculate potential equity, document a settlement, and protect important deadlines.

Disclaimer: This article provides general information about South Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed South Carolina attorney.