How the Court Determines Alimony
When contemplating divorce and alimony, it is important to first keep in mind that South Carolina has a unique rule when it comes to alimony. A spouse who is seeking alimony may be barred from receiving it if he/she is found to have had committed adultery ANYTIME prior to:
- the formal signing of a written property or marital settlement agreement, OR
- entry of a permanent order of separate maintenance and support or a permanent order approving a property or marital settlement agreement.
Essentially what this rule is saying is, if you want alimony, you ought not to engage in any adulterous behavior at any time prior to the two events stated above. Even in no fault divorces, once the mandatory one-year separation period has begun, there can be no adulteress behavior on behalf of the spouse that is seeking alimony. Though the couple may be mentally separated, and physically separated by living in separate households, the court nevertheless views the marriage as legally valid during this time. Any extra marital affair could have significant consequences on the ability to collect alimony.
Alimony and separate maintenance and support can be awarded on a temporary bases and/or permanently for such amount and for however long the court deems appropriate. When the court is considering alimony arrangements it bases its determination on several factors.
SC Code § 20-3-130 (C) lists factors the court will consider:
- The length of the marriage and how old the couple was when they got married;
- The physical and emotional condition of each spouse;
- The educational background and whether one spouse sacrificed their own educational gain for the other;
- Employment history and employment potential of both spouses;
- The standard of living established during the marriage;
- Current earnings and potential earning power of each spouse;
- Current expenses and anticipated expenses of both spouses;
- Properties owned and apportionment during the separation;
- Custody of the children and whether the custodial parent is required to seek employment outside of the home;
- Marital misconduct (this is where the bar on adultery comes into play);
- Tax consequences;
- The existence and extent of any support obligation from a previous marriage; and
- Any other factor the court considers relevant.
To reiterate, the court has complete discretion when determining alimony arrangements. Once the above factors are presented to the court, the judge will likely order one of the following “types” based on the evidence presented. SC Code § 20-3-130 (B).
- Is an order for the payment of alimony on an ongoing basis for an indefinite amount of time. Periodic alimony can be terminated upon remarriage or continued cohabitation of the supported spouse, and of course death of either spouse. It can also be modified for a change in circumstance. It is important to keep in mind that the court will revisit and revise this form of alimony over time. Periodic alimony is often awarded when a couple have been married for decades and have established a certain lifestyle.
- Can be a one-time payment for a determined amount or paid overtime for that same amount, no less and no more. Lump-sum alimony is only terminated upon the death of the supported spouse and is not modifiable. Meaning it cannot be re-evaluated based on a change of circumstance like in periodic alimony. Lump-sum alimony is awarded when the judge determines that some amount is owed, but not on a permanent basis.
- Like lump-sum alimony, rehabilitative is also a set dollar amount that can be paid in one installment or by payments over time. If making payments overtime, it is important to know that the payments can be terminated upon remarriage of the supported spouse, continued cohabitation of the supported spouse, or death of either spouse (same as periodic). The purpose of rehabilitative alimony is just as it states – to put the supported spouse in a position where he/she is able to support themselves moving forward. This type of alimony is often awarded to a spouse that is in school to pursue a certain career path and will end upon completion/graduation.
- Again, is also a set dollar amount that is paid rather in one payment or several payments over time. It is terminated upon remarriage of the supported spouse, continuous cohabitation of the supported spouse, or death of either spouse. Where this differs is that reimbursement alimony may not be modified or terminated because of a change in circumstance. This type of alimony is often awarded when the now supported spouse, previously during the marriage, supported the other so that the other could gain a lucrative career.
The divorce process can be difficult to navigate. Our family attorney is Jennifer Shafer and she can help guild you though this confusing and stressful time.
If you would like to get in contact with our office, please call 843.212.3188 or email Jennifer.