Am I Entitled to Alimony?
If you are facing a divorce in South Carolina, it’s important to understand your rights. One of those rights may entitle you to alimony. There is no equation used to calculate alimony, leaving the determination to the court’s discretion. The judge will use a number of factors to determine when alimony is appropriate.
The purpose of alimony is to put the spouse that was supported during the marital relationship in the position he or she was in during the marriage. Under Section 20-3-130(c) of the South Carolina code, the following factors are considered by the court in determining alimony:
- 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 action between the parties;
- the physical and emotional condition of each spouse;
- the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential;
- the employment history and earning potential of each spouse;
- the standard of living established during the marriage;
- the current and reasonably anticipated earnings of both spouses;
- the current and reasonably anticipated expenses and needs of both spouses;
- the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
- custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;
- marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of
- the formal signing of a written property or marital settlement agreement
- or entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
- the tax consequences to each party as a result of the particular form of support awarded;
- the existence and extent of any support obligation from a prior marriage or for any other reason of either party;
- and such other factors the court considers relevant.
The judge will weigh these factors and determine if alimony should be awarded. Often, there is a ten-year benchmark. If a couple has been married ten or more years, then most lawyers understand there will be a conversation about alimony – though this is not a legal standard.
Types of Alimony
Depending on the circumstances, there are various types of alimony. In South Carolina , alimony will take one of the following forms:
- Periodic – This is what most people think about when considering alimony. It usually consists of set payments on a reoccurring basis.
- Lump-sum – A set amount that is paid all at once or in installments.
- Rehabilitative – Designed to help the receiving spouse get back up on his or her feet. It is usually a lump sum paid at once or periodically.
- Reimbursement – This type pays a spouse back for an expense occurring during the marriage.
- Separate maintenance and support – Similar to “periodic alimony” in that it pays regular payments, except it is paid during separation and not after divorce.
These forms may be changed or ended, and it depends on which type of alimony is involved.
Bar to Alimony
There is one factor that bars a party from alimony: adultery.
If a party to the divorce action engages in an adulteress affair, the he or she is barred from receiving alimony. From a legal standing, the adultery must have occurred prior to the final divorce decree or prior to the signing of a settlement agreement.
In certain situations when there has been a change in circumstance, the court may modify the alimony obligations. Butler v. Butler, 385 S.C. 328 (Ct. App. 2009). A party that is seeking a modification or termination of alimony must show by the preponderance of the evidence that an unforeseen change in circumstance has occurred. Id.
When taking into consideration whether the court should modify or terminate alimony obligations, the court may consider:
- the duration of the marriage;
- the physical and emotional health of the parties;
- educational background of the parties;
- employment history and earnings potential of the parties;
- standard of living established during the marriage;
- current and reasonably anticipated earnings of the parties;
- current and reasonably anticipated expenses and needs of the parties;
- marital and nonmarital properties of the parties;
- custody of children;
- marital misconduct or fault;
- tax consequences;
- and prior support obligations. Id.
Butler v. Butler
In this case, the husband and wife married in 1970 and divorced in 1996. They had two children. They entered into an agreement for the husband to pay the wife $7,500 a month. After the wife’s assets had changed as a result of the inheritance from the marital estate and the assets she inherited from her father, the court reduced the husbands alimony payment to $5,000 in 2006. The husband then filed a motion for reconsideration in order to further reduce or terminate his alimony obligations. Id.
The court held that the wife’s circumstances were not substantial or material enough to justify modification or termination of the alimony obligation. Id. In addition, the court held that the change in circumstances must be unanticipated. Id. Therefore, the husbands alimony obligation remained at $5,000.
Penny v. Green
In this case, the husband and wife divorced in 1998. The family court judge adopted the parties’ settlement agreement and ordered Husband to pay $2,750 per month in alimony until May 2002, with incremental decreases after that date. Husband was also ordered to pay $1,500 per month in child support until May 2002, with the amount decreasing to $1,000 per month after that date. Penny v. Green, 357 S.C. 583 (Ct. App. 2004).
In 1999, the wife moved to Atlanta with their children. The husband left his medical practice in Columbia and moved to Atlanta in 2000 to be closer with the children and his new wife’s children also lived in the area. The husband filed an action to reduce his alimony obligations because he claimed his salary was $140,000 when in Columbia and his minimum salary in Atlanta was $100,000 based on a three day work week. Id. The family court reduced his alimony obligation when they found out his actual salary was $165,226 and found that this income had decreased substantially with his minimum salary in Atlanta being $100,000.
The court of appeals reversed, stating that, “a party cannot misrepresent income and expenses on a financial declaration for purposes of having an agreement approved and then refute the accuracy of the document in a subsequent modification action.” Id. The court also considered his present income in Atlanta was correct in imputing $120,000 because he was only working three days a week and had the opportunity to increase his salary more than $100,000. Id. The court found that this reduction in salary did not affect his ability to pay his alimony obligation. Id.
Sharps v. Sharps
In this case, the couple divorced in 1984, awarding the wife custody of their two children, $400 a month in child support, and allowing the wife to pursue alimony after a 30 month period. After the 30 month period, the wife sought alimony and was awarded $100 a month. By 1996, the children reached the age of majority and the husband was no longer required to pay child support. The woman filed a petition to increase the amount of alimony she was receiving claiming a substantial change in circumstances due to the husband no longer having to pay child support. Sharps v. Sharps, 342 S.C. 71 (2000).
The Supreme Court held that, “changes in circumstances within the contemplation of the parties at the time the decree was entered do not provide a basis for modifying an alimony allowance.” Id. The court goes on to state, “court hearing an application for a change in alimony should look not only to see if the substantial change was contemplated by the parties, but most importantly whether the amount of alimony in the original decree reflects the expectation of that future occurrence.” Id. This ruling does not in anyway affect a party’s ability to financially obligate themselves for the payment of expenses to be incurred in the future. For example, the court writes, “even when a child is very young, a parent may contractually obligate himself or herself to pay educational expenses of the child beyond the age of majority.” Id.
Because a court cannot always know what conditions will exist in the future, it would be arbitrary to automatically increase alimony or child support in the far distant future based on the happening of anticipated events. Therefore, the court essentially is saying that an increase in alimony based on far future events cannot be too speculative.
Alimony has long been a way of making sure both parties maintain a similar standard of living as they enjoyed during marriage. It can be a complicated subject, so consult with a family attorney to help determine if you are entitled to alimony. If you need help, please contact our office. Learn more about about Jennifer Shafer.