There are some common questions that clients ask Charleston divorce lawyers about alimony. Here are some answers about alimony that may save you time and money before you meet with a family law attorney in Charleston:
Will the Family Court Award Alimony?
There is no formula for calculating whether someone is entitled to alimony. Instead, the Charleston family court will consider various factors about each party and their marriage:
- The Marriage’s Duration and the Parties’ Ages – Alimony is more likely to be awarded in longer marriages than in brief ones.
- Physical and Emotional Conditions – This factor is used to evaluate the parties’ needs and their income earning potential.
- Educational Background – This factor is used to evaluate a spouse’s income earning potential. The court also may consider the need for additional training or education to achieve that spouse’s income potential.
- Employment History and Earning Potential – Obviously, this factor is central to the court’s decision whether to award alimony and, if so, in what amount.
- Standard of Living During the Marriage – The higher the standard, the higher the amount of support.
- Current and Reasonably Anticipated Earnings – The family court not only considers earning potential, but it considers a spouse’s actual earnings. For example, if both spouses are already equally capable of supporting themselves, there is no need for alimony.
- Current and Reasonably Anticipated Expenses and Needs – When subtracted from the previous factor, the court can get a better understanding of the parties’ actual financial situations.
- Marital and Nonmarital Properties – This factor takes into account the individual wealth of each spouse.
- Custody of the Children – Some children need greater care than others. So, the court may consider circumstances where the custodial parent should stay home with the chioldren or work on a limited basis outside of the home.
- Maritial Misconduct or Fault – The court considers whether the misconduct affected the parties’ economic circumstances or contributed to the breakdown of the marriage.
- Tax Consequences – Essentially, the family court should consider each spouses’ disposable income which is the amount of personal income an individual has after taxes and government fees, which can be spent on necessities, non-essentials, saved, etc.
- Support Obligation from a Prior Marriage– Whether the spouse is paying or receiving such support.
- Other Relevant Factors – This factor is a “catch-all” that allows the court to consider other factors which the court deems relevant.
How Much Alimony Will the Charleston Family Court Award?
Under South Carolina family law, alimony is considered a substitute for the support a spouse receives while married and is designed to place that spouse, as nearly as practical, in the position of support he or she received during the marriage. However, There is no formula for calculating how much alimony should be paid.
Are There Different Types of Alimony in South Carolina?
There are several types of alimony, each of which is designed to meet particular needs.
- Permanent (Periodic) Alimony – Permanent alimony is the normal preference in family court. Permanent alimony continues indefinitely. The main bases for ceasing payments of permanent alimony are the death of the payor, the death of the recipient, or the remarriage of the recipient. Cohabitation of the recipient with a member of the opposite sex also is a common basis for cessation of permanent alimony. Generally, the cohabitation needs to be of a permanent or near-permanent nature, with the parties who are living together sharing living expenses. A few overnight visits usually do not constitute cohabitation for the purpose of stopping alimony payments.
- Rehabilitative Alimony – Rehabilitative alimony refers to alimony that is given to a spouse so that the spouse may “rehabilitate” herself or himself in the sense of acquiring greater earning power or training in order to become self-supporting. Rehabilitative alimony also might be given to a parent who is staying home with young children until such time as it is considered appropriate for the parent to work outside the home. There is no uniform time at which parents automatically are expected to work outside the home, but when the youngest child is in school full-time is a common time for the parent to resume work. (Of course, in many families–intact and divorced–the parents work outside the home when the children are pre-schoolers. And in some families, one parent stays home as long as the children live at home.) Rehabilitative alimony is usually for a fixed period of time. The court (or the parties by agreement) may include a provision that the alimony is subject to review at the end of that period.
- Reimbursement Alimony – Reimbursement alimony, as the name implies, is designed to reimburse one spouse for expenses occurred by the other. If, for example, one spouse helped put the other spouse through college or a training program and the couple divorces soon after the training program is complete, the spouse who supported the family during that period might be able to obtain reimbursement alimony as a payback for the resources spent. A classic example is the nurse who marries a medical student and supports the family while the medical student finishes medical school (and perhaps a residency program). If the couple divorces soon after the medical student completed training, the nurse probably would be entitled to reimbursement alimony to compensate for the resources used during the training program. In this case, reimbursement alimony is not necessarily being given because the nurse needs funds for day-to-day support (since the nurse would seem to be self-supporting). Instead, the alimony is given as an equitable payback for supporting the spouse through medical school. Alternatively, a court could choose to give the supporting spouse a substantial majority of marital property in compensation. But in many cases which one spouse has just completed a training program, the couple has not accumulated a large amount of marital assets. So, reimbursement alimony is given as an alternative. Reimbursement alimony can be paid over a period of time.
- Lump-Sum Alimony – Lump-sum alimony or alimony in gross refers to alimony that is a fixed payment that generally will be made regardless of circumstances that would be a basis for termination of other types of alimony. For example, lump-sum alimony or alimony in gross normally would be paid even if the recipient remarries. Depending on the wording of the agreement or order, payments also could be made to the estate of the recipient in the event the recipient dies. This type of alimony usually is in lieu of a property settlement.
Can An Award of Alimony be Changed by the Charleston Family Court?
Unless an agreement between the parties says otherwise, payments of permanent alimony can be adjusted upwards or downwards based on a change of circumstances. If the recipient gains employment at a well-paying job or receives a significant amount of money from another source, that might be a basis for reducing alimony payments. If the recipient incurs unexpected medical expenses (that are not covered by insurance), that might be a basis for increasing alimony payments, if the spouse paying alimony has the ability to pay more. A drop in income by the payor, including at retirement, can be a basis for reducing alimony. Courts may examine the reason for a drop in income. If the drop in income of the payor is in good faith or not through the fault of the payor, the court is more likely to approve a reduction in alimony. If the drop in income seems to have been engineered by the payor to create a basis for reducing alimony, the court is more likely to disapprove a reduction in alimony.
Terminating Alimony for Co-Habitation
Under South Carolina family law, an ex-spouse’s alimony may be terminated when that person “resides with another person in a romantic relationship for a period of ninety or more consecutive days.” This circumstance is known as “continued cohabitation.” Continued cohabitation also exists “if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.” Proving cohabitation isn’t easy. Oftentimes the supported spouse and their lover will maintain separate residences. Even if they spend almost every night together, keeping separate residences seems to be proof that the parties aren’t living together.
So far, there seems to be little support by South Carolina’s appellate courts for terminating alimony based on cohabitation. However, in the August 2013 case of McKinney v. Pedery, the South Carolina Court of Appeals upheld the family court’s decision to terminate an ex-husband’s alimony because he was engaged in “continued cohabitation” with his girlfriend. Specifically, for seven months, the ex-husband’s girlfriend was spending every Wednesday afternoon through Monday morning at his house but spending every Monday morning through Wednesday afternoon at her son’s house taking care of her grandchildren.
Reducing or Terminating Alimony After Retirement
Supporting spouses who want to retire from employment run the risk of still paying alimony that they can no longer afford after retirement. Charleston family court lawyers and judges oftentimes differ on whether retirement by a supporting spouse is a sufficient basis to change or reduce the payment of alimony. In other words, take the same case and place it before a dozen different judges, and the spouse will not get the same legal outcome twelve times. Now, South Carolina’s statute has been amended to help address this legal dilemma. Specifically, S.C. Code § 20-3-170 was amended effective June 18, 2012 to provide that retirement by a supporting spouse is sufficient grounds to warrant a hearing to evaluate whether there has been a change of circumstances for alimony.
Factors Regarding Retirement and Alimony in South Carolina
The amended statute provides that the family court must consider the following factors:
- whether retirement was contemplated when alimony was awarded;
- the supporting spouse’s age;
- the supporting spouse’s health;
- whether the retirement is mandatory or voluntary;
- whether retirement would result in a decrease in the supporting spouse’s income; and
- any other factors the court sees fit.
Despite these changes to the law, the family court still has a great deal of discretion on this issue. Essentially, such discretion means different judges will still take different positions on a request to reduce or eliminate a retiree’s alimony payments and the outcomes will still lack uniformity.