Fair Alimony & Spousal Support Law

Alimony is a substitute for the support which a spouse (typically the Wife, but not always) normally receives as a result of the marital relationship. A Family Court Judge may award alimony to place the supported spouse, as nearly as is practical, in the position of support that spouse enjoyed during the marriage. 

If awarded, alimony is typically ordered to be paid permanently in monthly payments. This is called permanent periodic alimony. Sometimes it is awarded as a lump sum (lump-sum alimony). It may also be awarded as temporary support (for a limited period of time), or rehabilitative alimony (until a spouse can support themselves). 

Alimony is a sum of money that one spouse is ordered to pay for the support of the other spouse in a divorce case. Remember what your mother told you when you asked, “Why?” She said, “Because I told you so!” Alimony exists because it is the law in South Carolina. Alimony may be ordered by the judge because the Family Court sees fit to award it. History books tell us that alimony was founded on the natural and legal duty of one spouse (usually the Husband) to support the other spouse (Usually the Wife). Alimony has been called “a substitute for the statutory right to marital support.” 

The alimony laws of South Carolina have been around for a long, long time and have been modified over the years. Alimony was originally a remedy of the English courts developed at a time when complete divorce was almost impossible, and gender roles in the marriage were rigid and unquestioned. The Common Law of England stated that the husband had a legal and customary duty to support his wife. This duty continued after divorce because there was no “divorce” in the modern sense, but only legal separation. When judicial divorce became available in the 1700’s, alimony remained a “legal remedy” even though its initial justification - the duty of the husband to support his wife - no longer applied. At that time, the courts were concerned that if a husband did not pay alimony, a divorced wife might otherwise “be turned out destitute on the streets or led into temptation.” 

Even though in modern times many traditional gender roles have been rejected by society, the financial dependency of wives on their husbands has continued in many marriages. In 1990, South Carolina put into written law an alimony statute which set out the rules that judges had already been following for hundreds of years. Judges in South Carolina must follow the alimony statute when awarding alimony. The law does not provide “all the answers.” Many “traditional” views still permeate the Family Court when the issue of alimony has to be decided by the judge. 

“Why does Alimony exist?” One way to answer this question is to say, “Alimony is designed to

compensate a spouse for faithful service.” Many judges believe that a “faithful” spouse is entitled to the “benefit of the bargain.” Many judges believe that a spouse who gives up other marital prospects, who gives up or detrimentally alters career plans, who takes primary responsibility for raising the parties* children, who is faithful, and who does not cause the breakup of the marriage should not be left without support from the other spouse, even if the other spouse is also without fault. 

No. Alimony cannot be awarded after you are divorced. You must ask for alimony when you file for divorce or when you file for separation. After the divorce is final, it is too late to ask for alimony. Alimony must be requested when filing for Separation, even if a divorce is not requested. If a final separation order (commonly referred to as a “Legal Separation”) is signed by the Family Court Judge, alimony must be addressed, or the right to request alimony is lost forever. 

Yes. There are different types of alimony in South Carolina. 

Permanent Periodic Alimony. This is the type of alimony that is most likely to be awarded by the Family Court in South Carolina. Special circumstances must exist in order for the Family Court to award any type of alimony other than periodic alimony. If, for example, you are the wife and the court awards you “permanent periodic alimony” in the amount of $1,000.00 per month, then your husband will be under a court order to pay you $1,000.00 per month until: (1) you die; or (2) he dies; or (3) you re-marry. Then the alimony will stop. Recently, the law has been changed so that alimony will also stop if the receiving spouse lives with someone in a romantic relationship, even if the receiving spouse does not re-marry. 

Family Court, unfortunately, is not very consistent in awarding alimony, so it is very difficult to predict if your case is an “AlimonyCase.” However, the three most significant factors that enter into the Family Court Judge’s decision regarding alimony are: (1) the duration of the marriage, (2) the overall financial situation of the parties, especially the ability of the supporting spouse to pay, and (3) whether either spouse was more at fault than the other. If the marriage was a long one, one spouse has a very good career, the other has limited career opportunities, and the party with the higher earning ability is at fault, periodic alimony will almost always be awarded. On the other hand, if the marriage was brief, the parties have relatively equal earning abilities, and neither party is more at fault than the other, no alimony should be awarded. The results in other types of cases are more difficult to predict, but almost all cases seem to turn on one or more of the three factors listed above. 

Permanent periodic alimony, under some circumstances can be modified up or modified down, and in some cases, even terminated. A full interview with a qualified Family Court Attorney is necessary to determine if you case can be modified or terminated. 

Lump Sum Alimony. This form of alimony is rarely awarded by the judge. It is usually awarded when there is great uncertainty as to whether the paying spouse will continue to make regular

payments over time. There are also other factors that go into the Court’s decision to award this type of alimony. Many times “Lump Sum Alimony” is agreed to by the parties to avoid an uncertain result by the judge. 

Rehabilitative Alimony. Rehabilitative alimony is also very rarely awarded by the Family Court. When it is awarded, it is paid for a period of time, usually to allow the supported spouse “to get back on her feet.” The purpose of this form of support may includes circumstances where the court finds it appropriate to provide for the rehabilitation of the supported spouse. When rehabilitative alimony is awarded, the Family Court will usually put a “termination” date in the order, such as the completion of job training or education and the like. The court will also require rehabilitative efforts by the supported spouse. The factors considered by the court in awarding rehabilitative alimony include: the duration of the marriage; the age, health, and education of the supported spouse; financial resources of the parties; the parties* accustomed standard of living; the ability of the supporting spouse to meet his/her needs while meeting needs of supported spouse; the time necessary for the supported spouse to obtain job training or skills; the likelihood that the supported spouse will successfully complete retraining; and the supported spouse*s likelihood of success in the job market. This type of alimony can be agreed to by the parties. 

Reimbursement Alimony. This type of alimony can be used to compensate one spouse for contributions to the professional degree of the other. In other words, if a wife works to help put her husband through medical school, the Family Court can order that the husband “reimburse” his wife.

Separate Support and Maintenance. This is the term used by the court to describe alimony that is paid before the parties are divorced. “Separate support and maintenance” is essentially the same thing as “alimony.” 

The amount of alimony you may be ordered to pay (if you have to pay it at all), and the amount of alimony you will receive (if you receive any at all) is determined by the Family Court Judge. There is no “formula” required by law used by the judges. There is no “alimony chart” or “alimony table” that the judge looks at. The law says that the entitlement to alimony and the amount of alimony are matters that rest solely in the discretion of the judge. 

The law gives the judge almost unbridled discretion when considering how much alimony to award. However, there are certain factors that the judge must consider while contemplating their decision. 

No alimony for a spouse who commits adultery. The law in South Carolina states that no alimony may be awarded to a spouse who commits adultery before the (1) the formal signing of a written property or marital settlement agreement, or (2) entry of a permanent order awarding support or approving an agreement between the parties. This is a hard and fast rule, and there are no exceptions!

The law lists at least thirteen factors that the judge must consider in awarding alimony. Each of the factors must be individually considered by the judge. 

The duration of the marriage. If the marriage was a long one, one spouse has a better career opportunity than the other, and the party with the higher earning ability is at fault, periodic alimony will almost always be awarded. On the other hand, if the marriage was brief, the parties have relatively equal earning abilities, and neither party was more at fault than the other, no alimony should be awarded. Along with the duration of the marriage, the judge will consider the age and health of the parties, their respective earning capacity, their individual wealth, the amount each contributed to the accumulation of marital property and the conduct of the parties. An older spouse is more likely to receive alimony than a younger spouse. A wealthier spouse is less likely to receive alimony. A spouse that is “more at fault” for the breakup of the marriage is more likely to have to pay alimony, if the other factors favor the spouse receiving it. 

Physical and emotional condition. The law requires the judge to consider and give appropriate weight to “the physical and emotional condition of each spouse.” A spouse with physical and/or emotional health issues is more likely to receive alimony. 

Educational background. The law also states that in making an award of alimony, the Family Court must consider and give appropriate weight to “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 importance of this factor, like health, is to aid the court in evaluating the parties* relative earning capacities. This is also an important factor if one spouse is seeking rehabilitative alimony. 

Employment history and earning potential. The judge must also consider and give appropriate weight to “the employment history and earning potential of each spouse.” A spouse who has been working for a long time in a career field with the potential of earning a substantial amount of money is more likely to pay alimony to a spouse who never completed high school and has been out of the job market for the entire marriage. 

Standard of living during the marriage. The court must consider and give appropriate weight to “the standard of living established during the marriage.” It is difficult to explain exactly what this means, but, generally, a spouse that enjoyed a high standard of living will not be “tossed into the street” if the other spouse can afford to pay alimony. 

Earnings. The Family Court must consider and give appropriate weight to “the current and reasonably anticipated earnings of both spouses” in making an award of alimony. This factor and others related to the assets and earning capacities of the parties are likely to be an important aspect of the judge’s decision-making process in deciding whether or not to award alimony. If both parties are already equally capable of supporting themselves, there is no need for alimony. 

Expenses and needs. The judge must consider and give appropriate weight to “the current and reasonably anticipated expenses and needs of both spouses.” For example, the family court may award less alimony to a mother when the father is solely responsible for a child*s college expenses.

Marital and non-marital properties. The court must consider and give appropriate weight to “the marital and non-marital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action.” The Family Court judge has to consider how the property accumulated during the marriage was divided before an award of alimony can be made. 

Custody of the children. In making an award of alimony, the judge must consider and give appropriate weight to “custody of the children.” Alimony may be awarded above and beyond child support, 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. The judge is also required to consider and give appropriate weight to the marital misconduct or fault of either or both parties. The judge has to decide whether or not the misconduct affects or has affected the economic circumstances of the parties, or whether it contributed to the breakup of the marriage. This is the one factor that may seem to be the most unfair, but, regardless of whether or not it is fair, it is the law in South Carolina. Family Court judges recognize that when a marriage fails, both spouses are usually somewhat at fault in causing the deterioration of the marital relationship. However, a spouse may be denied support if he or she engages in substantial misconduct that materially contributes to the failure of the marriage, unless the other spouse is equally at fault. Adultery is the only misconduct that absolutely bars alimony. 

Tax consequences. The Family Court must also consider and give appropriate weight to the tax consequences of each party as a result of the particular type and amount of alimony awarded. 

Other support obligations. In making an award of alimony, the judge must consider and give appropriate weight to “the existence and extent of any support obligation from a prior marriage or for any other reason of either party.” In other words, the court has to consider if a spouse is already paying child support or alimony from a previous marriage. Even though the court is supposed to consider this factor, it is very common and routine for a spouse to be ordered to pay alimony, even though he is already paying alimony to a former spouse. 

Other relevant factors. This is a “catch-all” provision. The judge must consider and give appropriate weight to “such other factors the court considers relevant.” 

If a valid court order exists, a person who is obligated to pay alimony can be held in contempt of court for not paying the required amount on time. The Family Court has general authority to hear and decide cases or proceedings “against persons charged with failure to obey an order of the court made pursuant to authority conferred by law.” If alimony is not paid, the court can put the offender in prison for up to one year. 

** If you have questions about alimony, give me a call now.