Alimony South Carolina
Alimony in South Carolina is a complex subject. The terms spousal support and alimony are used interchangeably in many states. Next, we will discuss the types of support in SC.
South Carolina Alimony laws provide for several different types of alimony:
- Temporary – while a divorce is pending.
- Periodic Sum – A set amount each month.
- Reimbursement – to compensate for the loss of the spouse’s income that is earned because of the supported spouses’ contributions to his or her education or career.
- Rehabilitative – Supports the spouse while additional training or education is obtained that will allow the supported spouse to become self-supporting.
- Lump Sum – In lieu of or in addition to periodic payments.
- Separate Maintenance and Support – for a spouse who is living apart from his or her spouse but not seeking a divorce.
Alimony Factors in South Carolina
South Carolina § 20-3-130 specifies the factors judges must consider when determining whether to award alimony. The law also explains how much alimony or other allowances to award. The judge is given considerable leeway to determine how much weight to give each factor “it finds appropriate to all the following factors:”
Age and Physical Condition:
- How old was each spouse at the time of the marriage?
- How old was each spouse at the time of divorce or separate maintenance action?
- What is the physical condition of each spouse?
- What is the emotional condition of each spouse?
Education and Work History Factors:
- What is the educational background of each spouse?
- What additional training or education does either spouse need in order to achieve that spouse’s income potential?
- What is the employment history of each spouse?
- What is the earning potential of each spouse?
Standard of Living and Earning Potential:
- What standard of living did the couple enjoy during their marriage?
- What are the current earnings of each spouse?
- What are the anticipated earnings of each spouse?
Expenses of the Parties:
- What are the current expenses and needs of each spouse?
- What are the anticipated expenses and needs of each spouse?
Estate of the Parties:
- What are the marital properties of each spouse?
- What are the non-marital properties of each spouse?
- What properties are apportioned to each spouse in the divorce or separate maintenance action?
Custody of the Children:
- Who will have custody of the children?
Is it appropriate for the custodian to seek employment outside the home?
Will circumstances limit the nature of the custodian’s employment?
- Age of children
- Number of children
- Children with special needs
- Was there marital misconduct or fault by either or both parties? (It does not have to be the basis of the divorce.)
- Did the misconduct affect or has it affected the economic circumstance of the parties?
- Did the misconduct contribute to the breakup of the marriage?
Did the misconduct referenced above occur before:
- 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?
- What are the anticipated tax consequences to each party as the result of the support awarded?
Prior Support Obligations:
Is there a support obligation from a prior marriage?
- If yes, what is the extent of that obligation?
Protecting the Support Order
In addition to awarding alimony or separate maintenance and support, the court may take action to ensure that the death, disability or other circumstances do not interfere with the receipt of the award.
Tools to Secure the Award:
- Require the posting of money, property, or bonds.
Require the supporting spouse to carry life or disability insurance giving consideration to:
- The cost of insurance coverage.
- Insurance the couple carried during the marriage.
- Insurability of the supporting spouse.
- The probable economic condition of the supported spouse upon the death of the supporting spouse.
- Any other factors the court may deem relevant.
- The court may order the payment paid directly to the supported spouse or through the Family Court which incurs a service fee.
- The court may require the payment of debts, obligations, and other matters on behalf of the supported spouse.
- The court may elect and determine the intended tax effect of the alimony and separate maintenance and support as provided by the Internal Revenue Code and applicable state tax provisions.
- The Family Court may allocate the right to claim dependency exemptions pursuant to the Internal Revenue Code and corresponding state tax provisions.
- The court may require the execution and delivery of all documents and tax filings to comply with its orders relative to the dependency exemptions.
If the parties agree in writing to make the payment of alimony non-modifiable and not subject to subsequent modification by the court, the court must approve the agreement for it to be enforceable.
Non-Alimony and Support Awards
After considering the financial resources and marital fault of both parties, the court may order one party to pay a reasonable amount to the other for:
- Attorney’s fees
- Investigation fees and costs
- Suit money incurred in maintaining an action for divorce from the bonds of matrimony
- This includes services rendered before and after entry of judgment
Continued cohabitation means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The divorcing couple may agree to a different definition in writing.
If it appears the supported spouse structures an ongoing romantic relationship involving periodic cohabitation with periodic breaks to avoid meeting the definition of the continuous 90-day cohabitation, the court may determine that a continued cohabitation exists.
Child Support and Alimony
South Carolina § 20-3-150 requires the court to establish the amount of child support and alimony as separate amounts. If alimony ceases upon remarriage, it does not affect amounts awarded for support for the children.
Retirement of Supporting Spouse
South Carolina § 20-3-170 provides that modifiable awards of alimony and separate maintenance may be revisited from time-to-time if they were not ordered as non-modifiable and the couple has not agreed, with court approval, to make them non-modifiable.
When the financial circumstances of either spouse changes, either party may apply to the court that ordered the payment of support to request increases or decreases in the award. Both parties will be given an opportunity to be heard and introduce evidence relevant to the issue.
The court shall make such order and judgment as justice and equity shall require considering the changed circumstances and financial ability of the supporting spouse to satisfy justice and equity. The award may increase, decrease, or terminate the initial award.
When the supporting spouse retires, if a hearing is requested, the court will consider the following additional factors:
- Was retirement contemplated when alimony was awarded?
- The age of the supporting spouse.
- The health of the supporting spouse.
- Is the retirement mandatory or voluntary?
- Does retirement decrease the supporting spouse’s income?
- Any other factors the court sees fit to apply to the situation.
South Carolina § 20-3-135 provides that an individual who fraudulently enters a marriage whether by lying when the marriage license is obtained or by failing to obtain a marriage license causing the marriage to be declared void by reason of fraud is not relieved of the duty to require spousal support that would have been awarded if the marriage was not void.
South Carolina Divorce Attorneys
South Carolina alimony laws reinforce the truth in Abraham Lincoln’s statement referring to lawyers who represent themselves, “He who represents himself has a fool for a client.” This is doubly true for individuals who are not trained in the law.
Attempting to navigate the process of obtaining a divorce that may involve payment of alimony in South Carolina is not a job for a layperson.
For example, one woman who separated from her abusive husband was awarded temporary spousal support when she filed for divorce. For a variety of reasons, including his ongoing threats that he would kill himself if she divorced him, she stopped pursuing the divorce. She would have been entitled to separate maintenance and support. Because she did not have an attorney she was unaware of this law. He ceased paying spousal support ordered under a temporary order when half the duration of the marriage had passed. Her husband told her that alimony was never awarded for more than half the duration of the marriage. She was not free to marry again. And she was no longer receiving any support from her estranged husband. Two decades later when he was ready to retire. He realized that she would be entitled to benefits under his retirement plan if they were married when he retired. He sought a divorce.
To obtain the best possible outcome for your divorce, hire a Family Law attorney who is familiar with the nuances in South Carolina laws.