Clients often ask our Charleston divorce lawyers some common questions about alimony in South Carolina. In this article, we will explain alimony, the types of alimony in South Carolina, how the family court calculates alimony, whether alimony can be changed (such as when you retire), and much more. In other words, we’ve compiled a list of answers to many frequently asked questions about alimony to save you time and money before you meet with a divorce attorney.
What is Alimony in South Carolina?
Alimony in South Carolina is financial support that one spouse pays the other if a family court judge decides the receiving spouse is entitled to and needs monetary assistance. S.C. Code Section 20-3-120 provides that “[in] every divorce action from the bonds of matrimony, either party may, in his or her complaint or answer or by petition, pray for the allowance to him or her of alimony and suit money and for the allowance of such alimony and suit money pendent lite. The court shall allow a reasonable sum if such a claim appears well-founded.” S.C. Code Section 20-3-130 states that in a South Carolina divorce, “the court may grant alimony or separate maintenance and support in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of the case may be just, [temporarily], and permanently.”
Alimony is 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. In other words, you may be entitled to alimony if you can show the family court that you are financially dependent on your spouse and, without alimony, you cannot sustain your way of life. As a side note, South Carolina law provides that alimony should not be a disincentive to find work. However, if your skills are limited or you don’t have the training or education to earn a reasonable income, you may be entitled to alimony in your divorce.
What are the Types of Alimony in South Carolina?
There are five (5) types of alimony in South Carolina: permanent, rehabilitative, reimbursement, lump sum, and seperate maintenance and support:
1. Permanent (Periodic) Alimony in South Carolina
Permanent alimony is the preferred type of alimony in family court. Permanent alimony continues until the death of the payor, the death of the recipient, remarriage of the receipient, or cohabitation by the recepient for ninety (90) days or more with a romantic partner. 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.
2. Rehabilitative Alimony in South Carolina
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 to become self-supporting. Rehabilitative alimony also might be given to a parent staying home with young children until 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. 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.
3. Reimbursement Alimony in South Carolina
Reimbursement alimony, as the name implies, is designed to reimburse one spouse for expenses incurred by the other. If, for example, one spouse helped put the other spouse through college or a training program and the couple divorced soon after the training program was 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 a 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 completes 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 awarded 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 provide the supporting spouse a substantial majority of marital property in compensation. But in many cases where one spouse has just completed a training program, the couple has not accumulated many marital assets. So, reimbursement alimony is given as an alternative. Reimbursement alimony can be paid over a period of time.
4. Lump-Sum Alimony in South Carolina
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.
5. Seperate Maintenance and Support in South Carolina
Seperate maintenance and support is, essentially, the same as periodic alimony in that it is paid on a recurring basis. The difference is that separate maintenance and support is a form of alimony that is paid even though the parties are not yet divorced, but they are living separately.
How Does the Family Court Calculate Alimony in South Carolina?
Under South Carolina law, there is no formula for calculating how much alimony should be paid. Also, because each marriage is different, no two cases are entirely alike. In other words, awards of alimony in South Carolina can vary from case to case. Instead of using a formula, the family court considers several factors about each party and their marriage to use its discretion in deciding the amount of alimony. The factors the family court uses to calculate alimony in South Carolina include:
- 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 evaluates the parties’ needs and income-earning potential.
- Educational Background – This factor evaluates 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 – This factor is central to the court’s decision on 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 also considers a spouse’s actual earnings. For example, if both spouses are already equally capable of supporting themselves, alimony is unnecessary.
- Current and Reasonably Anticipated Expenses and Needs – When subtracted from the previous factor, the court can better understand the parties’ actual financial situations.
- Marital and Nonmarital Properties – This factor considers each spouse’s individual wealth.
- 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 children or work on a limited basis outside of the home.
- Marital Misconduct or Fault – The court considers whether the misconduct, such as adultery or physical cruelty, affected the parties’ economic circumstances or contributed to the marriage breakdown.
- Tax Consequences – The family court should consider each spouse’s 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, savings, etc. Under current tax law, alimony is not taxable to the receiving spouse and not tax deductible for the spouse paying alimony. For more details and information on the tax implications of alimony, click here to go to the IRS’s website.
- 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 that the court deems important.
Can I Change My Alimony in South Carolina?
Unless an agreement between the parties says otherwise (that alimony is “non-modifiable”), permanent alimony payments can be adjusted upwards or downwards based on a change of circumstances. If the recipient gains employment at a well-paying job or receives significant 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 decline in income. If the drop in the payor’s income 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 of a reduction in alimony.
Can I Loss My Alimony in South Carolina if I Live with My Boyfriend or Girlfriend?
Under our laws, an ex-spouse’s alimony in South Carolina 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 to circumvent the ninety-day requirement.” Proving cohabitation isn’t easy. Often the supported spouse and their lover will maintain separate residences. Even if they spend almost every night together, keeping separate residences proves that the parties aren’t living together.
So far, our appellate courts seem to have little support for terminating alimony in South Carolina 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 spent every Wednesday afternoon through Monday morning at his house and every Monday morning through Wednesday afternoon at her son’s house taking care of her grandchildren. We discuss this issue regarding cohabitation in greater detail in our article which you can read by clicking here.
Can I Reduce or Stop Paying Alimony in South Carolina When I Retire?
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 often differ on whether retirement by a supporting spouse is a sufficient basis to change or reduce alimony payment. 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. South Carolina’s statute has been amended to help address this legal dilemma. Specifically, S.C. Code § 20-3-170 provides that retirement by a supporting spouse is sufficient grounds to warrant a hearing to evaluate whether there has been a change of circumstances to terminate or reduce alimony in South Carolina. The 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. For more details about whether retirement in South Carolina stops alimony, read our article here.
What Happens if I Fail to Pay Alimony in South Carolina?
If you fail to pay court-ordered alimony, the consequences can be very severe. If you fail to pay, the court can issue a “Rule to Show Cause” requiring you to appear in court and explain why you’ve fallen behind on payments. If the court finds that you’ve violated its order regarding alimony, then the court can hold you in contempt which may result in up to one year in jail, a $1,500.00 fine, 300 hours of community service, or a combination of all three penalties. Also, if there is a lawyer representing your spouse, the court may order you to pay the lawyer’s fees. For more information on what happens if you violate a family court order in South Carolina, click here to read our article.
Divorce Lawyers in Charleston, SC for Alimony Claims
If you need a Charleston divorce lawyer to deal with claims for alimony, then the family law attorneys at Futeral & Nelson, LLC can help you in Charleston, North Charleston, Mt. Pleasant, Summerville, Goose Creek, Hanahan, Moncks Corner, James Island, West Ashley, Folly Beach, Sullivan’s Island, Isle of Palms, Awendaw, McClellanville, and the surrounding areas.