One of the most common questions I get when I first meet with a person considering divorce or separation concerns alimony. It is natural to wonder early on in a divorce process what kind of alimony obligation there might be. However, it is one of the more complicated aspects of Family Law, which makes this common question difficult to answer. In this article I give an overview of the topic of alimony and some examples of why negotiation of alimony issues is serious business.
In South Carolina, the Code of Laws requires the Courts to consider thirteen separate factors in choosing to award alimony, how much to award and the length of the obligation. The law does not address any of these issues specifically. Factors to be considered include the length of the marriage, the disparity of earnings between the parties, future earnings potential of each party, the education levels attained by the parties, mental or physical health issues and marital misconduct or “fault". The statute is gender neutral so, in South Carolina, women and men are equally eligible to participate in paying or receiving alimony.
South Carolina is Liberal on Alimony
South Carolina is known as a “liberal" alimony state, meaning that it is one of a few states where a person can be obligated to pay a generous amount of alimony on a permanent basis. The law reflects the notion that a person has a moral, ethical and legal responsibility to support their spouse. A South Carolina Family Court Judge will generally not be reversed on appeal for giving too much alimony for too long, but he or she will more likely be reversed for awarding alimony that is insufficient in amount and duration.
How Much for How Long?
In South Carolina, alimony can be awarded in different ways depending on the specific circumstances of the parties. Alimony awards can be permanent/periodic, lump sum or rehabilitative, taxable and non-taxable in nature. There is no definitive mathematical formula used to determine the amount of an alimony award. Several computer programs are helpful in analyzing alimony obligations (I rely on one myself), but none are determinative. One way to get a general understanding of an alimony obligation is to determine the monthly living expenses for the spouse with the smaller income. If the after-tax income of that spouse leaves them short of their reasonable monthly living expenses, then a Court will likely seek to make up the difference or even balance the incomes with funds from the spouse with the greater income.
Similarly, the law does not specify criteria to determine the duration of an alimony obligation. A marriage of 12 to 15 years very often results in a permanent alimony obligation in South Carolina, but not necessarily (providing, of course, that an obligation exists in the first place). Legal authority exists in South Carolina for a permanent alimony award resulting from a marriage of only one year! Permanent alimony can only end upon the death of either spouse or upon the re-marriage or co-habitation of the supported spouse.
Can it be Modified?
Alimony is always modifiable if it is awarded on a permanent basis, but only upon a showing that there exists a substantial change in circumstances. Our courts have ruled that a 20% increase in income by former husband did not support the former wife's request for increase in her monthly award. An issue that is becoming increasingly common with the aging of baby boomers is the extension of alimony obligations into retirement years. It is important to understand that retirement will not necessarily suffice as a change in circumstance to warrant a decrease in alimony. Each request for modification of alimony will turn on the facts specific to the parties involved.
Can it be Avoided?
The only absolute prohibition to an alimony award is if the spouse requesting alimony has committed adultery. Other forms of fault, such as physical cruelty, habitual alcoholism and abandonment will not necessarily bar alimony, but may effect the amount or duration of the award, up or down, depending on where the fault is placed.
The Bottom Line
At the risk of sounding self-serving, my advice is to always negotiate alimony with the assistance of a qualified family law attorney. I have worked with several clients who previously paid a huge price as a result of negotiating on their own or going along with advice they did not understand. The financial exposure can be overwhelming. Given the complicated nature of most couples’ financial lives, it is simply too risky to negotiate alimony without sound legal advice.
Guy Vitetta, Attorney at Law, Charleston, S. C.
171 Church Street, Suite 160 Charleston, South Carolina 29401
(843) 577-0460 FAX