Other than custody of and visitation with children, and in some cases even more so, there is no more contentious a topic during family law proceedings than alimony.
In South Carolina, the Family Court provides for both Alimony and Separate Support and Maintenance, the former in cases of divorce, the latter in cases of separation.
Separate Support and Maintenance is support in effect prior to divorce, in the form of payments made by one spouse to the other, generally while the spouses await the one year of continuous separation necessary to satisfy the South Carolina standard for no-fault divorce. Separate Support and Maintenance is paid periodically, terminated upon either the death of or divorce from a spouse, and is able to be modified upon a showing of changed circumstances.
Alimony is post-divorce support, in the form of payments made by one former spouse to another, and is available to either party. It is a support obligation, not a device used to punish one side or the other, and it is best looked at as a continuance of one ex-spouse’s duty to support the other, a duty which grew out of the marital relationship.
There are four basic types of alimony:
- Periodic: The preferred form of alimony. Periodic alimony is based on duration of the marriage, overall financial situation of the parties, and whether either spouse was more at fault. Periodic alimony terminates at the remarriage of the supported spouse, at the death of either spouse, or if the spouses continue to live under the same roof. It may be modified with a showing of a substantial change in circumstances.
- Lump Sum: A fixed amount of alimony, paid all at once or in installments over a limited time. Lump Sum alimony is usually based on special circumstances, such as necessity or agreement of the parties. It terminates at the death of either spouse. As it is a set, fixed amount, once awarded it is not modifiable.
- Rehabilitation: A finite amount of alimony, to be paid all at once or in installments over time, and intended to bring the supported party back up to speed to re-enter the workforce and provide for him or herself. Rehabilitation alimony is generally awarded in special circumstances, and the amount of the award is based upon (a) the time necessary for the supported party to obtain training or skills, (b) the likelihood that retraining will be completed, and (c) the likelihood of success for the supported party in the job market. Rehabilitation alimony terminates at the remarriage of the supported party, the death of either spouse, continued cohabitation, or the completion of the desired educational or training goal. It can be modified by showing unforeseen circumstances which made it more difficult for the supported party to become self-sustaining.
- Reimbursement: A finite amount of money, generally awarded when the Court sees fit to reimburse one party from the future earnings of the other for financial events that occurred during the marriage, such as one spouse’s funding of the other’s education leading to an advanced degree. Like Lump Sum alimony, Reimbursement alimony is a fixed sum and cannot be modified.
Unfortunately, unlike with regard to child support, when matters are largely guided in a formulaic manner by the South Carolina Child Support Guidelines, there is no such method to calculating either Separate Support and Maintenance or Alimony. Instead, the Court generally considers 13 different factors when making an award of either Separate Support and Maintenance or Alimony. Those factors:
- The duration of the marriage, and the ages of the husband and wife at the time of marriage and divorce
- The physical and emotional condition of each party
- The educational background of each party, including any party’s need for additional training necessary to facilitate productive re-entry into the workforce
- The employment history and earning potential of each party
- The standard of living established during marriage
- The current and reasonably anticipated earnings of both parties
- The current and reasonably anticipated expenses and needs of both parties
- The marital and non-marital property and properties of both parties
- Custody of the children, if any
- The marital misconduct or fault of both parties
- The tax consequences for both parties of a support award
- Any support obligation for either party from a previous marriage
- Other factors deemed relevant by the Court.
Effect of Fault on Alimony and Support
Marital misconduct or fault by either party may be considered by the Court when setting the amount for either Alimony or Separate Support and Maintenance. Generally, in order to weigh on the amount of the award, the fault must affect the economic circumstances of the parties, or have contributed to the breakup of the marriage and have happened before either (a) the signing of a written settlement agreement or (b) the entry of a permanent order for Separate Support and Maintenance or the settlement agreement.
With regard to marital infidelity, it is imperative to understand that, in the State of South Carolina, adultery bars the award of alimony. In other words, absent certain and rare circumstances, no alimony may be awarded to a spouse who commits adultery before the signing of or entry into settlement agreements or a Final Order.
In some cases, temporary support may be awarded during the course of proceedings in order to enable the supported spouse to prosecute or defend the divorce action. Should it be later determined that the supported spouse is not entitled to support because of adultery or other reasons, however, the spouse that received the temporary support may be required to reimburse the spouse for any support paid.
In every case, alimony and support are highly fact- and detail-specific. Different types of property can weigh into consideration of any award, as can the individual financial circumstances of each party. It is highly recommended that you discuss this matter with an experienced family law practitioner. Here at The LaMantia Law Firm, we understand, and we are here to help.