Spousal Support & Alimony
During your marriage, it was your spouse who contributed the lion’s share of financial resources to establish and maintain the standard of living that the two of you enjoyed for so long. Now, you and your spouse have separated — what do you do now?
Here in the Palmetto State, 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
Separate Support and Maintenance is support paid and received prior to divorce, generally during the time that the spouses await the one year of continuous separation necessary to satisfy the state of South Carolina’s standard for no-fault divorce. Separate Support and Maintenance is in effect much like periodic alimony, in that it 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 support paid and received after divorce. It comes in the form of payments made by one former spouse to another, and it is available to either party. Alimony 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.
In South Carolina, 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.
When dealing with matters of child support, the courts are largely guided by the formula promulgated by the South Carolina Child Support Guidelines. In matters of alimony and Separate Support and Maintenance, however, there is no such formula. 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 standard of living established during marriage
- The employment history and earning potential of each partyThe 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
When setting the amount for either Alimony or Separate Support and Maintenance, among the issues contemplated by the Court will inevitably be marital misconduct, or fault. To be applicable in the context of an Alimony or Separate Support and Maintenance award, the misconduct or fault must affect the financial circumstances of the parties, or have contributed to the destruction of the marital relationship; if either is the case, it must also 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.
If that fault or misconduct comes in the form of an extramarital affair, it is absolutely, unequivocally imperative to understand that, in the Palmetto State, adultery completely bars the award of alimony. Pursuant to S.C. Code Ann. § 20-3-130(A):
No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) 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.
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. When going through a divorce, therefore, it is always best to avoid dating–or even the perception that you may be dating or romantically involved with another person–until the ink is dry on your divorce decree.
To prove adultery in South Carolina, the party seeking to prove same must show both inclination and opportunity. What does that mean? Well, the standard is nuanced and often fact- and case-specific; call me for a consultation, and we’ll talk.
Temporary Support (Suit Money)
In some cases, highly dependent upon the financial circumstances of the parties involved, temporary support in the form of suit fees, or “suit money,” 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 suit money may be required to reimburse the spouse for any temporary support paid.
You have a sense of it from reading above — in every case, alimony and support are highly fact-, case- 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 Lowcountry Divorce & Family Law, I deal with these issues every day, and am happy to help. Peace of mind is only a phone call away.