Alimony

Question 1

What is the first factor to be considered by the court in awarding alimony?

Answer 1

1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;

Question 2

What is the second factor to be considered by the court in awarding alimony?

Answer 2

2) the physical and emotional condition of each spouse;

Question 3

What is the third factor to be considered by the court in awarding alimony?

Answer 3

3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential;

Question 4

What is the fourth factor to be considered by the court in awarding alimony?

Answer 4

4) the employment history and earning potential of each spouse;

Question 5

What is the fifth factor to be considered by the court in awarding alimony?

Answer 5

5) the standard of living established during the marriage;

Question 6

What is the sixth factor to be considered by the court in awarding alimony?

Answer 6

6) the current and reasonably anticipated earnings of both spouses;

Question 7

What is the seventh factor to be considered by the court in awarding alimony?

Answer 7

7) the current and reasonably anticipated expenses and needs of both spouses;

Question 8

What is the eighth factor to be considered by the court in awarding alimony?

Answer 8

8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;

Question 9

What is the ninth factor to be considered by the court in awarding alimony?

Answer 9

9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;

Question 10

What is the tenth factor to be considered by the court in awarding alimony?

Answer 10

10) marital misconduct or fault of either or both parties, whether or not as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) 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;

Question 11

What is the eleventh factor to be considered by the court in awarding alimony?

Answer 11

11) the tax consequences to each party as a result of the particular form of support awarded;

Question 12

What is the twelfth factor to be considered by the court in awarding alimony?

Answer 12

12) the existence and extent of any support obligation from a prior marriage for any other reason of either party;

Question 13

What is the thirteenth and final factor to be considered by the court in awarding alimony?

Answer 13

13) such other factors the court considers relevant.

Question 14

What are the four (4) types of alimony awards?

Answer 14

Per SC Code § 20-3-130:

1) Periodic
2) Rehabilitative
3) Lump Sum
4) Reimbursement

Question 15

What is Permanent Periodic Alimony?

Answer 15

Per SC Code § 20-3-130(B)(1):
- It terminates on remarriage or continued cohabitation of supported spouse (90 or more consecutive days);
- It terminates on death of either spouse (unless secured as allowed in subsection (D)); AND
- It is modifiable or terminable based on (substantial) change in circumstances.
Note, this is the preferred type of alimony by family courts in SC.

Question 16

What is Lump Sum Alimony?

Answer 16

Per S.C. Code § 20-3-130 (B)(2)

• It is a FINITE SUM, whether it is in one payment or in multiple installment payments periodically over time;
• It terminates on death of supported spouse only;
• It is nonmodifiable;
• It is not the preferred method of alimony in SC, therefore it can only be considered in exceptional circumstances where it appears that the payor spouse may not make regular alimony payments. Its principle justification is the unreliability of the supporting spouse or by agreement of the parties (see Richardson v. Richardson, 309 S.C. 31 419 S.E.2d 806 (Ct. App. 1992)).

Question 17

What is Rehabilitative Alimony?

Answer 17

Per S.C. Code § 20-3-130 (B)(3)

• It is also a FINITE SUM paid in one payment of in multiple installment payments periodically over time;
• It terminates on remarriage or continued cohabitation of the supported spouse;
• It terminates on the death of either spouse (unless secured as allowed in subsection (D)); and
• It is modifiable or terminable, but only when based upon unforeseen events frustrating the efforts of the supported spouse to become self-supporting or ability of the supporting spouse to pay support. (see Johnson v. Johnson for a list of factors to consider when awarding rehabilitative alimony established pre-statute).

Question 18

What is Reimbursement Alimony?

Answer 18

Per S.C. Code § 20-3-130 (B)(4):
- It is a FINITE SUM paid in one payment or in multiple installment payments periodically over time;
- It terminates on remarriage of supported spouse;
- It terminates on death of either spouse (unless secured as allowed by subsection (D)); and
- It is NOT modifiable based on change of circumstances.
This is an important tool, in light of the fact that professional degrees are not subject to equitable apportionment.

Question 19

What is the 90 Day Rule pertaining to the potential termination of alimony?

Answer 19

Per S.C. Code § 20-3-130(A):
“Continued Cohabitation” is defined as when “…the supported spouse resides with another person in a romantic relationship for a period of ninety (90) or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety (90) days and the two periodically separate in order to circumvent the ninety-day requirement. “

Question 20

Why would the court award alimony in a domestic relations case?

Answer 20

• As Compensation: for loss in standard of living, disparity in earning capacity, loss of earnings or earning capacity due to caring for children or others, loss of investment made into other spouse’s earning capacity, disparity in ability to recover premarital standard of living due to the contribution of non-marital assets to the marriage or of foregone opportunities.
• As Punishment for marital misconduct.

Question 21

Can alimony be barred in certain cases?

Answer 21

Yes. Per SC Code 20-3-130(A), “No alimony may be awarded a spouse who commits adultery before the earliest of these two (2) 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.”

Question 22

Before Alimony provisions were set by statute in SC, what case set forth ten (10) of the (13) considerations of the court and what are some of the facts of that case?

Answer 22

Johnson v. Johnson, 296 S.C. 289, 372 S.E.2d 107 (Ct. App. 1988).
Facts: H & W signed a pre-nup. After only 14 months of marriage, W filed for divorce on grounds of physical cruelty. H sought enforcement of the pre-nup. W counterclaimed for a divorce, alimony, and other relief. The Family Court held that the pre-nup was invalid and awarded W rehabilitative alimony of $300 per month for a year. W appealed, claiming that the alimony award was inadequate to maintain the standard of living she had become accustomed to during the marriage and that there was no evidence showing that she would be able to support herself after the rehabilitative alimony period.

Holding: The Family Court erred in awarding W rehabilitative alimony, rather than permanent, periodic alimony, despite fact that marriage lasted only 14 months because Husband was responsible for short duration of marriage, rehabilitative alimony would have restored Wife to standard of living she had before marriage, rather than standard of living she enjoyed during marriage, Husband’s financial resources and earning capacity far exceeded Wife’s, and Husband had financial ability to meet his own needs while supporting wife at standard of living she enjoyed during marriage.

The Court said:
“Alimony may be awarded as periodic payments or in a lump sum. It may also be awarded as permanent support or as temporary, rehabilitative support. The power to award lump sum alimony should be exercised only where special circumstances require it….Similarly, rehabilitative alimony may be awarded only upon a showing of special circumstances justifying a departure from the normal preference for permanent, periodic support.”

The factors to be considered in awarding rehabilitative alimony include: (1) the duration of the marriage: (2) the age, health, and education of the supported spouse; (3) the financial resources of the parties; (4) the parties’ accustomed standard of living; (5) the ability of the supporting spouse to meet his needs while meeting those of the supported spouse; (6) the time necessary for the supported spouse to acquire job training or skills; (7) the likelihood that the supported spouse will successfully complete retraining; and (8) the supported spouse’s likelihood of success in the job market. There must be evidence demonstrating the self sufficiency of the supported spouse at the expiration of the ordered payments in order for rehabilitative alimony to be granted. Citing Toler v. Toler, 356 S.E.2d 429 (Ct. App. 1987).

Question 23

If you fail to seek alimony in a divorce or a separate support and maintenance action, will you still be able to seek it in the future?

Answer 23

NO. Failure to seek alimony in a divorce or separate support and maintenance case will waive the right to seek it in the future.
HOWEVER, the issue of alimony may be reserved for future determination by the Family Court.

Question 24

What must you show in order to reserve the issue of alimony?

Answer 24

In order to reserve alimony, absent an agreement, you must show “…an identifiable set of circumstances that is likely to generate a need for alimony in the reasonably near future.”
Donahue v. Donahue. 299 S.C. 353, 384 S.E.2d 741 (1989)

Question 25

What is required in order to seek Modification of Alimony Orders?

Answer 25

See SC Code 20-3-170(A)

• First, make sure it is a modifiable type of alimony; lump sum and reimbursement alimony are NOT modifiable.
• There must be a showing of “changed circumstances”
• • These changed circumstances must be SUBSTANTIAL or MATERIAL and
• • such circumstances were not contemplated at the time the alimony award was made

Question 26

What are some examples of “changed circumstances” that the court found to be substantial enough to warrant a modification of alimony?

Answer 26

• An unanticipated Inheritance
• The disappearance of a supported spouse
• The deteriorating health of one spouse that impacted their financial circumstances
• The termination of child support [not the best reason, but it apparently worked for someone…]
• Increased Need (an issue of reasonableness)
• Decreased ability to pay

Question 27

What are some examples of “changed circumstances that the court found NOT to be substantial enough to warrant a modification of alimony?

Answer 27

• An anticipated increase in income
• Any changes that were in the contemplation of the parties at the time of the decree awarding the alimony
• Any changes in the spouse’s financial status due to the division of marital property
• An appreciation in the value of real estate
• A child’s graduation from college where there is no evidence that the supported spouse’s expenses will decrease

Question 28

Can parties agree to make alimony nonmodifiable?

Answer 28

Yes. See Degenhart v. Burris, 360 S.C. 497, 602 S.E.2d 96 (Ct. App. 2004)

Question 29

Can the retirement of one spouse lead to the modification of alimony?

Answer 29

SC Code 20-3-170(B)
Retirement by the supporting spouse is sufficient grounds to warrant a hearing, if so moved by a party, to evaluate whether there has been a change of circumstances for alimony.

Question 30

What six (6) factors must the court consider in an alimony modification action based upon the retirement of the supporting spouse?

Answer 30

(1) Whether retirement was contemplated when alimony was awarded;
(2) The age of the supporting spouse;
(3) The health of the supporting spouse;
(4) Whether the retirement is mandatory or voluntary;
(5) Whether retirement would result in a decrease in the supporting spouse’s income; AND
(6) Any other factors the court sees fit.

Question 31

What action is filed when seeking to enforce an alimony award?

Answer 31

Rule to Show Cause
SC Code 63-3-530(A)(13)
Requirements:
(1) The Contempt must be Willful; AND
(2) The Order must tell the alleged contemnor in definite terms what he must do.
When the contemnor is genuinely unable to pay, then he may not be held in contempt.

Question 32

What law is applicable when the Payor and Payee of an alimony award reside in different states?

Answer 32

The Uniform Interstate Family Support Act (UIFSA) found at SC Code 63-17-2900 et seq.

Question 33

Are Wage Withholding or Garnishment of Wages allowed as a means of recovering alimony in SC?

Answer 33

Yes.
SC Code 63-17-1420(A):
Income is subject to immediate withholding when a support order is issued or modified, without waiting for an arrearage to accumulate.
Exceptions:
(1) one of the parties demonstrates and the court finds that there is good cause not to require immediate income withholding; OR
(2) a written agreement is reached between both parties which provides for an alternative arrangement.
Note: Special rules apply for wage garnishments of Federal Civil Employees and Military Personnel.

Question 34

Is alimony dischargeable in Bankruptcy?

Answer 34

No.

11 U.S.C. 523: Exceptions to Discharge

Question 35

What are the tax consequences of alimony?

Answer 35

Alimony is generally deducted from the Payor’s gross income for federal tax purposes and taxed to the Payee. NOTE: There are very specific qualifications set forth at IRC 71(b) in order for alimony to be proper.

Question 36

What are the six (6) Qualifications of Alimony for tax purposes?

Answer 36

(1) Payments must be received under an Order of Divorce or some other ‘Separation Instrument’ which includes written separation agreements as well as court decrees of support;
(2) Payments must be made in cash or the equivalent; (i.e., not property)
(3) Payments cannot be designated as “not alimony”;
(4) Payments must end at the Payor’s death;
(5) The parties cannot file a joint tax return or be members of the same household; AND
(6) Payments cannot include child support.

Question 37

When dealing with alimony, what is another tax issue that should be considered?

Answer 37

Alimony Recapture; see notes from Federal Income Tax class.

Question 38

What mnemonic is used to recall all of the 13 alimony factors?

Answer 38

DAily Physical Exercise EnhancEs Sexual AppearanCe ANd Prevents Calories Making Tummies Stay Fit.

1) D - duration of marriage + A - ages of parties at time of marriage and divorce;
2) P - physical and emotional condition of each spouse;
3) E - educational background of each spouse, together with need of each spouse for addt’l training or education in order for that spouse to achieve income potential;
4) E - Employment history + E - earning potential of each spouse;
5) S - standard of living established during the marriage;
6) A - anticipated + C - current earnings of both spouses
7) A - anticipated and current expenses + N - needs of both spouses
8) P - properties - The marital and non-marital properties of the parties including those apportioned to him/her in the divorce or separate support and maintenance action;
9) C - custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where employment must be of a limited nature;
10) M - marital misconduct of either or both parties, whether or not a basis of divorce or separate support and maintenance action, if the misconduct has affected the economic circumstances of the parties, or contributed to the break up of the marriage;
11) T - tax consequences to each party as a result of the particular form of support awarded;
12) S - support obligations, the existence of and the extent of such from a prior marriage or for any other reason of either party; AND
13) F - factors, such other factors that the court considers relevant.