DIVORCE, CUSTODY & FAMILY LAW

Summary

Types of Alimony in South Carolina. There are several types of alimony a court can award. Permanent periodic alimony is the most common concern — the supporting spouse pays a set amount each month until the supported spouse remarries or either party dies. There is technically a provision allowing termination if the supported spouse cohabitates with someone else for 90 continuous days, but this is an extremely stringent standard. If there is even a single night they don't spend under the same roof during that period, the clock resets.

Lump sum alimony is a fixed amount — for example, $50,000 — paid over time in installments. Rehabilitative alimony covers training or education that will help a spouse reenter the workforce. Reimbursement alimony may be ordered when one spouse dissipated marital funds through a failed business venture, gambling, or similar conduct; courts sometimes use this form because alimony obligations survive bankruptcy, whereas equitable division does not receive the same priority.

Key Factors in Calculating Alimony. The most important factor is the length of the marriage. A brief marriage — less than about seven years — will very rarely result in permanent periodic alimony. In my experience, marriages under ten years make a permanent alimony award relatively unlikely, though other circumstances can affect the analysis.

The second most important factor is the disparity in income between the spouses. If both spouses earn roughly the same income, there is generally no legitimate basis for long-term alimony. When there is a significant disparity, courts often use the gap between the spouses' incomes to calculate the amount.

There is a soft ceiling on the amount of permanent alimony. The existing case law — based on the Dickert standard — suggests that courts are unlikely to award more than roughly 23 to 25 percent of the difference in the parties' incomes. This ceiling was developed when alimony was tax-deductible to the payor. Now that the Tax Cuts and Jobs Act has eliminated that deduction for agreements executed after December 31, 2018, that ceiling may drop to 18–20 percent — though there are no published South Carolina appellate opinions confirming this adjustment.

Other important factors include: the health and earning capacity of each spouse (a court can impute income to a spouse who is voluntarily underemployed); the size of the marital estate and each spouse's access to other resources (such as trust funds, inherited property, or retirement accounts); marital fault — adultery is an absolute bar to receiving alimony, and fault in the breakup is considered in determining the amount; and whether the supported spouse sacrificed career opportunities during the marriage to raise children, relocate for the other spouse's job, or work in a family business.

Alimony Modifications. Alimony can be modified based on a change of circumstances. The most common grounds include: the paying spouse losing their job through no fault of their own (layoffs, downsizing); a significant decline in commission-based or variable income; retirement at a reasonable age; disability that prevents continued employment; or a significant increase in the supported spouse's income.

Changes must be genuine and significant — not done to game the system — and generally need to exceed five to ten percent. A court will not modify alimony where the paying spouse voluntarily quit or was terminated for misconduct. When negotiating an initial alimony agreement, a good attorney will try to build in provisions addressing foreseeable events like retirement to avoid the expense of a future modification case.