When Can You Expect Alimony or Separate Support and Maintenance be Awarded?
Alimony, or economic support for the relatively disadvantaged spouse, is usually awarded in the divorce decree, but can also be awarded during separation while the divorce is pending. Every case is unique, but depending on the individual circumstances, one spouse can be required to pay alimony to the other spouse. The purpose is to assist them in getting re-established and/or maintaining their current economic status. In the more typical scenario, it is the more affluent spouse paying the less affluent spouse. Because most couples today have relationships where each spouse earns an income, the current trend is to award less alimony than in the past. Alimony is not meant to punish the paying spouse. Rather, it merely operates to put an economically dependent spouse in a financially secure situation post-divorce.
Facing or going through a divorce is stressful enough all by itself. You may have been married for years or only for a short period. One of the biggest concerns is always “what is this going to cost me?” If you have been married for only a brief time, you will most likely NOT have to pay long-term spousal support. In fact, in certain individual circumstances, you may not have to pay any alimony at all. Alimony was never intended to be used as a “free ride” or “parting gift.” However, for marriages that have lasted for years and where one spouse has given up a job or career to support the other, alimony will definitely be a significant issue in divorce.
Given the initial emotions involved in virtually every marriage breakup, it is common that the leaving spouse wants to be fair. This is usually an attempt to make things easier and even to assuage some feelings of guilt. However, you do not want to “give away the farm” while you are vulnerable to making poor decisions. This is an area where we can help guide you through this complicated and difficult part of the divorce process.
Forms of Alimony Available
In South Carolina, there are five (5) types of alimony available. First, there is “temporary alimony” or “spousal support” while a case is pending (between filing and a final trial). During this interim period, both parties can get acclimated to their new financial environment. Temporary alimony does not necessarily result in permanent alimony in a final award.
Another type of potential alimony is “rehabilitative spousal support.” Payments here are limited and intended to assist an affected spouse to get additional education or training to “get back in the game.” If the spouse does not put forth sufficient effort or drops out of school, the Court can terminate this part of an award.
There is also “reimbursement spousal support” available in certain situations. The usual circumstance involves one spouse who “put another spouse through school.” After the other spouse’s training is complete and they start their career, the marriage ends. The “supporting spouse” can effectively seek some portion of reimbursement for their previous efforts and financial contribution.
“Lump sum” spousal support is usually preferred by couples without children who simply want to “get on with their lives.” The difficulty is reaching an agreement on the amount. If this form of alimony is to work, both parties will have to reach a fair compromise. It is also recommended that each party have independent family lawyers review any initial agreement. Terms will usually have to be added, and any such agreement will have to be approved by a Family Court judge.
The final form of alimony is “permanent periodic spousal support.” This is the type most commonly issued and preferred by the courts. The alimony is paid regularly (typically each month) to a spouse who cannot support his or herself alone. Periodic alimony terminates if either spouse dies, or if the recipient spouse remarries or has been living with a member of the opposite sex for at least ninety (90) consecutive days. S.C. Code § 20-3-130(B). Finally, the paying spouse can petition the court to end their alimony obligation if he or she can show “a substantial change in circumstances” (for example, if the recipient spouse significantly increases his or her earnings or receives a large inheritance). Further, initial awards are subject to being modified or terminated based on a “material change in circumstances.” One alimony stereotype is that you can get alimony until you die. This belief is not always the case, and actions to modify or even terminate prior alimony awards are quite common.
Factors Considered in Determining Alimony
The court has wide discretion in awarding alimony to the requesting party and will take into account a number of factors, including, but not limited to, the physical and emotional condition of each spouse; the standard of living established during marriage; each spouse’s employment history; and the current and anticipated earnings and expenses of both spouses. The Court will also consider the length of the marriage, the ages of the parties, the educational and work background of each spouse, the need for retraining of either spouse, custody of children, existing court obligations, tax consequences of an award, marital misconduct, and other factors. A complete list of factors can be found in the South Carolina Code, § 20-3-130(C).
Importantly, the court can also consider marital fault when setting alimony whenever the fault (habitual drunkenness, adultery, etc.) affected the economic circumstances of the parties or contributed to the breakup of the relationship. Adultery is a complete bar to alimony, which means that no spousal support will be awarded to a spouse who has engaged in extra-marital sexual intercourse (or mere “sexual intimacy” in some cases) before the signing of a property settlement agreement or the entry of a final order of support, whichever occurs first. Such adultery claim must be proven and cannot be based on mere suspicion or gossip. The use of private investigators is often required to establish this important, even if embarrassing, part of a divorce claim.
Financial Declaration Statement
The most important document the court considers in setting alimony is your financial declaration. It is critical that you fully understand your actual expenses and total income, as well as the tax implications of an award of alimony. Completion of this document is often tedious and time consuming. However, your time spent here will be rewarded. You must be both thorough and complete. Accuracy is paramount as any “errors” could be used against you to portray your submission as calculating or even fraudulent. Your credibility before a Family Court judge can be determinative. Be aware that the form required by the Family Court combines many budget line items into one category. You need to make sure all of your expenses are included even if a category seems to be missing. We will counsel and guide you through every step of the process. But this step sets the bar for all other financial aspects of your case.
Your lawyer can explain the details of each type of alimony and whether you qualify for one or the other. It is also important to ask your lawyer about the tax consequences of being the recipient or payor spouse. Generally, the recipient spouse must include support payments in his or her income filings while payments by the other spouse are tax deductible. Child support payments, on the other hand, are usually not taxed by the receiving spouse but also not deductible by the supporting spouse. We strongly encourage any particular questions about tax issues be resolved with your accountant or tax advisor. We will provide you with the basic framework, but every person’s financial circumstance is different.
As you can see, there are many complicated issues involved, even in a “simple divorce.” For couples with significant earnings and no children, it is prudent to have any agreement reviewed by an experienced Fort Mill divorce lawyer. We would be honored to help get you through this final step. We are not here to generate unnecessary controversy. But, you should absolutely be certain before you sign any final terms. Also, any agreement must be submitted for Family Court review and be approved. It is worth the investment to have experienced counsel standing beside you in court.
Alimony Lawyers of Robert J. Reeves P.C.
In Fort Mill, Tega Cay, and Indian Land, you can get answers now to your questions from our experienced and compassionate family law attorneys. Our office is located here in Baxter Village above the Grapevine Wine Bar on Market Street. We also have a Charlotte office as many of our clients work there and would prefer to meet in private. We also make ourselves available after hours for your privacy and convenience. You can reach Fort Mill divorce lawyer Tom Holland on his mobile phone 803.288.3885 or Robert J. Reeves at 803.554.4157. Call us now and let’s discuss your options. You will sleep better once you know what to expect. Try not to worry. We can help get you through this ordeal.