"What is Alimony?"
The official definition is: "Alimony is a substitute for the support which a spouse (typically the Wife, but not always) normally receives as a result of the marital relationship."
The reason that alimony is awarded: "The Family Court Judge trys to place the supported spouse (as nearly as is practical) in the position of support the spouse enjoyed during the marriage.
"How long does it last?"
Alimony is typically ordered to be paid in monthly payments. Sometimes it is awarded as a lump sum. It may also be awarded as permanent support (no specific ending point) or as temporary support (for a limited period of time).
"Why does Alimony exist?"
Alimony is a sum of money that one spouse is ordered to pay for the support of the other spouse in a divorce case. Alimony exists because it is the law in South Carolina. Alimony is ordered because the Family Court sees fit to award it. History books tell us that alimony was founded on the natural and legal duty of one spouse to support the other spouse. Alimony has been called "a substitute for the statutory right to marital support."
In the old days, the courts were concerned that if a husband did not pay alimony, a divorced wife might otherwise "be turned out destitute on the streets or led into temptation." Even though in modern times many traditional gender roles have been rejected by society, the financial dependency of wives on their husbands has continued in many marriages. Judges in South Carolina must follow the alimony statute when awarding alimony. The law does not provide "all the answers." Many "traditional" views still permeate the Family Court when the issue of alimony has to be decided by the judge.
"Why does Alimony exist?" One way to answer this question is: "Alimony is designed to compensate a spouse for faithful service." Many judges believe that a spouse who gives up other marital prospects, who gives up career plans, who takes primary responsibility for raising the children, who is faithful, and who does not cause the breakup of the marriage should be supported by the other spouse.
"Can I ask for Alimony after I am divorced?"
No. Alimony cannot be awarded after you are divorced. You must ask for alimony when you file for divorce or when you file for separation. After the divorce (or separation) is final, it is too late to ask for alimony.
"Are there different types of Alimony?"
Yes. There are different types of alimony in South Carolina.
Permanent Periodic Alimony. This is the type of alimony that is most likely to be awarded by the Family Court in South Carolina. If, for example, you are the wife and the court awards you "permanent periodic alimony" in the amount of $1,000.00 per month, then your husband will be under a court order to pay you $1,000.00 per month until: (1) you die; or (2) he dies; or (3) you re-marry; or (4) you live with someone in a romantic relationship. Then the alimony will stop.
Family Court, unfortunately, is not very consistent in awarding alimony, so it is very difficult to predict if your case is an "Alimony Case." However, the three most significant factors that enter into the Family Court Judge's decision regarding alimony are: (1) the duration of the marriage, (2) the overall financial situation of the parties (especially the ability of the supporting spouse to pay), and (3) whether either spouse was more at fault than the other. If the marriage was a long one, one spouse has a very good career, the other has limited career opportunities, and the party with the higher earning ability is at fault, periodic alimony will almost always be awarded. On the other hand, if the marriage was brief, the parties have relatively equal earning abilities, and neither party is more at fault than the other, no alimony should be awarded. The results in other types of cases are more difficult to predict. A full interview with a qualified Family Court Attorney is necessary to determine if you case is an "alimony case."
Lump Sum Alimony. This form of alimony is rarely awarded by the judge. It is usually awarded when there is great uncertainty as to whether the paying spouse will continue to make regular payments over time.
Rehabilitative Alimony. This is also very rarely awarded by the Family Court. When it is awarded, it is paid for a period of time, usually to allow the supported spouse "to get back on her feet" or to "get an education."
Reimbursement Alimony.
This type of alimony can be used to compensate one spouse for contributions to the professional degree of the other. In other words, if a wife works to help put her husband through medical school, the Family Court can order that the husband "reimburse" his wife.
Separate Support and Maintenance. This is the term used by the court to describe alimony that is paid before the parties are divorced. "Separate support and maintenance" is essentially the same thing as "alimony."
"How much Alimony will I have to pay?"
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"How much Alimony will I receive?"
The amount of alimony you may be ordered to pay (if you have to pay it at all), and the amount of alimony you will receive (if you receive any at all) is determined by the Family Court Judge. There is no "formula" that the judge uses. There is no "alimony chart" or "alimony table" that the judge looks at. The law says that the entitlement to alimony and the amount of alimony are matters that rest solely in the discretion of the judge.
The law gives the judge almost unbridled discretion when considering how much alimony to award. However, there are certain factors that the judge must consider while contemplating his decision.
No alimony for a spouse who commits adultery. The law in South Carolina states that no alimony may be awarded to a spouse who commits adultery before: (1) the formal signing of a written property or marital settlement agreement, or (2) the signing of a Final Separation Order. This is a hard and fast rule, and there are no exceptions!
The law lists at least thirteen factors that the judge must consider in awarding alimony. Each of these factors must be individually considered by the judge.
The duration of the marriage. If the marriage was a long one, one spouse has a better career opportunity than the other, and the party with the higher earning ability is at fault, periodic alimony will almost always be awarded. On the other hand, if the marriage was brief, the parties have relatively equal earning abilities, and neither party was more at fault than the other, no alimony should be awarded.
Physical and emotional condition. The law requires the judge to consider and give appropriate weight to "the physical and emotional condition of each spouse." A spouse with physical and/or emotional health issues is more likely to receive alimony.
Educational background. The law also states that in making an award of alimony, the Family Court must consider and give appropriate weight to "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." The importance of this factor is to aid the court in evaluating the parties relative earning capacities.
Employment history and earning potential. The judge must also consider and give appropriate weight to "the employment history and earning potential of each spouse." A spouse who has been working for a long time in a career field with the potential of earning a substantial amount of money is more likely to pay alimony to a spouse who never completed high school and has been out of the job market for the entire marriage.
Standard of living during the marriage. The court must consider and give appropriate weight to "the standard of living established during the marriage." It is difficult to explain exactly what this means, but, generally, a spouse that enjoyed a high standard of living will not be "tossed into the street" if the other spouse can afford to pay alimony.
Earnings. The Family Court must consider and give appropriate weight to "the current and reasonably anticipated earnings of both spouses" in making an award of alimony. This factor and others related to the assets and earning capacities of the parties are likely to be an important aspect of the judge's decision-making process in deciding whether or not to award alimony. If both parties are already equally capable of supporting themselves, there is no need for alimony.
Expenses and needs. The judge must consider and give appropriate weight to "the current and reasonably anticipated expenses and needs of both spouses." For example, the family court may award less alimony to a mother when the father is solely responsible for a child's college expenses.
Marital and non-marital properties. The court must consider and give appropriate weight to "the marital and non-marital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action." The Family Court judge has to consider how the property accumulated during the marriage was divided before an award of alimony can be made.
Custody of the children. In making an award of alimony, the judge must consider and give appropriate weight to "custody of the children." Alimony may be awarded above and beyond child support, 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.
Marital misconduct or fault. The judge is also required to consider and give appropriate weight to the marital misconduct or fault of either or both parties. The judge has to decide whether or not the misconduct affects or has affected the economic circumstances of the parties, or whether it contributed to the breakup of the marriage. This is the one factor that may seem to be the most unfair, but, regardless of whether or not it is fair, it is the law in South Carolina.
Tax consequences. The Family Court must also consider and give appropriate weight to the tax consequences of each party as a result of the particular type and amount of alimony awarded.
Other support obligations. In making an award of alimony, the judge must consider and give appropriate weight to "the existence and extent of any support obligation from a prior marriage or for any other reason of either party." In other words, the court has to consider if a spouse is already paying child support or alimony from a previous marriage. Even though the court is supposed to consider this factor, it is very common and routine for a spouse to be ordered to pay alimony, even though he is already paying alimony to a former spouse.
Other relevant factors. This is a "catch-all" provision. The judge must consider and give appropriate weight to "such other factors the court considers relevant."
"What if I don't pay my spouse?"
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"What if my spouse won't pay me?"
If a valid court order exists, a person who is obligated to pay alimony can be held in contempt of court for not paying the required amount on time. If alimony is not paid, the court can put the offender in prison for up to one year.
"Warning!"
This webpage only "scratches the surface" concerning the issue of alimony. Only a licensed, qualified attorney who practices in the Family Court can adequately address your individual needs and questions.
